ATPE summary of ESEA flexibility granted to Texas in September 2013

In response to a request from Commissioner of Education Michael Williams and the Texas Education Agency (TEA), the U.S. Department of Education has granted the state of Texas and its schools a conditional waiver of certain requirements of the federal Elementary and Secondary Education Act (ESEA) of 1965, which is also known as the No Child Left Behind Act. The waiver, announced Sept. 30, covers the current 2013-14 school year but could be extended if Texas complies with a condition related to teacher evaluation that U.S. Secretary of Education Arne Duncan has attached to the waiver. With the receipt of this waiver, Texas joins the vast majority of states that have already sought and been approved for exemptions from the outdated law pending its long-overdue reauthorization by Congress.

Perhaps most significantly, the ESEA waiver allows Texas to substitute our own state accountability rating system in place of federal Adequate Yearly Progress (AYP) calculations and requirements for districts and campuses. In the waiver request, TEA proposed a seven-year plan of “ambitious, yet achievable” annual measurable objectives (AMOs) to be used in lieu of the federal AYP performance targets. These AMOs include a state target of 100-percent student proficiency based on performance on the English/language arts/reading and math STAAR exams by the 2019-20 school year, as well as cutting in half the minimum number of students required for subgroup accountability (also known as the “n size” of the sample).

The waiver frees the state and school districts from some requirements that would otherwise require them to take specific corrective actions in schools and districts that have failed to make AYP for two consecutive years or more. These include most requirements pertaining to supplemental educational services (school choice) that must be offered to students. TEA anticipates that this waiver will enable the agency to implement a single system of interventions tied to the state’s accountability system rather than requiring districts to comply with two discrete systems of measuring schools’ progress under differing state and federal regulations.

The waiver also exempts districts that do not meet Highly Qualified Teacher (HQT) targets from complying with certain requirements for improvement plans and the use of ESEA funds. Texas must still ensure that poor and minority children are not taught by inexperienced, unqualified or out-of-field teachers at higher rates than other children; however, Texas may eventually be able to satisfy that requirement by demonstrating its use of evaluation and support systems that comply with the third of four principles set forth by President Barack Obama’s administration (see below).

Much of the ESEA waiver pertains to relaxing restrictions on the use of federal funds. The waiver gives TEA more flexibility to use Title I, Part A funds for schools it identifies as “priority,” “focus” or “reward” schools.1 It also provides flexibility in the state’s rank ordering of priority schools. The state may use Title I funds for any Title I-eligible high school with a 60-percent or lower graduation rate that TEA has identified as a priority school, regardless of its poverty level.

The waiver allows for the implementation of schoolwide intervention programs in certain Title I schools that would not otherwise meet ESEA’s 40 percent poverty threshold for schoolwide programs; the school would have to be identified by TEA as a priority or focus school and the district would have to implement interventions that are consistent with federally-established “turnaround principles”2 or are based on the needs of the school’s students and designed to enhance the school’s entire education program.

The waiver also gives TEA flexibility to award School Improvement Grant (SIG) funds to schools that fall outside the narrow federal definition of a Tier I school. This enables Texas to use the funds for implementation of one of four SIG models at any school TEA identifies as a priority school.

In addition, a district that receives funds under the Small, Rural School Achievement Program or Rural and Low-Income School Program will now have flexibility to use those funds for any authorized purpose regardless of the district’s AYP status or its achievement of state accountability targets.

ESEA limits the state’s and districts’ ability to transfer funding between different ESEA programs. Under this waiver, TEA and districts may transfer up to 100 percent of the funds from a covered program into another covered program or into Title I, Part A. Further, there will be no notice requirements prior to the transfer of funds.

Finally, ESEA requires certain 21st Century Community Learning Centers to use their federal grant funds only for activities that take place outside the time frame of the regular school day. The waiver will allow centers in Texas to use their federal funding to support expanded learning time during the school day as well as during non-school hours or time periods.

In order to receive the ESEA waiver, Texas has implemented or agreed to implement reforms that adhere to these four principles set forth by President Obama’s administration:

  1. college- and career-ready expectations for all students;
  2. a system of differentiated recognition, accountability, and support for all Title I districts and schools in the State;
  3. supporting effective instruction and leadership; and
  4. reducing duplication and unnecessary burden on districts and schools.

Texas has complied with the first principle through its early adoption of college and career readiness standards and its work to integrate those standards into the Texas Essential Knowledge and Skills (TEKS). A new state accountability and assessment system is already being implemented in fulfillment of the second principle. TEA has agreed to evaluate and revise its administrative requirements in order to satisfy the fourth principle. Thus, the most noteworthy of the assurances made by TEA and the basis for Secretary Duncan’s decision to grant Texas only a “conditional” waiver for the 2013-14 school year is the state’s plan to work toward implementation of principle 3.

The U.S. Department of Education interprets the third principle of supporting effective instruction and leadership as an obligation for states to develop, adopt, pilot and implement teacher and principal evaluation and support systems that support student achievement. TEA has promised to develop final guidelines for teacher and principal evaluation that meet the department’s criteria and submit them for review by May 2, 2014. Texas will have to show that its evaluation and support systems for educators include the use of student growth “as a significant factor in determining a teacher’s or principal’s summative evaluation rating,” or else the ESEA waiver for the state and its school districts will expire at the end of this school year.

Watch for more information about TEA’s redesign of teacher and principal appraisal systems coming soon to Teach the Vote.


1 In short, “priority schools” are Texas’ lowest performing schools, making up at least five percent of the state’s Title I schools. Priority schools might include those with the poorest performance on state assessments, schools with persistently low graduation rates, or SIG intervention schools. “Focus schools” make up at least 10 percent of the Title I schools in Texas and are those with the most substantial achievement gaps. “Reward schools” are Title I schools with the highest graduation rates and students performing at the highest level on state assessments over several years; schools in the top ten percent of Title I schools making “high progress” in improving their graduation rates and student performance on state assessments might also be categorized as reward schools. Schools with significant achievement gaps are ineligible to be identified as reward schools.

2 According to the U.S. Department of Education, these “turnaround principles” include such measures as evaluating and terminating the employment of teachers and principals deemed ineffective and unlikely to contribute to a successful turnaround of the school; restructuring the school day, week or year; and improving school safety and discipline.

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