A federal education law designed to let states determine for themselves how to hold schools accountable may leave more children behind if states are allowed to skirt federal requirements through waivers.

The Every Student Succeeds Act shifts the burden of directing education from the federal government to states and school districts, a major win for conservatives who long complained about federal intrusion. But civil rights groups and other have sounded alarms since the legislation was being drafted that too much flexibility could lead to states not devoting resources to historically underperforming students if it meant posting higher progress rates for schools. ESSA replaces No Child Left Behind (NCLB), widely panned for its heavy emphasis on test scores, which critics said led to a culture of “teaching to the test” instead of focusing on academic growth and achievement.

All 50 states and the District of Columbia were required to submit plans in either April or September to the U.S. Department of Education detailing how they will comply with ESSA. The federal government is handing over responsibility to overhaul failing schools, but states must still explain how and when they will intervene. States must also develop accountability systems that include test scores, graduation rates and student proficiency in English. In addition, they can choose other indicators of school culture such as chronic absenteeism or teacher retention, but it is left up to state officials to decide how much weight to give to each measure.

Some critics grumble that too many state plans keep a heavy focus on test scores, while others deride non-academic measures as inadequate since factors outside of schools – such as home life or parental involvement – can vary widely. All of the plans have, by now, been sent to federal officials for review and states are either receiving approval or are being asked for additional information. Some states seem to have pushed the boundaries on federal compliance, and questions are being asked regarding how the U.S. Department of Education will react.

“The Every Student Succeeds Act (ESSA) lifts the heavy hand of the federal government from education and gives states the power to create accountability systems that work for them, instead of forcing them to comply with one-size-fits-all mandates,” said John Kline, former chairman of the U.S. House Education Committee and chief architect of the law. “There are, however, requirements that each state will design programs to ensure every student is prepared for success– including administering an annual test. ESSA includes waiver authority for the secretary to be used on a case-by-case basis, but it should not be used as a means for states and school districts to get out of compliance with the law.”

Will Waivers Leave Students Behind?

Two states – New Hampshire and New York – that sent plans to Washington, D.C., in September are also submitting waiver requests to be free from certain requirements. A third, Florida, wrote its accountability plan in such a way that critics say it skirts the law. Policy experts note that U.S. Education Secretary Betsy DeVos has approved two plans – Connecticut and Tennessee – that are out of compliance with federal law but were submitted without waiver requests. Florida took the same approach, rolling the dice by failing to deal with testing requirements, addressing achievement gaps among student subgroups and English-language learners whose proficiency is a separate component under ESSA.

“What you can expect is that educational outcomes for Latinos and other subgroups will return to the way it was before No Child Left Behind,” said Brent A. Wilkes, chief executive officer for the League of United Latin American Citizens, which opposed ESSA because it watered down the rigorous subgroup accounting from NCLB, which was signed into law in 2001.

A report from Pew Research Center this month indicates that high school dropout rates for Hispanic students dropped below 10 percent in 2016 for the first time. That was coupled with a record high rate of college enrollment. Pew notes that the dropout rate has been falling for two decades – the time period in which No Child Left Behind was the predominant education law in the country.

“It doesn’t make a lot of sense to go backwards when we’ve had such outstanding success that is clearly demonstrated by the outcome,” Wilkes said. “There is such a patchwork of states across the country means that degrees from schools can mean entirely different things. There’s an alarm being sounded that students are not being prepared for careers in the United States.”

Florida has one of the highest populations of Hispanic students in the country. It also has one of the largest percentages of students enrolled as English-language learners – students who learn English at the same time they’re enrolled in grade-level classes. But these students’ proficiency rates and assessment scores tend to be among the lowest, which, under ESSA’s new accountability matrix, could lower school ratings. Florida’s plan would appear to skirt its responsibility to those students by removing them from the accountability system.

Education advocates who fought for accountability standards scored a victory when ESSA required states to track individual subgroups instead of creating “super subgroups” that combined several kinds of students. Super subgroups hid shortcomings of student populations, such as English learners, leaving them to fall between the cracks.

In a written statement, a spokeswoman for the Florida Department of Education said that officials “considered all of the public input we received to ensure our plan best meets the needs of Florida’s students. … Overall, we are confident that our plan will be the best approach for our students as well as aligning with the law.” The statement did not address specific components of the plan.

Waivers Could Make More Meaningful Plans

A 2016 report from the Brookings Institution takes a long view of ESSA, making the claim that waivers could actually help states create more meaningful accountability measures. A major shift in ESSA from previous federal law is that schools and districts must now look at multiple indicators instead of just one. And many of the methods to measure multiple indicators have yet to be created.

“Any measure that a state chooses right now is not going to be the best possible measure,” said report co-author Heather Hough, executive director of CORE-PACE Research Partnership in California.

The CORE Districts are eight large school districts in California that obtained waivers under No Child Left Behind to replace the federal accountability system with their own School Quality Improvement System. CORE is the only district-level waiver, and Hough said the work in those districts shows that innovations at the local level can contribute to more meaningful metrics. As of now, California does not have indicators for college and career readiness, although it’s being developed. She also said that multiple indicators – as required by ESSA – is a complex issue.

Waivers, such as what has allowed the CORE Districts to collaborate on systems outside of federal requirements, can lead to indicators that “actually track what students are doing,” Hough said.

“The ultimate goal is to prepare kids for college and careers,” she added. “If you had parts of states that were innovating in context of a waiver system, there’s a mechanism for those innovations to be brought into a large state plan. If you give pockets within states that flexibility, a few years down the line, everyone can benefit and there would be better measures of true student achievement.”

Tailoring Plans for States’ Needs

The long view is what officials and advocates in New Hampshire and New York are hoping to achieve with their waiver requests.

The New Hampshire legislature passed a law, which took effect in August, giving school districts the option not to administer assessments every year. Students are now tested once in an elementary grade, once in a middle school grade, and once in a high school grade. During the years students are not sitting for statewide assessments, they must still take a district-created test or other exam that meets statewide requirements. Intended to reduce the amount and weight of testing, that law nevertheless put the state out of compliance with federal law, which requires testing once each year in grades three through eight and at least once in high school. The state’s Technical Advisory on the new law notes this conflict and indicates it will apply for a waiver.

New York is looking at three waivers that will affect testing for seventh- and eighth graders, students with disabilities, and English-language learners.

The state agency issued a written statement regarding the requests: “Each of New York’s waivers have been referenced within the State’s draft ESSA plan, discussed at length by the Board of Regents and with stakeholders across the state, and made available for public comment prior to their submission to the Secretary of Education.”

Education advocates, though, were more vocal.

Nicole Brisbane, the New York state director of Democrats for Education Reform, said the idea of accountability systems needs to be rethought, saying that in some ways, education policy has gotten accountability wrong.

“It’s hard to get the focus of accountability away from punitive conversations,” she said. “Across different groups of students, we’re trying to change that conversation from you’re not performing so there’s something wrong with you. What it really should be about is students and how we’re catching them up and directing resources at the gaps at different levels.”

The waiver for English-language learners would remove those students from accountability metrics until their third school year. The intent is to give those students time to learn the new language and materials presented in English without the pressure of test scores. Brisbane acknowledged that not including students in the measurements could put their resources at-risk.

“The hope is that they are being cultivated and taught and brought up to speed over those three years,” she said.

Regardless of how well-intentioned a waiver request may be, the League of United Latin American Citizens (LULAC) would rather see the federal government hold states accountable to the law. A letter from National President Roger Rocha sent to DeVos in August stated, “LULAC National requests that [the U.S. Department of Education] reject any plans from states that, like Florida, aim to shirk their responsibility to deliver a high quality public education to every child. … The Department of Education has a responsibility to protect and serve the interests and education of all students, not the convenience of state governments. Your department should adhere to the letter of the law and ensure that every state is held accountable for the education of all students, especially the most vulnerable, underserved students, English learners, students with disabilities, and others.”

Federal officials have 120 days from the date plans are submitted to return comments and notices of approval or rejection to states.