Understanding the Virginia ESEA Waiver

By Cathy Buyrn, M.Ed.
September/October 2012

On June 29, 2012 the United States Department of Education (USDE) approved the Virginia waiver application for flexibility from certain requirements of the Elementary and Secondary Education Act (ESEA) as amended by the No Child Left Behind Act of 2001 (NCLB). Approval of the waiver was a highly anticipated event in many educational circles. 

It is important that Virginia educators have a clear understanding of the implications of the ESEA waiver. While many details are yet to be wdetermined, the peer panel review notes from the initial application indicate that the shift in practice will amount to a “sea change” and that technical assistance will be required to support local educational agencies during the transitional process (USDE, 2012, p. 42).  There is an immediate need for Virginia educators to become familiar with the new subgroup accountability standards.  While Virginia’s approved waiver provides some flexibility from certain elements of ESEA, it does not release schools and divisions from the requirement that all subgroups make reasonable progress toward the same academic standards.

State accreditation status will be determined by pass rates for “All students … in the four core academic areas of English, history/social science, mathematics and science” (Virginia Department of Education, 2012 July 24). Under the federal accountability requirements, as part of the approved Virginia ESEA waiver, the performance of all students and individual student subgroups will now be compared to Annual Measurable Objective (AMO) targets.  These targets will be revisited at the Virginia Board of Education’s September 27, 2012 meeting (VDOE, 2012, August 29).  The 100% pass rate deadline of 2014 is no longer the target, but the expectation is that the target will increase incrementally over time and continue to raise expectations and outcomes for all students and for student subgroups. 

Virginia will also combine subgroups into new Proficiency Gap Groups and track the progress of those groups toward the targets.  In order to “safeguard against the masking of individual subgroups,” Virginia will also require schools to track and report individual subgroup progress and address discrepancies that might occur (VDOE, 2012, June 18, p. 54).  The VDOE has provided answers to frequently asked questions (FAQ) regarding the AMO targets for different subgroups in an FAQ document online (2012, August). The actual AMO targets for subgroups detailed in the FAQ document are in the process of being recalculated, but the rationale behind the process for establishing subgroup targets is explained.  Table 1 provides a breakdown of student groups that will be tracked.

Table 1

Student Groups Monitored for Annual Measurable Objective Progress

All Students

Proficiency Gap Groups

Gap Group 1:

Students with disabilities, English language learners, and economically disadvantaged students

Gap Group 2:

Black students, not of Hispanic origin, including students with disabilities, English language learners, and economically disadvantaged students

Gap Group 3:

Hispanic students, of one or more races, including students with disabilities, English language learners, and economically disadvantaged students

Individual Subgroups Monitored for Annual Measurable Objective Progress

Students With Disabilities (SWD)

English Language Learners (ELLs)

Economically Disadvantaged (ED)



Adapted from Smith (2012).


With this waiver, Virginia schools will no longer be labeled as failing to make adequate yearly progress (AYP) when one or more individual subgroups do not meet the target goals for reading and mathematics.  Federal accountability status will be based on all students achieving the AMO targets, but will now include measured progress toward targets for Proficiency Gap Groups and individual subgroups (Smith, 2012).  This calculation will be used to identify Focus schools in need of support and interventions targeted at reducing the failure rate of traditionally low-performing student groups by 50% over six years (VDOE, 2012, June 18, pp. 75-77).    

Virginia will select 15% of Title I schools and high schools with Proficiency Gap Group performance needs as Priority (5%=36) and Focus Schools (10%=72) but, all public schools in Virginia are expected to monitor and address any performance issues for Proficiency Gap Groups or individual subgroups.  Thirty-six Priority Schools will be identified based on the following criteria:

  • Title I schools and other schools receiving federal School Improvement Grant (SIG) funds and identified as a Tier I or Tier II school
  • Title I high schools with a federal graduation indicator of 60 percent or less for two or more of the most recent consecutive years
  • Title I schools that fail to test 95% of students overall and in all subgroups in reading and mathematics for three consecutive years
  • Title I schools in which overall achievement in reading and/or mathematics does not meet annual benchmarks­–as needed to identify a number of schools equivalent to five percent of the state’s Title I schools.

                                                (VDOE, 2012, July 24, pp. 4-5; VDOE, 2012, August 17)

 Virginia will identify 72 Focus Schools by using a formula that calculates Proficiency Gap Points for gap groups and individual subgroups.  Gap points will be obtained by comparing the reading and mathematics pass rates or graduation rates of students in Proficiency Gap Groups and individual subgroups to AMO target pass rates or graduation rates determined for each Proficiency Gap Group or subgroup by the Virginia Department of Education (VDOE) (VDOE, 2012, June 18, pp. 75-77).  Focus schools should concentrate their efforts on “…students at risk of not meeting achievement standards or dropping out of school” (VDOE, 2012, July 24, p. 5).  Intervention plans for Focus Schools should meet with state and federal guidelines for schools receiving federal SIG funds.

“Priority and focus schools are subject to state-approved and monitored school-improvement interventions” (VDOE, 2012, July 24, p.4). Interventions focused on closing proficiency gaps will be supported by “state-approved turnaround partners” in priority schools and “state-approved coaches” in focus schools. While 36 Priority Schools and 72 Focus Schools will be directly supported, all public schools are monitored and expected to seek out resources that address the needs of historically low-performing groups of students (VDOE, 2012, July 24, pp. 4-5; VDOE, 2012, August 17).

The waiver request application submitted by Virginia included a variety of programs and supports available to help all public schools address proficiency gap areas of need. Recommended resources for improving outcomes for students at risk can be found in Table 2.  “Schools that do not receive Title I funds under the ESEA–must develop and implement improvement plans…” and “…use a web-based, school improvement tool approved by VDOE for assessing, planning, implementing, and monitoring progress” (VDOE, 2012, July 24, p.4; VDOE, 2012, August 17).

The ESEA waiver to certain provisions of the NCLB Act of 2001 may shift calculations, timelines, and targets, but it continues to shine a light on the performance of students who were overlooked by the system for many years.  Educators in Virginia will need to raise expectations and focus on implementing evidence-based practices to meet the needs of all students.

Table 2

Recommended Resources for All At-Risk Students


Provides remedial instruction and assessment opportunities for students at risk of not meeting the Commonwealth’s diploma requirements. Project Graduation includes remedial academies during the school year and summer.


Provides assistance in preparing students for success in algebra. School divisions are eligible for incentive payments to provide mathematics intervention services to students in grades 6-9 who are at-risk of failing the Algebra I end-of-course test as demonstrated by their individual performance on diagnostic tests that have been approved by the Virginia Department of Education.


Distributes state funds to schools and community-based organizations to provide quality preschool programs for at-risk four-year-olds not served by Head Start.


Provides early reading intervention services to students in kindergarten through the third grade who demonstrate reading deficiencies reflected in each student's performance on the Phonological and Literacy Screening (PALS) assessment.


Relies on readily available data – housed at the school – to predict which students are at risk for dropping out of high school; to target resources at the school- and division-level to support students not on track to graduate while they are still in school and before they drop out; and to examine patterns and identify school climate issues that may contribute to disproportionate dropout rates.


UDL provides a blueprint for creating instructional goals, methods, materials, and assessments that work for everyone.  This flexible approach can be customized and adjusted for individual needs, rather than a single “one size fits all” solution.

Recommended Resources for Students With Disabilities


Based in seven institutions of higher education that comprise a statewide system emphasizing collaboration in the planning and provision of services to improve educational opportunities and contribute to the success of children and youth with disabilities (birth - 22 years). The T/TACs provide quality training and technical assistance in response to local, regional, and state needs. T/TAC services increase the capacity of schools, school personnel, service providers, and families to meet the needs of children and youth.


A collaborative venture of the Department of Education and Virginia Commonwealth University’s Schools of Education and Medicine, the center serves as a focal point for research, professional development, and technical assistance in implementing research-based effective practices and comprehensive services for students with autism.

Recommended Resources for English Language Learners


A number of resources and services are also available to schools to assist teachers in helping LEP students demonstrate their ability to understand, read, and write English in order to function and be successful in school and in American society.

Adapted from VDOE (2012, June 18).


Smith. K. (2012, June 27).  ESEA flexibility:  Proposed revisions to Virginia’s accountability system [PowerPoint slides]. Presented at Virginia Association of Secondary School Principals Summer Conference, Williamsburg, VA.  Retrieved at http://www.vassp.org/summer_conference/.

United States Department of Education. (2012, March 26). ESEA peer panel notes:  State request Virginia. Retrieved from http://www2.ed.gov/policy/eseaflex/panel-notes/va.pdf.

Virginia Department of Education. (2012, June 18). ESEA flexibility request  Virginia department of education. Retrieved from http://www.doe.virginia.gov/federal_programs/esea/va_esea_flexibility_application.pdf.

Virginia Department of Education. (2012, July 24). Accountability and Virginia public schools. Retrieved from http://www.doe.virginia.gov/statistics_reports/school_report_card/accountability_guide.pdf.

Virginia Department of Education.  (2012, August 17).  Elementary and secondary education act of 1965 (ESEA) flexibility waivers – certain requirements for schools not meeting annual measurable objectives.  (Superintendent’s Memo #207-12)Retrieved from http://www.doe.virginia.gov/administrators/superintendents_memos/2012/207-12.shtml.

Virginia Department of Education.  (2012, August).  Annual measureable objective for raising achievement in Virginia’s lowest-performing schools. Retrieved from http://www.doe.virginia.gov/federal_programs/esea/flexibility/faq_amo.pdf.

Virginia Department of Education.  (2012, August 29).  Board of education to revisit ESEA objectives.  (News Release).  Retrieved from http://www.doe.virginia.gov/news/news_releases/2012/aug29.shtml.