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November 4, 2013

Submitted electronically via Federal eRulemaking Portal at http://www.regulations.gov

The Honorable Arne Duncan

Secretary of Education

United States Department of Education

400 Maryland Avenue, SW

Washington, DC 20202-2110

Re: ESEA Waiver Renewal Applications, Docket ID number ED-2013-ICCD-0014

Dear Secretary Duncan:

Thank you for the opportunity to comment on the Elementary and Secondary Education 

Act (ESEA) state waiver or “flexibility” renewal process. The Center has worked since 1972 

to expand opportunities for women and girls in the areas of education and employment, 

family economic security, and health. The waiver renewal process offers the Department of 

Education an important opportunity to ensure that states, operating with the flexibility 

afforded to them by the Department’s waivers, hold their districts and schools accountable for 

improving the performance of the most vulnerable subgroups of students. We believe the 

waiver renewal process has improved in several key areas. In particular, we commend the 

Department for its efforts to resolve state-specific implementation challenges, such as 

insufficient identification of low-performing schools and subgroups and a failure to solicit and 

respond meaningfully to community input. 

We write to highlight additional areas for improvement that will help to ensure that 

states continue to hew to the core purpose of ESEA during the waiver period. In particular, we

urge the Department to scrutinize very seriously the representations states make in their 

waiver renewal applications regarding their reporting and usage of data and regarding their 

commitments to transparency and stakeholder input. We believe these requirements can serve 

as key indicators to whether states are continuing to prioritize the students that have been 

historically overlooked and underserved in our nation’s schools.

I. To Ensure that Schools Respond to the Needs of all Students, the Department 

Should Disallow the Use of “Supergroups” and Require that States and Districts 

Report Subgroup Data that is Fully Disaggregated and Cross-tabulated by 

Race/Ethnicity and Gender.

We commend the Department for its plan to work with states to ensure they are 

identifying low-performing schools and subgroups. We understand the Department has 

recently conducted a review of the extent to which each state system identified lowperforming schools and subgroups, using data from 2010-11 and 2011-12 on various 
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measures including student achievement, graduation rates, and performance against AMOs 

and graduation rate targets. The Renewal Guidance states that, where a state system “is not 

identifying low-performing schools and subgroups appropriately or sufficiently,” the

Department will work with the state to determine the cause of such misidentification or underidentification and require the state to revise the way it collects and reports data.1

We appreciate the Department’s plan to scrutinize the way that states are tracking 

subgroups and their performance. Collecting the right data to properly document the 

performance of traditionally underserved student groups is critically important to the 

realization of ESEA’s civil rights objective. Unfortunately, under the waivers, some states 

combine subgroups of students – such as racial and ethnic minorities, low-income students, 

students with disabilities, and English language learners – together into one “supergroup” and 

use data for the aggregated supergroup to rate schools, identify them as “priority” or “focus” 

schools, and make decisions about interventions. For example, Arkansas combined lowincome students, students with disabilities, and English-language learners into one subgroup, 

and Kentucky combined Black, Latino, American Indian, low-income, and English-language 

learner students together.

This approach increases the chances that (1) schools that are failing particular subgroups 

of students will not be identified as needing improvement; and that (2) interventions will not 

be tailored appropriately and effectively to the needs of the very groups that ESEA is meant to 

protect. Lumping all traditionally underserved subgroups into a “supergroup” has the effect of 

masking the reality for smaller subgroups that face different challenges and require different 

interventions. In the waiver renewal process, the Department has an opportunity to ensure that 

schools are no longer planning to rely on aggregated data that masks the performance of 

vulnerable subgroups.

Additionally, we urge the Department to require states and districts to collect and 

disseminate more segmented data on the performance of student subgroups. Data reported by 

states and districts on graduation rates, academic assessments, and any other indicators of 

student performance should be fully disaggregated and cross-tabulated by gender and 

race/ethnicity. In its most recent effort to reauthorize ESEA, the Senate HELP Committee 

approved a bill that would require data to be reported in this manner, an important step toward 

ensuring that the data reporting requirements in ESEA are meaningful and that issues faced by 

particular subgroups of students are not masked. 

II. The Department Should Require States to Demonstrate that they are Carefully 

Considering Stakeholder Input and Incorporating Community Feedback into 

their Plans.

To ensure that community input is given the full weight it deserves, state waiver 

applications must provide for a clear mechanism for community input. We therefore are 

pleased to see that the Renewal Form requires states to provide a description of how they 

engaged diverse communities and the specific changes they made as a result of these 

 1 U.S. Dep’t of Educ., ESEA Flexibility: Renewal Guidance for Window 1 and 2 States 11 (Aug. 29, 2013), 

available at http://www.regulations.gov/#!documentDetail;D=ED-2013-ICCD-0114-0002.
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consultations. This is a marked improvement over the previous application process. But the 

Department should provide a more detailed framework to guide states as to what evidence is 

needed. Particularly since some states’ initial waiver applications misrepresented what efforts 

were made to reach out to stakeholders, in the renewal applications states should be required 

to chronicle the extent of their engagement with community groups, when the engagement 

occurred and with what frequency, and the process states used to integrate the community’s 

feedback into their decision making.

III. The Department Must Ensure Transparency in the Waiver Renewal Process. 

The Department must ensure that the waiver renewal process is open and transparent 

for everyone, at every stage in the process. For example, we understand the Department has 

conducted an analysis of data on the differentiated recognition, accountability, and support 

systems implemented by states under the waivers and how schools and students have fared 

under these systems. According to the Renewal Guidance, results of these analyses were to be 

shared with State Educational Agencies beginning in October 2013. We urge the Department

to also make these data public before any waiver renewal applications are processed, with

enough time for public comment. These data also must be presented in a format that is 

accessible to parents and other stakeholders. Given the variability between state systems, we 

suggest that the Department standardize the format in which this information is presented to 

the public; the Department also should make sure the information is clear and concise, so it 

will be comprehensible to a wide range of stakeholders. Finally, we urge the Department to

subject waiver renewal applications to a peer review process for evaluation, to ensure the 

most robust review possible.

* * *

In exchange for a renewed waiver of statutory or regulatory requirements, states, 

districts, and schools should have to prove that they are taking the steps necessary to ensure 

educational equity and high standards for all students. We appreciate the opportunity to 

comment on the Department’s consideration of waiver renewal applications. If you have any 

questions, please contact Lara S. Kaufmann at (202) 588-5180.

Sincerely, 

 

Fatima Goss Graves

Vice President for Education & Employment

Lara Kaufmann

Senior Counsel & Director of Education Policy 

for At-Risk Students