ESEA Waivers 101: Explaining the Secretary of Education’s Waiver Authority
In our K12 education system, most policy decisions–as well as roughly 90 percent of funding–stem from state and local governments, not Congress or the U.S. Department of Education (ED). This is especially true after a bipartisan effort to rewrite the Elementary and Secondary Education Act (ESEA) in 2015 with an explicit goal of giving more flexibility to states and school districts, while maintaining key federal guardrails on assessments, accountability, and school improvement. The 2024 Supreme Court decision in Loper Bright Enterprises v. Raimondo further limited some of the power of federal agencies to regulate. That said, even though ED’s policymaking mechanisms have been constrained in recent years, one of the more expansive and powerful of these mechanisms remains the Secretary’s authority to grant ESEA waivers.
This power, laid out in Title VIII of ESEA, allows the Secretary to waive certain statutory and regulatory requirements. And every administration, Republican or Democrat, over the last 25 years has used ESEA waivers to give states flexibility. But waivers cannot–and should not–be used indiscriminately. The law lays out limitations on how the Secretary can use the waiver authority and includes specific requirements waiver requests and approvals have to meet.
All4Ed and Education First developed this explainer and accompanying “quick guide” to help the field understand (1) what states need a waiver to do and what they can do without a waiver, (2) what requirements can and cannot be waived, and (3) what the waiver request process looks like.
Meet the Authors
Anne Hyslop is Director of Policy Development at All4Ed, where she leads policy research, analysis and evaluation efforts. From 2015–2016, Anne served as Senior Policy Advisor at the U.S. Department of Education, leading the agency’s efforts to write regulations, guidance, and policy for accountability, school improvement, and innovative assessments during and immediately following the passage of the Every Student Succeeds Act.
Dave Powell is a Senior Consultant at Education First where he collaborates with states, advocates and funders on assessment and accountability practices and policies. Previously, he spent 10 years leading government affairs for Stand for Children in Washington State; where he led the campaign establishing the state’s charter school law and passed the nation’s first law requiring qualified students to be automatically enrolled in advanced classes.
