John King Is Violating Intent Of ESSA By Approving Illegal Flexibility Waivers For Delaware Through 2019

I was wondering why the Delaware Department of Education went to all the trouble of submitting an ESEA flexibility waiver for a dubious standard called the state’s “speaking and listening standards” last March.  ESEA effectively ended on July 31st this year.  Now we know why.  Because it allowed the Delaware DOE to continue the same damaging and disturbing accountability practices for not just this school year, but through the end of the 2018-2019 school year.

This waiver was very odd to begin with.  Yes, there is speaking and listening standards.  It is part of Delaware’s Common Core State Standards.  But to submit an ESEA Flex Waiver for this is ludicrous.  But it doesn’t end there.  The Delaware DOE was not forthright and honest with the process of applying for this waiver.  As part of state code, Delaware is required to have an advisory committee to approve these waivers.  This was the DESS Advisory Committee.  For this waiver, DESS did not meet to approve it.  In fact, as per an email from Susan Haberstroh at the Delaware DOE, the group is not even active at this point.

HaberstrohDESSQuestion

DESS is, however, required under Delaware state code to review the very same things this ESEA flexibility waiver is meant to address:

Title14DESS

Under whose authority did Haberstroh decide DESS did not have to meet to review this flexibility waiver?  This flexibility waiver is illegal in many ways.  There is no state regulation that gives the Delaware School Success Framework any legal enforceability.  Regulation 103, which covers these accountability standards, was not updated last year.  The U.S. DOE has no authority to approve or disapprove Delaware law.  By relying on the United State Dept. of Education to decide on Delaware law, the Delaware DOE is seriously overstepping the will and intent of the Delaware Constitution.

To make things more complicated, U.S. Secretary John King is abusing his authority under the Every Student Succeeds Act by approving any accountability waivers up through 2019.  The Delaware DOE is cherry-picking what they can and can’t do with ESSA, just like John King is.  For John King, when he does this stuff, he gets hauled into congressional hearings.  When the Delaware DOE does this stuff, it gets mentioned on here.  There is no accountability method for the Delaware DOE to answer for their actions.  Someone needs to get the DOE into a public hearing to explain how they can do certain things and not others.  Because the way they interpret the law and the way it must be interpreted are two different things.  Events are progressing rapidly where the Delaware DOE is openly and flagrantly violating state law.  This can not continue and I urge our General Assembly to take immediate and definitive action against our out of control Dept. of Education.

As for U.S. Secretary of Education John King, I have already taken some action on his abuse of power.  I contacted Rep. John Kline (MN) and Senator Lamar Alexander (TN) addressing the abuse of power John King is exhibiting by approving this waiver.  As well, I submitted the following to Senator Alexander:

Good morning Senator Alexander,

I am trying to reach you in regards to the Every Student Succeeds Act. Back in March, the Delaware Department of Education submitted a flexibility waiver under ESEA to the United States Department of Education.  This was for a waiver of “speaking and listening standards” as part of our state assessment.  Our Dept. of Education stated this was a “limited waiver” and bypassed parts of our state law for how these things are approved in our state.  While I recognize you have no authority over Delaware state code, I do know you do have authority in regards to the U.S. Dept. of Education and have the ability to call out John King over abuse of power.

On August 5th, 2016, the Delaware DOE received an approval letter from Anne Whelan, the U.S. Deputy Secretary of Education, action on Secretary King’s behalf, to approve our ESEA flexibility waiver. The letter, which can be found on the Delaware Dept. of Education website under “Accountability”, and then “ESSA”, seems to give the U.S. DOE authority to grant flexibility waivers with the same accountability standards under ESEA up through June 30th, 2019.  As I am interpreting the Every Student Succeeds Act, this type of authority was explicitly stripped from the U.S. Secretary of Education.  But John King is openly and publicly defying this federal mandate by continuing the same damaging practices from No Child Left Behind and Race To The Top.

The letter states:

“After reviewing Delaware’s request, I am pleased to grant, pursuant to my authority under section 8401 (b) of the ESEA, as amended by the Every Student Succeeds Act (ESSA), a limited waiver of section 1111 (b)(3)(C)(ii) of the ESEA, as amended by the No Child Left Behind Act of 2001 (NCLB), for school year (SY) 2016-2017 and of section 1111 (b)(2)(B)(ii) of the ESEA, as amended by the ESSA, for SYs 2017-2018 and 2018-2019 so that the state’s assessment system, including the Smarter Balanced Assessment for grades 3-8 and the SAT for high school, need not measure the State’s speaking and listening standards at this time.

This waiver is granted to Delaware on the condition that it will implement the following assurances:

It will continue to meet for each year of the waiver all other requirements in the ESEA, as amended by NCLB or the ESSA, as applicable, for State assessment systems and the implementing regulations with respect to the State’s academic content and achievement standards and assessments, including reporting student achievement and school performance, disaggregated by subgroups, to parents and the public.”

In addition, by granting this waiver to Delaware, it would allow Delaware to continue accountability rules that have no regulatory approval in Delaware as required by Delaware state code. Delaware has not passed a final Accountability Framework for our public schools because there is no regulation supporting this updated matrix.  As well, the Delaware School Success Framework punishes schools for participation rates below 95% on state assessments.  While ESSA allows states to decide policies and procedures with regard to a parent’s right to opt their child out of the state assessment, Delaware has not done so in any official capacity.  The U.S. DOE is approving this illegal practice in our state which is against the spirit and intent of ESSA.  No state regulations have been approved or are even in the pipeline for approval, and the U.S. DOE is in violation of the Every Student Succeeds Act.

I implore you, as well as your other Congressional leaders, to hold Secretary King accountable for his very open defiance against the intent of Congress.

Please do not hesitate to reach out to me if you have any questions.

With warm regards,

Kevin Ohlandt

Dover, DE

Below is the letter sent from Anne Whalen to Secretary Godowsky on August 5th:

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