After months of on-and-off discussions, the State Board of Education on Wednesday grudgingly voted 5-2 to approve submission of Colorado’s request for flexibility in meeting federal education laws.

That application, originally due March 31, now goes to the U.S. Department of Education for final approval.

Colorado Department of Education staff members have been negotiating the document with federal officials for months, periodically briefing the board on progress. CDE staff and federal bureaucrats reached agreement on the document some time ago, but formal board sign-off was needed.

Although it was clear Wednesday morning that the board would approve the application, members took a few minutes to grouse about what they believe to be federal interference in state control of education.

“The federal intrusion into education is not productive,” said board chairman Steve Durham, a Republican from Colorado Springs. “No Child Left Behind has been a catastrophic failure.”

But Durham said he was supporting the application because the alternative would be a burden for school districts — putting Colorado back under the original accountability requirements of No Child Left Behind, the nation’s main education law.

“A good part of this board’s job is not to make life more difficult for local school districts,” Durham said.

A key element of the state’s application seeks to address high testing opt-out rates that drop test participation rates below federal requirements. Several districts fell below that 95 percent threshold last spring, according to a Chalkbeat Colorado analysis.

The application — formally called an ESEA flexibility request and sometimes referred to as a waiver — exempts Colorado from certain provisions of the federal Elementary and Secondary Education Act.

The federal department created the waivers in 2011 to give states flexibility after congressional efforts to update ESEA stalled. Both the House and Senate passed update bills earlier this year, but prospects for passing a new law are uncertain.

Colorado first received approval of its flexibility plan in 2012 and was due to apply for renewal last March. The state filed an application but then had to modify it because of changes to the state testing system passed by the legislature in early May.

Proposed response to testing refusals

Federal law requires at least 95 percent participation on language arts and math tests in grades 3-8 and once in high school. States are required to choose penalties for districts that miss that goal on two or more tests. Colorado’s penalty, which never has been used, had been a one-step reduction in a district’s state quality rating. However, the state board passed a resolution earlier this year saying low-participation districts shouldn’t be punished.

Colorado’s flexibility request instead proposes these steps in response to low test participation:

  • The state will calculate and report test participation rates for all districts, schools and ethnic and other student groups. The state has committed to this, and the information is expected to be released next month.
  • Districts with substandard test participation rates are required to include steps for increasing participation in their annual improvement plans, which are filed with the state.
  • Participation rates will be a factor considered in the effectiveness reviews conducted with the state’s lowest performing schools.
  • The state will provide low-participation districts and schools with information about state tests, “including reasons for administering the assessments and how the results are used.” That information is supposed to be disseminated to parents and community members.

Other key elements of the application

The flexibility request also substitutes a new college and career readiness test in the 10th grade to meet federal requirements. The PARCC language and math tests will no longer be given in 10th grade but will continue to be given in 9th grade.

A one-year timeout in ratings of schools and districts is also part of the request.

A key element of Colorado’s original flexibility request allowed the state to use its own rating system and not also use the federal adequate yearly progress standard. That would continue under the new waiver.