Update on State’s ESEA Waiver

Word version

Oct. 7, 2015


SUBJECT:       Update on State’s ESEA Waiver

On Sept. 29, 2015, I was notified by the U.S. Department of Education that the department had approved the state’s request for renewal of flexibility from specific provisions of the Elementary and Secondary Education Act (ESEA) – also known as the No Child Left Behind (NCLB) Act of 2001 – through the end of the 2015-2016 school year.

While that news of the waiver approval was welcomed, federal officials also stated that Texas must meet specific conditions to continue ESEA flexibility beyond the 2015-2016 school year. In short, Texas received an ESEA waiver through the 2015-2016 school year, but the state has been placed on “high-risk status.” ESEA flexibility beyond this school year will be dependent on the state meeting specific conditions that would require statewide use of specific teacher and principal evaluation and support systems, as well as utilizing them to make personnel decisions at the local level.

Federal officials have given the state until Jan. 15, 2016 to meet certain conditions or the waiver will be pulled and sanctions will apply beginning in the 2016-2017 school year. Among the conditions federal officials are requiring Texas to meet:

  • Texas must demonstrate how the state will ensure all school districts and charters implement teacher and principal evaluation and support systems that meet ESEA requirements, including the use of growth in student learning as a significant factor, based solely on student test scores.
  • Federal education officials also seek a statewide approach to measuring growth in student learning based on state assessments for those teachers of tested grades and subjects.
  • Finally, the U.S. Department of Education expects Texas districts and charters to utilize those teacher and principal evaluations for personnel decisions beginning in 2016-2017.

Please know that throughout the waiver application process, I have made it clear to federal officials that I do not have, nor will I ever seek, the authority to compel local school districts to use any teacher and principal evaluation system statewide. Our state believes strongly in local control of our schools. As a result, Texas Education Agency staff will continue discussing this specific point with the U.S. Department of Education, but they should not expect any shift in our position.

It should be noted that Texas and South Dakota are the only states in the current round of renewals granted a federal waiver with a “high-risk” designation. Interestingly, both states have been designated as “high-risk” for similar reasons related to teacher and principal evaluations.

Federal officials have provided an avenue for Texas to seek reconsideration of our “high-risk” status. We will do so by the Oct. 9 deadline. However, we have not been provided any timeline on how long the reconsideration process will take or how soon a decision would be made.

The State of Texas secured its conditional waiver from the U.S. Department of Education in 2013, giving the Texas Education Agency and more than 1,200 school districts and charters relief from certain ESEA provisions. The decision to seek a waiver was among my first acts as Commissioner, a decision made after seeking input from superintendents across the state.

I know we are all following the reports out of Washington D.C. regarding potential ESEA reauthorization. If accomplished, reauthorization would likely have a tremendous impact on the expectations for the state, as well as every local school district and charter. While Texas Education Agency staff and I continue to provide input to our state’s congressional delegation, I will not make any predictions on the eventual outcome.

Absent reauthorization, current ESEA requirements would remain in place. As a result, you should be aware that loss of our state’s ESEA waiver would carry some potential consequences for every school district and charter in Texas.


  • Texas schools labeled as “Failing” under national standards.
    Under NCLB (after 2014), the law requires that all students are proficient (or simply put, 100 percent of students meet the standard). That means every student must be able to perform at grade level in English language arts and mathematics.



  • Prescriptive consequences for failing schools. 
    Under NCLB, there is a series of increasingly severe consequences (described below) that impact failing schools. These consequences prescribed by the federal government will leave states with less discretion to work with schools to determine the appropriate interventions based on the specific needs of each campus.
    • Federal Annual Yearly Progress (AYP) ratings would be retroactively assigned to all campuses using their previous status, which would possibly place all Texas campuses, at a minimum, in Stage 2 of AYP. Federal Stage 2 requirements would include:
      • All schools provide parental notification and school choice options, as well as develop and implement an intervention plan.
      • The return of Supplemental Education Services (SES) requirements, meaning all districts would be required to set aside 20 percent of Title I funds for this purpose.
      • Supplemental support for low-performing campuses would be reduced. Current school improvement fund dollars currently targeted at priority and focus campuses would have to be distributed to all low-performing campuses.


The potential consequences outlined above apply to Stage 2 of AYP. More prescriptive federal interventions would be required under Stage 3, 4 or 5. Based on the best information available, I would expect that a school that had missed AYP prior to the state receiving the waiver would resume graduated sanctions based on that prior stage. For example, a school that was Stage 2 in 2011-12 that then missed AYP in 2016-17 would then be considered Stage 3. Other than the consequences above, I have no reason to believe that the state or its schools would be at risk for losing any federal Title I money.

Separate from the waiver process, the Texas Education Agency will continue its work with Texas schools, districts and regional Education Service Centers to develop new teacher and principal evaluation and support systems. The new Texas Teacher Evaluation and Support System (T-TESS) and the Texas Principal Evaluation Support System (T-PESS) are on schedule to be offered as resources designed to improve instruction and campus leadership. During the 2014-2015 school year, we piloted these systems in 64 school districts and 430 campuses across the state. As part of the refinement phase, 256 districts and approximately 2,000 campuses statewide are implementing the systems this school year.

Statewide rollout of our new state-approved appraisal system will occur in 2016-2017, but will not be mandatory. I believe a majority of our school districts, representing roughly 85 percent of the state’s student population, will utilize these new appraisal systems. However, that choice will be made at the local level, not by the federal government.

I will continue to provide you with updates on this issue throughout the process. It is important that we are all aware of the potential implications. As always, I welcome your input as we move forward in working to secure the state’s ESEA waiver beyond this school year.

To view all materials related to the state’s waiver request (including the Sept. 29th letter from the U.S. Department of Education), I encourage you to visit the Texas Education Agency website at http://tea.texas.gov/Texas_Schools/Waivers/NCLB-ESEA_Waiver_Information/.


Michael Williams

Commissioner of Education