Assuring Civil Rights Protection with State ESEA Flexibility Waivers

Bradley Scott, Ph.D.

The discussion about the big initiatives the U.S. Department of Education and the administration have undertaken does not end with the Common Core State Standards (Scott, 2013). It must extend to the ESEA state flexibility waivers. The Secretary of Education offered an invitation to all states and territories to apply for flexibility waivers to meet the student achievement targets that were set in the original No Child Left Behind Act. Since states were experiencing difficulty in achieving or even approaching the targets for 2014, which in 2001 seemed to be a long way off, states and school districts established very ambitious annual goals. 2014 is practically here and, clearly, achieving grade level proficiency and success for all students will not happen by then.

The invitation to apply for flexibility to reach the achievement targets by 2014 in a different way as determined by the state and approved by the U.S. Department of Education is as much of a civil rights concern for diverse learners as is the implementation of the Common Core. Thirty-four states and the District of Columbia are approved for ESEA flexibility. Other states have applied and are awaiting review and approval. This article lays out some of the civil rights concerns that may arise around the plans for flexibility that have been submitted and approved by the U.S. Department of Education.

The Elementary and Secondary Education Act (ESEA) Flexibility Wavers:

  • Create an individual way for states to respond to the requirements of NCLB,
  •  Create an opportunity to focus on improving student learning and improve the quality of instruction,
  •  Intend to increase educational outcomes for all students,
  •  Intend to close achievement gaps, and
  •  Intend to increase equity.

The waivers rest upon four principles to improve academic performance for all students, particularly those students who attend the lowest performing schools:

  • Implementation of college- and career-ready expectations for all students;
  • State-developed differentiated recognition, accountability and support;
  • Support for effective instruction and leadership; and
  • Reduction of duplication and unnecessary (reporting) burden.

As with the Common Core Standards, there are a set of seven civil rights concerns that cannot be overlooked if, in fact, educational equity is one of the principles upon which these waivers rest. I will comment on the first two of them here. The seven civil rights concerns are:

  • The “deficit cliff”;
  • The equity context;
  • Monitoring the innovation;
  • The challenge of changing regularities;
  • Real access, inclusion and engagement of parents;
  • Data-driven decision making versus decision making that drives data; and
  • Peer review comments.

The Deficit Cliff

The deficit cliff is a concept that describes how people in certain school settings fall into an abyss of doubt, negative belief and low aspirations for certain learners based on their perceptions of those learners. Recently, I had an occasion during service training to present a session on raising expectations and performance of diverse students. The audience was a group of middle school teachers on a Title I campus (serving a high number of economically disadvantaged students). I thought I was doing a masterful job, when a small group of teachers began to resist and balk at my comments about what might be possible. They began to tell me that the things I was saying were good and might work “but not with our kids.”

“What you don’t understand, Dr. Scott, is that our kids are not the college-going kind. Most of them will end up like their parents. They will drop out of school and work the fields or other low-skill jobs.”

“Oh, there will be some who will make it to college, but they will be the exception.”

“They’re good kids, and we want what we know is best for them. You can help us most by giving us insight on how to properly prepare them for what most of them will do.”

Their words rattled within me, shaking my insides to dust. I had to stop them for their sake and my own sanity. I said to them: “Do you hear yourselves? Is this what you believe is possible for these students? Can’t you imagine anything more for them? Can’t you see any other ends to which they might aspire with your help and support? If you are willing to say this about them to me, an outsider you don’t know, what messages must you be sending to them on a daily basis in a thousand subtle and not-so-subtle ways? Is this really the best you can hope for them? What a dismal, disappointing place this is to come to every day.”

It stunned them and offended some. My concern is that the waivers focusing on Title I schools that are failing that are the lowest performing in a district and state may give many stakeholders a reason to jump off the deficit cliff into the abyss of blaming students because of their race, ethnicity, language, poverty, disability, gender or many other descriptors of difference, and these learners may never have a chance to do better, be better and be more successful. Interestingly, the staff I was speaking with was about 45 percent Latino, and the campus student population was more than 80 percent Latino. My point in mentioning this is that even “minorities” can fall over this deficit cliff and do the same harm regarding diverse learners as their non-minority counterparts.

What these teachers were saying about their students’ futures will come true if the teachers continue on their current path. The challenge will be to raise ourselves and our doing to higher levels of being, expectation and performance so that we elevate learners to theirs.

The Equity Context

The equity context has been previously described in this newsletter (Scott, 2013). My concern about the waivers is threefold.

First, it is not clear that the plans for flexibility that were submitted and approved have been constructed to answer certain “questions of impact,” like: What might create a negative or adverse impact on any identifiable population of students? and, How do we address any adverse impact? among others (Scott, 2013). In fact, some of the things being proposed, (like the creation of “super groups” that may combine for example English learners and disabled learners who also are American Indian into one group) will thereby mask or hide the performance of certain student populations. This is a civil rights concern that could take us back to a pre-NCLB era.

Second, not using an equity context may inadvertently give permission to highly qualified teachers and leaders to conduct business as usual, thus ensuring a deficit approach to reform, instruction, innovation and the institutionalization of inappropriate and ineffective practice that likely will reproduce the same bad outcomes for students, and particularly for certain groups of students, as we have seen during the past 10 years of NCLB implementation.

Finally, implementing an equity lens without preparing teachers and leaders to build their knowledge and understanding about these powerful notions, thoughtfully and intentionally creating systems change as described in the IDRA Quality School Actions Framework (Robledo Montecel & Goodman, 2010), will not succeed. Neither will neglecting to help these teachers and leaders to build personal capacity to properly engage other stakeholders, including parents, and garner their support, input, involvement and participation. Stakeholders must be committed to different outcomes driven by different regularities and practices of habit.

These civil rights concerns can best addressed and established to benefit all learners. I am convinced of this, but it will require an approach that creates a different truth, a more specific intention, a more powerful commitment and a higher level of expectation about what is possible. The only question I have is: Are we really up to the task?

Resources

Robledo Montecel, M., & C. Goodman (eds). Courage to Connect: A Quality Schools Action Framework™, (San Antonio, Texas: Intercultural Development Research Association, 2010).

Scott, B. “Building a Civil Rights Juggernaut Using the Common Core Standards,” IDRA Newsletter (San Antonio, Texas: Intercultural Development Research Association, February 2013).

Bradley Scott, Ph.D., is a senior education associate in IDRA Field Services. Comments and questions may be directed to him via email at feedback@idra.org.

[©2013, IDRA. This article originally appeared in the May 2013 IDRA Newsletter by the Intercultural Development Research Association. Every effort has been made to maintain the content in its original form. However, accompanying charts and graphs may not be provided here. To receive a copy of the original article by mail or fax, please fill out our information request and feedback form. Permission to reproduce this article is granted provided the article is reprinted in its entirety and proper credit is given to IDRA and the author.] 

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