Three cheers for California’s governor, state superintendent, and state board chair, for applying for a waiver from the Elementary and Secondary Education Act (aka No Child Left Behind) that doesn’t kowtow to Washington.

While Jerry Brown, Tom Torlakson, and Mike Kirst deserve plenty of criticism for their indifference to education reform—kicking charter supporters off the state board, cozying up to the teacher unions—on this one they deserve nothing but kudos.

In a nine-page request (still in draft form for another month), they ask Arne Duncan to allow California to use its own accountability system, the Academic Performance Index (API), and to scrap AYP. Mimicking language Duncan himself has used, they write:

Unrealistic and ever-increasing performance targets have forced us to label 63 percent of Title I schools and 47 percent of districts receiving Title I funds as needing improvement, and to apply sanctions that do not necessarily lead to improved learning for the students in those schools. This practice has confused the public, demoralized teachers, and tied up funds that could have been more precisely targeted on the schools and districts that are most in need of improvement.

But they refuse to meet one of Duncan’s conditions for such flexibility: Namely, the creation of a statewide teacher evaluation system. From Politics K-12:

Why? The cash-strapped state just doesn’t have the funds to help school districts cover the cost of a new evaluation plan, as state law requires, Kirst said.

“We’re saying we just can’t pay for it,” Kirst said. Other states that have applied for the flexibility “must be rich,” he joked.

And, in Kirst’s view, the waiver request is consistent with what’s actually in the NCLB law. “We do not see anything in the law about state mandates for teacher evaluation,” he said.

Amen, amen, amen! Finally, a state willing to call out the Administration on the illegality of its waiver policy. (And a true-blue state at that!)

Let me be clear: I’m not saying California’s request should automatically be approved. There are legitimate questions about API, and whether it’s demanding enough (and sensitive enough to subgroup performance). As with the other states, Duncan has a right to negotiate over the particulars.

But he doesn’t have a right to demand the creation of a teacher evaluation system not mentioned in the law in return. Part of me hopes he’ll turn down the request anyway so that California can sue—and win.

-Mike Petrilli

This blog entry originally appeared on the Fordham Institute’s Flypaper blog.