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As Ed Money Watch , the U.S. Department of Education has placed three states – Kansas, Oregon, and Washington – on “high risk” status for their ESEA waiver plans related to new teacher evaluation systems. ��If they don’t get up to speed by the end of 2013-14, these states could face a series of increasing sanctions, from losing state administrative or programmatic Title I funding, to losing ESEA flexibility entirely. With the latter, the state would again be subject to all of the requirements and provisions of No Child Left Behind.

Now, the Department has released for all states seeking to renew their waivers this winter. Waivers granted from the first two application windows (November 2011 and February 2012) expire at the end of the current school year. Without the two-year extension, the consequences for these 35 states are the same as for those on high risk:��NCLB, in full effect, in 2014-15.��I won’t go into the details of the renewal process (yet), but for more analysis take a look at these thorough recaps from Education Week’s�� and Politico’s .

Instead, I’d like to focus on the challenge the U.S. Department of Education faces in ensuring state compliance with flexibility. The Department has a few tools at its disposal to cajole states into cooperation, but these kinds of punishments are rare, if not unprecedented. have lost Title I funding, administrative or programmatic, under NCLB. And several states have been placed on high risk for their plans, but the Department has yet to follow through on the warning and revoke a portion of states’ funding.

Further, is returning to NCLB even a viable option? After two years of waivers, it would be a nightmare to revert back to NCLB-style accountability. For instance, would a state’s AMOs be applied retroactively to determine which schools were in need of improvement and which sanctions to apply (e.g. corrective action, restructuring)? Or, would every school in the state start with a clean slate and need to miss AYP for two years before sanctions kick in?

So on the one hand, the Department’s recent actions demonstrate that they will, at least symbolically, hold states accountable for the promises they made in their waivers. On the other, as DFER’s Dom Giandomenico notes in , it shows just how anemic the Department’s monitoring and enforcement plans are. There will be two official monitoring cycles completed by year’s end, but they don’t cover every component of states’ flexibility plans. And while the Department is gathering data to analyze how states selected schools for improvement under flexibility (and will ask states to respond in their renewals), the data , at least initially. The renewals will not face a peer review either.

In short, it’s far from clear how the Department will evaluate the quality of state waiver implementation in the renewal process, or if they’ll have all the information they need to make an informed judgment. But would better information, or a more thorough review procedure, even make a difference?

Let’s play a little game.��

Assume that the Department wants states to comply with the flexibility policy and to gain this compliance through partnerships, not punishments. The latter is particularly important to the Department, since punishing waiver states for non-compliance (by revoking flexibility or rescinding Title I funds) could further hinder effective implementation of the reforms the Department would like to see. In other words, any scenario where the Department must force states to re-comply with NCLB is worse than any scenario where waiver implementation is just so-so.

Now, let’s assume that states with flexibility prefer to have complete control over standards, assessment, and accountability within their states. But their preference for waivers is even stronger. They don’t want to revert back to NCLB and comply with its 100% proficiency target for all students and 20% Title I set-aside for school choice and tutoring. For states, any situation where they get to keep their waivers is better than one where they lose flexibility. But the best situation is one where they have as much discretion as possible within the waiver policy.��

Here’s how the game plays out:

Regardless of the monitoring process or the rigor of the renewal guidelines, the only feasible outcome of the game is for states to do what they want, more or less, and for the federal government to work with them and hope states make good choices. In any other scenario, someone could be better off.

What did we learn?

1. U.S. Department of Education:��Don’t be timid when it comes to asking states to justify the policies in their waiver requests. States will tolerate the paperwork, data analysis, and conference calls if it means keeping flexibility. Yes, states may eventually struggle to implement, or even undermine, the Department’s preferred policies, but that doesn’t mean they shouldn’t try to get states to do the right thing.

2. States: Behave responsibly. If states go too far and blatantly ignore the federal guidance, the Department may lose their preference for waivers at all costs – and there could be serious consequences down the line. It may not affect the waiver renewal process, but if states misuse the flexibility and unravel the progress made under NCLB, policymakers will take notice… and the next iteration of waivers (or a reauthorized ESEA) may not be as friendly toward local control.

3. Education researchers and advocates: Pay close attention to the game. States have a lot of discretion within the waiver policy, and there will be significant variation between them in terms of quality and outcomes – especially without strong federal enforcement. Recent reports – like�� from the Campaign for High School Equity – are a good start, but much more analysis is needed to ensure the lessons to be learned from ESEA flexibility are not lost.

Stay tuned to for continuing coverage of ESEA flexibility and the upcoming waiver renewals.

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