UPDATE: The U.S. Dept. of Education declined California’s request for an ESEA waiver on January 4, 2013. The letter to the president of the California Board of Education is available here.


Most Californians are unaware California recently asked U.S. Department of Education for a waiver of provisions of “No Child Left Behind” (NCLB) claiming:

  • NCLB performance targets are “unrealistic”;
  • Funding and control should be returned to California’s schools; and
  • California’s “robust” accountability system ensures continuing progress for ALL California’s students.

Unfortunately, California’s request failed to mention:

  • NCLB targets – hardly unrealistic – align with IDEA’s goals of high expectations and appropriate educational services to ensure students with disabilities (SWD) become productive members of society;
  • California has no evidence that returning funding and control to local education agencies (“LEA”) will improve outcomes;
  • California’s current education crisis arose under these same LEAs;
  • Despite significant federal stimulus funding to LEAs significant improvement in outcomes for SWD or general education students has not resulted; and
  • There is no evidence California’s accountability system will improve or affect substantive educational outcomes.

California also didn’t mention that many SWD are not making appropriate progress under California’s educational programming; SWD are not appropriately assessed or held to standards ALL California students must meet for graduation (passage of California’s high school exit exam (CAHSEE)); while California’s service delivery system is in disarray.  Yet, California wants even less accountability under NCLB!

An entire generation of children born at CAHSEE’s passage in 1999 has passed through California’s K-12 system, yet California still cannot properly measure all students’ access or progress in state standards. A failure of accountability under NCLB, this also denies student rights under IDEA. Even by the relatively low standard in Rowley, a special education case which measures FAPE by students successfully passing from grade to grade, this seems a prima facie denial of FAPE for California SWD unable to pass the CAHSEE.

In 2000, Assistant Secretary Judith Heumann said: “Because of the benefits that accrue as the result of assessment, exclusion from assessments on the basis of disability generally would violate Section 504 and ADA.”  California appears to annually violate Section 504, ADA, NCLB and IDEA, yet continues to receive federal funding.  If California performs this poorly with accountability obligations, what will happen if accountability obligations are waived? 

Despite US ED guidance requiring states to engage with and solicit input from appropriate stakeholders, California failed to do so.  Instead its request simply “disappeared” SWD.  Given California’s history with SWD this isn’t surprising.  Parents and advocates must hold state and federal education agencies accountable for the educational progress of ALL our children and ensure SWD are “disappeared” no more.

Deborah Blair Porter
October 5, 2012

Click here to read Deborah Porter’s letter to the U.S. Department of Education regarding California’s ESEA flexibility request.