The Florida Department of Education wants to petition the U.S. Department of Education for a waiver from two major provisions of the Every Student Succeeds Act (ESSA).  Florida hopes to get waivers for provisions “that the state consider ELL students’ performance on language acquisition exams in its accountability system, and that it provide native language assessments to determine whether to move students into mainstream classrooms” (Burnette).  If Florida receives these waivers, they may violate the Consent Decree that emerged from a lawsuit brought against the Florida State Board of Education by the League of United Latin American Citizens (LULAC) et al. in 1990.  According to the Florida Department of Education’s website, “The Consent Decree addresses the civil rights of ELL students, foremost among those their right to equal access to all education programs.  In addressing these rights, the Consent Decree provides a structure that ensures the delivery of the comprehensible instruction to which ELL students are entitled.”  If Florida receives its requested waiver, assessments in ELL students’ native language may not occur; this may adversely impact students’ performance on their assessments.  However, with the waiver, Florida would not include the results of ELL students’ assessments in their accountability system.  Furthermore, if this waiver allows Florida to not “provide native language assessments to determine whether to move students into mainstream classrooms” (Burnette), and uses these assessments for placement, Florida would seem to lessen ELL students’ entitlement to “comprehensible instruction” by not placing students in higher level classes where they may make more academic gains.

Florida argues that the waiver would facilitate administrators’ understanding of  accountability and reporting data. Moreover, Florida asserts that with the waiver it would still report the appropriate data because “This reporting as well as the ongoing incentives in the school grading system will serve as a system for monitoring and evaluation how this policy affects students” (Florida Department of Education, “Draft for Public Comment, ESSA Waiver Request Document, p.5.)  As such, Florida claims that its current school grading system allows for “gap analysis [that] will continue to evaluate the existing achievement gaps and progress towards narrowing those achievement gaps” and will continue to make public the information related to the achievement and achievement gaps of subgroups of students (“ESSA Waiver Request Document”, p.5).  On a previous waiver request, Florida used this reasoning about its posting achievement data.

In 2014, Florida requested a waiver for flexibility in testing accountability for ELL students “because the state will still publicly report on performance of recently-arrived English-learners and include their scores in the growth component of the state’s grading system” (Mitchell).  The U.S. Department of Education granted Florida’s request for a waiver “to give its ELL students two years in a U.S. school before factoring their scores on annual English/language arts and mathematics tests into school grades” (Mitchell) on December 22, 2014.  Florida’s current waiver request appears to be part of a policy pattern to extend its flexibility in assessing and implementing entitlements for its significant ELL student population.