MIAMI - In its initial review of No Child Left Behind waiver requests, the U.S. Education Department highlighted a similar weakness in nearly every application: States did not do enough to ensure schools would be held accountable for the performance of all students.
The Obama administration praised the states for their high academic standards. But nearly every application was criticized for being loose about setting high goals and, when necessary, interventions for all student groups - including minorities, the disabled and low-income - or for failing to create sufficient incentives to close the achievement gap.
Under No Child Left Behind, schools where even one group of students falls behind are considered out of compliance and subject to interventions. The law has been championed for helping shed light on education inequalities, but most now agree it is due for change.
Indiana's proposal to opt out of the federal law's strictest requirements was criticized by the Education Department for its "inattention" to certain groups, like students still learning the English language. New Mexico's plan, a panel of peer reviewers noted, did not include accountability and interventions for student subgroups based on factors like achievement and graduation rates. In Florida, the department expressed concern that the performance of some groups of students could go overlooked.
The concerns were outlined in letters sent last December by the administration to the 11 states that have applied for a waiver. Since then, state and federal officials have been talking about how to address the concerns; some states have already agreed to changes.
The letters were obtained by The Associated Press for all of the states except Tennessee and Kentucky, which declined to provide them until an announcement is made on whether a waiver is granted. The Education Department has previously said it expected to notify states by mid-January.
"Our priority is protecting children and maintaining a high bar even as we give states more flexibility to get more resources to the children most in need, even if that means the process takes a little longer than we anticipated," said Daren Briscoe, a department spokesman.
Jack Jennings, president of the Center on Education Policy, said federal officials are in a challenging spot.
"The current law means that each group of kids, whether they are children with a disability, or African-American, or poor kids, have attention paid to them, because the schools are accountable for each and every group," said Jennings. "But what the states are asking is that they all be lumped together."
The Bush-era law is aimed at making sure 100 percent of students reach proficiency in math and reading by 2014, a goal states are far from achieving. As that year draws closer, more and more schools are expected to fall out of compliance, subjecting them to penalties that range from after-school tutoring to closure.
While there is bipartisan agreement the 2002 law needs to be fixed, Congress has not passed a comprehensive reform. President Barack Obama announced in September that states could apply for waivers and scrap the proficiency requirement if they met conditions designed to better prepare and test students.
The 11 states that applied for the first round of waivers were Colorado, Florida, Georgia, Indiana, Kentucky, Oklahoma, Massachusetts, Minnesota, New Jersey, New Mexico and Tennessee. Many more states are expected to request waivers in the second round - meaning all eyes will be on the first approvals.
The Center on Education Policy analyzed all the waiver requests and found that in nine of the 11 states, almost all decisions on penalties and interventions would be based on the performance of two groups: all students and a "disadvantaged" group that would replace the current system of separate categories of students according to race, ethnicity, income, disability and English language proficiency.
Those separate categories are at the heart of what No Child Left Behind aimed to correct - vast achievement gaps between white, black and Hispanic students, between the affluent and low-income - and what most agree is the problem with the law: If any one of these groups of students does not meet the state's annual benchmarks for proficiency in reading and math, the school is labeled as "failing."
In a letter sent Jan. 17, Sen. Tom Harkin, D-Iowa, and Rep. George Miller, D-Calif., urged Education Secretary Arne Duncan to require strong accountability measures and ensure civil rights and educational equity gains under No Child Left Behind are not lost.
"We fear that putting students with disabilities, English language learners and minority students into one 'super subgroup' will mask the individual needs of these distinct student subgroups," they said.
In the feedback provided to states by a panel of peer reviewers in December, many states were praised for plans to institute college and career-ready standards and develop teacher evaluation systems that take into account student growth - two hallmarks of the Obama administration's education policy. The panel's concerns varied, but meeting the needs of all groups of students was one consistent theme.
In New Mexico, for example, the U.S. Education Department expressed concern about a lack of incentives to close achievement gaps and hold schools accountable for the performance of all students. In a follow-up letter sent late in January, subgroup accountability was still an area of concern.
Hanna Skandera, secretary designate for the New Mexico Public Education Department, said the state's original plan did include breaking down data on student performance by subgroup on each school's report card. But after conversations with the U.S. Education Department, schools will be adding information on whether they are on track for progress and growth in meeting annual targets. If a group falls behind, schools will be subject to intervention measures.
"We had high level reporting," Skandera said. "Now we're going to provide another layer so everything is crystal clear to parents across the state."
Minnesota's initial feedback included concern about "the lack of incentives to improve achievement for all groups of students and narrow achievement gap between subgroups." Sam Kramer, federal education policy specialist for the Minnesota Department of Education, said most of that criticism was focused on the state's graduation rate. In its initial submission, the state did not take into account the graduation rate of different subgroups in its annual targets.
After receiving the letter, the state switched to a system that will take into account how subgroups of students did in meeting those graduation targets.
Kramer said he thinks Minnesota will be better able to meet the needs of disadvantaged groups of students under the new system.
"No Child Left Behind was very good at diagnosing the problem," Kramer said. "It was very good at shining a light on the differences between subgroups."
It was less effective, he said, at offering successful ways to help improve.
"We are going to be able to go in and be flexible and reactive to the specific needs of those subgroups," Kramer said.
Pedro Noguera, an education professor at New York University, said the struggle by school districts to lift the performance of different groups of students is a signal of a deeper problem that won't be solved by waivers.
"We need to make sure the districts and schools feel some pressure to make sure that all the students they are responsible for are being educated," he said. "However, they need to focus on different kinds of evidence, and not merely performance on a standardized test. That's where they don't get it."