If we needed more proof — and we really didn’t — that Congress abrogated its responsibility by allowing No Child Left Behind to continue as the law of the land, we only have to look at Virginia.

Virginia is the latest state to experience the huge gap between what test scores actually say and what the law says they say. In newly released scores of the 2011 state Standards of Learning exam, 62 percent of of its public schools failed to meet benchmarks in math and reading, compared to 39 percent the year before.

Did the state’s schools suddenly get worse? Of course not. Overall passing rates, as my colleague Michael Alison Chandler noted in this story,were close to or exceeded 90 percent statewide.

The gap is all wrapped up in how states maneuvered over the years to meet NCLB’s “adequate yearly progress” provision, which requires that nearly all students are proficient on standardized tests in reading and math by 2014. States were allowed to decide individually how to reach the goal, and almost half set easy targets early in the last decade. Now, things are getting tougher.

In state after state, as 2011 standardized test scores come in, the number of schools that are labeled failing — but actually aren’t -- climbs. States declared failing have to choose among several options that many consider punitive to change the dynamic at the "failing" school.

Education Secretary Arne Duncan has been urging Congress to fix the law for a long time. It didn’t (though the Obama administration never made it a legislative priority in the same way that it did for health care reform.)

That No Child Left Behind needs to be overhauled is not a matter of debate among most Republicans and Democrats. That need never translated into action by Congress. Now Duncan is taking unilateral action by offering waivers to states that are moving ahead with the kind of school reform that the administration likes. As for the states that aren’t, well, they are out of luck and will have to keep dealing with NCLB consequences even though Duncan admits the law is broken.

How’s that for a mess?

The good news for Virginia: Though it is one of six states that has not signed on to the administration-supported Common Core State Standards, it appears as if that will not prevent it from getting a waiver.

Earlier this year, Virginia’s governor, Robert F. McDonnell, pulled the state out of the Obama administration’s second round of the Race to the Top competition for federal school reform funds. The state had competed in the first round of the sweepstakes — in which states got cash for promising to make specific school reforms — but ended up 31st out of 41 competitors.

A key reason cited by McDonnell was the state’s decision not to sign on to the Common Core State Standards — a set of educational standards for English language arts and mathematics that 44 states and the District of Columbia have agreed to adopt — because Virginia does not want to give up the Standards of Learning, its own system of academic benchmarks.

“We can't go back,” he said in May. “We've been working on this for 15 years. Our standards are much superior. They're well accepted. They're validated.”

Spokesmen in the U.S. Department of Education and the Virginia Department of Education now say that states that want a waiver have to have college-and career-ready standards, not the Common Core per se, which Virginia can show. The federal department spokesman also said that these states also would have to show that their remediation rate at public colleges and universities is not high.

Virginia Education Secretary Patricia Wright had a conversation recently with Duncan about the issue of a waiver, and, said Virginia department spokesman Charles Pyle, “she stated to the secretary that word-for-word adoption of the Common Core would be a deal killer for Virginia. According to Dr. Wright, Secretary Duncan assured her that would not be a requirement.”

Duncan is in one of those damned-if-you do and damn-if-you-don’t situations: If he didn’t offer waivers, he’d be lambasted; now that he is, he is being lambasted.

But some of the criticism is of his own making: Using the waivers as a way to strong-arm states to do what you want — when what you want has never been shown by research to be effective or — is hardly the way to set a good policy precedent, or help kids in schools, which is, after all, what this is supposed to be all about.

Correction: This post originally said, stupidly “annual yearly progress.”

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