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TO WAIVE OR NOT TO WAIVE: New CRS Report Finds Secretary of Education’s Waiver Authority Is “Very Broad” Under NCLB, but Does Not Include Power to “Unilaterally Impose” New Requirements on Grantees

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“If the Secretary did, as a condition of granting a waiver, require a grantee to take another action not currently required under the ESEA, the likelihood of a successful legal challenge might increase, particularly if [the U.S. Department of Education] failed to sufficiently justify its rationale for imposing such conditions."

A new report from the Congressional Research Service (CRS) finds that the U.S. Secretary of Education may waive “any statutory or regulatory requirements” of the Elementary and Secondary Education Act (ESEA), currently known as No Child Left Behind (NCLB). However, it also finds that the secretary cannot “unilaterally impose” new requirements on grantees—a finding that could throw a wrench into U.S. Secretary of Education Arne Duncan’s plan to waive certain requirements in NCLB in exchange for states taking on certain reforms.

“If the Secretary did, as a condition of granting a waiver, require a grantee to take another action not currently required under the ESEA, the likelihood of a successful legal challenge might increase, particularly if [the U.S. Department of Education] failed to sufficiently justify its rationale for imposing such conditions,” the report reads. “Under such circumstances, a reviewing court could deem the conditional waiver to be arbitrary and capricious or in excess of the agency’s statutory authority.”

At the same time, however, the report seems to give Duncan a way to get around that obstacle by suggesting that the U.S. Department of Education “could theoretically” invite applications for waivers and “implicitly or explicitly condition their approval on a grantee’s willingness to submit to new conditions.”

The report notes that the law sets forth a waiver request process and specifies provisions that are not subject to wavier but adds that the secretary’s waiver authority is otherwise “very broad.” It acknowledges that individual waivers may face legal challenges and may even be struck down on occasion, but courts will generally uphold an agency’s exercise of its statutory waiver authority so long as the agency “develops an adequate record regarding its decision to grant a waiver and ensures that the waiver is granted consistent with the statutory purposes and procedures set forth in the section authorizing such waivers. In this instance, the section in question is section 9401 of NCLB, which authorizes the U.S. Department of Education to waive most statutory and regulatory requirements if needed to “increase the quality of instruction for students and improve the academic achievement of students.”

CRS lists several requirements that the secretary is not allowed to waive, including those affecting allocation of funds, parental participation and involvement, and civil rights requirements, among others.

The report also considers the secretary’s waiver authority in several specific instances, including academic standards and assessments; accountability requirements, including proficiency timeline; corrective action and restructuring requirements; and public school choice requirements. In each instance, CRS concludes that the department has the authority to waive these requirements as long as it develops an adequate record regarding its decision to grant a waiver and ensures that the waiver is granted consistent with the statutory purposes and procedures set forth in Section 9401 of the law.

The report also finds that the department can use its waiver authority to require states to focus interventions on the lowest-performing 5 percent of schools, but only if it is in response to a waiver request submitted by a grantee. It finds that the department does not appear to have the authority to “spontaneously” issue a waiver requiring states to focus on the lowest-performing schools.

The complete report is available at http://edworkforce.house.gov/UploadedFiles/June_28_2011_CRS_report.pdf.

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NCLB Waivers

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