One of the problems with the Obama Administration’s effort to eviscerate the No Child Left Behind Act and its accountability provisions lies with its focus on just the worst-performing five percent of schools and another 10 percent of schools with wide achievement gaps. Because of this narrow focus, the administration has given 41 states and the District of Columbia carte blanch to let schools and districts — especially those in suburbia — off the hook for serving up mediocre instruction and curricula. Obama Administration officials, including U.S. Secretary of Education Arne Duncan, have defended this approach by arguing that No Child’s Adequate Yearly Progress system penalized far too many schools arbitrarily for failing to improve student achievement — and claimed that as many as 90 percent would be found failing under No Child if nothing was done. At the same time, Duncan argued that the waivers was allowing states to develop accountability systems that would put more schools under scrutiny. For one, states promised to lower the minimum number of students identified in a socioeconomic subgroup for accountability purposes in exchange for evading federal law. And because states gained the flexibility to use approaches other than subgroup accountability to hold districts and schools responsible for improving student achievement, states could, in theory, actually expand accountability, if they wanted.

statelogoBut as Dropout Nation and reformers such as Andy Rotherham and Charles Barone of Democrats for Education Reform had pointed out before the administration formally launched the waiver effort — and as the administration’s own data proved — the first argument had no merit at all. As for the second? It makes no sense. How can the waiver gambit narrow accountability and yet expand it at the same time? On any intellectual basis, the administration’s double-talk doesn’t square with reality.

Your editor has predicted that this narrowing of accountability, along with the overall evisceration of No Child’s straightforward and sensible approach, would have dire consequences on advancing systemic reform and ultimately, on poor and minority children often subject to the worse American public education has to offer before the implementation of No Child 11 years ago. Some of these consequences are being borne out in a study released today by the New America Foundation on how states are failing to identify schools and districts failing to serve all children well. The waiver gambit clearly allowed the states to develop accountability systems that allow most failing schools off the hook for poor performance. Even worse, the new accountability systems may actually be causing the kind of arbitrary labeling of schools that Duncan wrongly accused No Child of doing.

On one hand, the New America report, written by its resident expert on the waiver, Anne Hyslop, clearly shows that the waiver gambit is letting persistently failing schools off the hook. Seventy-three percent of 6,058 failure mills in 16 states identified under No Child in 2011-2012 escaped scrutiny under the waiver gambit this year. This means 4,458 schools were allowed to provide shoddy curricula and instruction to 2.4 million children (based on Dropout Nation‘s analysis of federal Common Core data). Worst among the offenders is Nevada, which allowed 88 percent of its schools identified as failing under No Child in 2011-2012 to avoid scrutiny a year later, followed by Florida, with nearly 82 percent of failing schools let off the hook, and South Carolina with four-fifths of schools identified as failing under No Child allowed to escape the disinfecting spotlight of accountability a year later. On average, a state’s new accountability system allowed two-thirds of schools identified as failing under No Child to suddenly avoid accountability.

Even worse, the waivers allowed states to let off the hook those failure mills in “restructuring” or forced to overhaul their operations after six or more years of persistently failing status. On average, three out of every five schools identified as persistently failing were let off the hook thanks to the Obama Administration’s waiver gambit, according to Hyslop in the report. That’s 578 schools allowed to educationally neglect more than 319,000 children (based on Dropout Nation‘s analysis). Nevada was again the worst offender, with 87 percent — or nearly nine out of every ten — of its worst failure mills allowed to avoid the consequences of educational abuse and neglect. South Carolina followed behind Nevada, with 78 percent of its worst failure mills allowed to skip out on accountability, while three out of every four of Tennessee’s long-term failure mills allowed to escape consequences of educational neglect. Meanwhile two-thirds of schools failing to make Adequate Yearly Progress for the last four to five years — 688 schools serving another 377,230 children — were also let off the hook thanks to the waiver gambit. This time, Massachusetts was the worst offender, with 87 percent of these failure mills let off the hook, while Nevada and South Carolina followed behind with, respectively, 85 percent and 74 percent of failure mills let off the hook.

The New America report also shows that few states used the flexibility given under the waivers to hold more districts and schools accountable for poorly serving kids, especially those from poor and minority households. Eleven of the 16 states analyzed by New America significantly identified fewer schools for restructuring and other interventions in 2012-2013 than they did seven years earlier. Only five states — Indiana, Mississippi, Oklahoma, Oregon, and Tennessee — went the opposite direction and targeted more schools for overhaul. This isn’t shocking given the Obama Administration’s goals for the waiver gambit, the administration’s sloppiness in implementation, and evidence from other studies — including a report issued in February by the Education Trust — that show that states have used the waiver gambit to effectively render poor and minority children invisible.

It would have been great if Hyslop provided some demographic and socioeconomic details on the schools that have been allowed to escape scrutiny; one suspects that most of the failure mills let off the hook are in suburban districts which have been the most-exposed by No Child’s accountability measures, and thus, were more than happy with the results of the administration’s gambit, but that’s hard for your editor to know without looking through the source data himself. In any case, Hyslop’s report provides more evidence that the waiver gambit has so far not been of benefit to children subjected to the worst educational malpractice.

But the weakening of accountability isn’t the only problem identified by Hyslop in the report. The fact that the new accountability regimes seem to arbitrarily identifying new schools as being academically failing — something which Duncan claimed was a problem under No Child’s accountability measures — makes the administration’s gambit an even greater farce than your editor ever anticipated.

On average, just 22 percent of persistent failure mills targeted for restructuring under No Child in 2011-2012 were identified as being so-called Focus and Priority schools under the waiver gambit a year later. The remaining 88 percent were schools previously considered mediocre or otherwise under No Child While Massachusetts managed to make sure that persistent failure mills accounted for 81 percent of Focus and Priority schools, most states allowed its worst-performing schools (and the districts that run them) to escape the consequences of educational neglect, while putting under scrutiny new schools which were considered relatively well-performing. By lumping in new collections of schools previously deemed well-performing under No Child while allowing persistent failure mills to escape scrutiny, waiver states are essentially communicating to the public that they aren’t serious in their accountability efforts. After all, how can one school now be subjected to school improvement measures when a longstanding failure mill is left off the hook often without having improved how it educates children in its care?

One can easily argue that states are on the path to ruining the credibility of their own accountability systems. This has already happened in Indiana, where the A-to-F grading system implemented as part of its No Child waiver has fallen apart amid revelations that former Supt. Tony Bennett amended rules governing the grading of 13 schools that served children from kindergarten to 10th grade, a non-traditional format (and, ultimately, changed grades for 165 schools throughout the Hoosier State), and sparring matches between Bennett’s successor, Glenda Ritz (who surreptitiously revealed Bennett’s move) and the state board of education over additional alterations to the accountability system. One can imagine more trouble coming down the line as districts, as well as affiliates of the National Education Association and the American Federation of Teachers, complain about how some failure mills have been left off the hook while other schools have been placed under academic watch.

This year has provided more evidence that the Obama Administration’s waiver gambit is shoddy and disgraceful policymaking. It’s time for the administration — or better yet, Congress — to put this counterproductive initiative to an end. And it is time to go back to No Child’s more-sensible approach to accountability.