WAIVER MADNESS: Andrew Bagley (left) and John Hoy address the state Board of Education on Thursday.
The state Board of Education acted on two attention-grabbing issues on Thursday: The release of two school districts from state takeover
(pending local board elections) and the consideration of two Little Rock charter schools seeking expansions.
Both topics were certainly important, but the state board also acted on another, lower-profile issue that could turn out to be even more consequential for education.
That would be the decision to grant a long list of waivers
to statute and regulation as requested by the Helena - West Helena School District,
thus potentially undermining standards that cover everything under the sun regarding education in Arkansas — from teacher licensure to school board operations to curriculum. The decision was made with the best of intentions, as far as I could tell. But the result was a haphazard amalgam of carveouts that could set a dangerous precedent and weaken the rule of law in education policy across the state.
In 2015, Rep. Reginald Murdock
(D-Marianna) successfully sponsored legislation intended to level the playing field between traditional public school districts and their competitors in the charter school
world by allowing traditional schools easier access to waivers. A key component of charter schools is that — in the name of innovation — they're allowed to bend laws and regulations in certain specified ways. Those parameters are typically laid out in the school's charter
itself, which is its contract with the state to provide public education. For example, a charter school might be granted a waiver to teacher licensure requirements, allowing it to hire non-certified staff in the classroom. The idea behind such waivers is that charters are supposed to be laboratories in which the often Byzantine rules of the education game are loosened or tweaked. Advocates of traditional public schools sometimes complain that as the role of charter schools has evolved from test kitchens to aggressively proliferating chain restaurants, their waivers can give them an edge over their traditional counterparts.
Under Murdock's legislation, if a traditional district loses any students to a charter competitor, that district can request the very same waivers from the state Board of Education as the charter school. If a charter school operates under looser teacher licensure standards, its traditional district counterpart can request to do the same. Lee County Schools
, in Murdock's district, as well as Helena - West Helena Schools, both face stiff competition from a charter operator, KIPP Delta College Preparatory School.
Murdock appeared before the state board Thursday and urged it to grant HWH's waiver request.
This makes all makes sense in principle. The problem is that Helena - West Helena yesterday requested that the state board give it every waiver KIPP possesses, all at once, covering 19 separate areas
of statute or Education Department rule. That covers the following: School year dates, superintendent licensure, school board requirements, grading scales, teacher licensure, alternative learning environments, a requirement to form a local task force on closing the achievement gap, teacher lunch periods, teacher planning periods, personnel policies and salaries, superintendent mentoring, student services, gifted and talented programs, library media services, hiring and firing of teachers, curriculum requirements, teacher and administrator contracts, class size and teaching load, and advanced placement classes.
Are all of the statutes and regulations covering those areas ideal? I doubt it. Are some unnecessarily burdensome? Probably. But they all exist for one reason or another. If they shouldn't be in law, I would argue the law itself should be changed — not circumvented.
Teacher licensure requirements weren't crafted for the sheer joy of bureaucracy; they're in place to guarantee a certain minimum standard is met regarding the qualifications of educators. It may or may not be a good idea to allow charter schools to bend those rules in the first place, but by allowing even more schools (this time, traditional ones) to seek waivers, education policy in general is undermined. (I should mention that the charter advocates
I've asked about this issue are generally supportive of allowing traditional districts access to waivers.)
HWH is one of the two districts currently ran by the state Education Department now emerging from fiscal distress
and due to return to local control this fall. It's currently run by appointed superintendent John Hoy,
with input from an advisory board chaired by Helena - West Helena resident Andrew Bagley. "
We feel that it is in the district’s best interest to request all waivers allowable by law," Hoy told the board. HWH wouldn't necessarily even use all of the KIPP-like waivers it's requesting, he said — but it wants the ability to do so if needed.
Board member Jay Barth
(who also writes a column for the Arkansas Times
) attempted to sound the alarm on the recklessness of this approach. "I think we’ve shown a willingness to grant waivers when we see ‘This is the end point, and this is what we need to get there,'" he said. "This is a more wholesale request ... and that troubles me." Barth pointed out, for example, that while Helena - West Helena is eager to return to local control, it requested a waiver to allow it to hold school board meetings quarterly, rather than monthly.
"I don’t think we would use that particular waiver," Hoy said. "KIPP Delta has asked for all of these over time as they’ve found out they’ve worked. I’m asking for all of them …. so we can put together what we need to be successful."
"We want to give you flexibility … we want to see innovation," said board member Mireya Reith
, but "it concerns me that there are waivers [you're requesting] that you aren’t going to use."
Board member Diane Zook
pointed out that waivers are given to charters in part because charters are held to a specific contract. Kendra Clay, an attorney for the Education Department, told Zook that "there is not a mechanism to revoke those under the law as there is with a charter school." (However, the waiver request is for a five-year period, not than indefinitely.) Zook nonetheless made a motion to grant all 19 of the waivers requested in one swoop.
Barth asked the board to instead take it topic by topic. "There’s some I’m very comfortable with and some I’m very uncomfortable with," he said. "I think we just think we need to be very careful about what we’re doing here, especially with virtual charter schools," which arguably exist in every district in the state, since any student can enroll in a virtual school regardless of geography. (Does that mean any
of Arkansas's school districts could potentially argue that it faces competition from a charter and therefore needs to be released from the shackles of the law? The answer isn't clear.)
The state board took Barth's approach, but in the end it granted most of the waivers requested, with little discussion.
Barth voted no on a number of items, often with support from Reith and occasionally joined by Vicki Saviers.
The three voted against waiving a battery of laws and requirements on personnel including teacher compensation and sick leave. "I think these are very fundamental parts of education employment in Arkansas," Barth protested. The waiver passed.
Barth objected to waiving a law requiring that teachers be allowed a duty-free lunch period. "I think teachers need time to get their heads together," he said. Saviers joined him in voting no; the waiver was still approved.
The board did deny the district's request to waive the Teacher Fair Dismissal Act,
which governs firing of teachers.
Reith moved to reject the waiver and was seconded by Susan Chambers;
the vote was unanimous.
Yet another waiver exempted HWH from certain middle school curriculum requirements. "I have no intention at this particular point to use it, but it’s my intention to ask for all the waivers that KIPP Delta has, in case we need it," Hoy reiterated.
Barth replied, "I think this board has been incredibly embracing of innovation when there is a plan of action. But getting rid of the rules of the game and hoping that innovation will emerge out of that? I think that’s a real concern."
"I understand your concern," Hoy said. "But I think that concern has already left the gate when we said yes to charter schools in this state." The waiver was approved.