The U.S. Department of Education (ED) has now approved waivers of the Elementary and Secondary Education Act (ESEA) for 34 states and the District of Columbia. Essentially, this means that more than half the nation’s state school systems are operating under individualized versions of the law, many of which bear only a passing resemblance to tNo Child Left Behind . And all these waivers – which, in essence, have offered a mini-reauthorization for all those states which receive them – have occurred with little intervention or oversight from Congress
It’s true that a number of lawmakers have expressed grave concerns about the way in which ED has carried out its waiver scheme. When the plan to approve conditional waivers was first announced, Representative John Kline (R-Minn.), the Chairman of the House Committee on Education and the Workforce, and Duncan Hunter (R-Calif.), then-Chairman of the Subcommittee on Early Childhood, Elementary, and Secondary Education, sent a harsh letter to Secretary of Education Arne Duncan. In their letter, Kline and Hunter asked whether the bare-bones waiver provisions in Section 9401 of tNo Child Left Behind gave the Secretary authority to require states to implement reforms in exchange for waivers. The two Chairmen also asked the Congressional Research Service (CRS) to examine the waiver authority granted in the law. The traditionally cautious CRS released a memorandum which said that the Secretary was on shaky ground legally and a legal challenge to that waiver authority might be successful. -
Despite these cautions, ED continued granting waivers. More concerns surfaced last year, however, as Representative George Miller (D-Calif.) – a staunch supporter of the waivers – sent a letter to Duncan urging the Secretary to maintain accountability for student graduation rates. This public criticism from a strong ally indicated that even among Duncan’s supporters inner circle, there may be doubts.
And finally, last fall, a number of states made changes to their accountability systems under the waivers. While Colorado said it needed to adjust its student proficiency targets because it was using a new test, the state of Virginia was forced to change its accountability system because of public protest – the new system set lower achievement targets for minority students than for the “all students group.” Following these changes, advocates and others questioned the rigor of the review process and whether ED was rushing approvals out the door to send a message.
With all these concerns surrounding waivers, it seems that the problems have reached a critical mass, and Congress believes that it can no longer ignore the radical transformation that ED has undertaken while essentially bypassing the legislative process. Congress will likely not take up reauthorization any time soon; fiscal issues have trumped substantive policy debates in recent months, and with three key budget deadlines coming up in the first few months of the year, that trend is likely to continue. But both the House and Senate Committees have indicated that they are interested in conducting oversight hearings on these waivers. It is still too early to anticipate what kind of action might result from these hearings, but the message to Duncan is clear: ED’s unfettered exercise of waiver power may soon be coming to an end.
Julia Martin is the legislative director the Brustein & Manasevit law firm.