In early August 2011, Secretary of Education Arne Duncan announced, “With the new school year fast approaching and still no bill to reform NCLB, it’s time to create a process for states to gain flexibility from key provisions of the law, provided that they are willing to embrace education reform.”  The Department of Education’s (ED) “NCLB flexibility,” would allow states and school districts to get out from under some of the hallmark, but more unforgiving, provisions of NCLB – accountability standards. As reported in the New York Times, Duncan’s announcement means he is unilaterally overriding the centerpiece accountability provision of the NCLB that requires students to be 100% proficient in math and reading by 2014.   The Department’s stated that it would grant waivers to states that have adopted their own testing and accountability programs and are making other strides toward better schools.  Read the Legal Clips summary here.

Many states are preparing to request ED for NCLB waivers. On August 24, 2011, Legal Clips summarized a Kennebec Journal report about the Maine Department of Education (MDE)’s plan to request a waiver of NCLB’s academic proficiency requirement, once an alternate framework can be developed.  As the editor’s note points out, Maine is by no means alone.

A Legal Clips commenter asked under what legal authority Secretary Duncan may grant NCLB waivers, a question also asked by a Congressional committee and answered by the Congressional Research Service (CRS).  In a memo dated June 2011, CRS laid out the basis for the Secretary’s authority, examining the Secretary’s use of waivers in certain circumstances; the extent to which he may condition waivers on an applicant’s performance of other actions; and the scope of the Secretary’s waiver authority in certain circumstances.  Overall, CRS concluded, the Secretary’s waiver authority is broad and covers the requirements the members of Congress were concerned about.   The Secretary’s waiver authority may be subject to challenge, however, in certain circumstances.

CRS explained that Section 9401 of the Elementary and Secondary Education Act (the latest version of which is NCLB), permits the Secretary of Education to waive “any statutory or regulatory requirement of this chapter for a State educational agency, local educational agency, Indian tribe, or school through a local educational agency, that– (1) receives funds under a program authorized by this chapter; and (2) requests a waiver under subsection (b) of this section.” Hundreds of waivers have been granted under this section (codified as 20 USCA §7861).

“ED could,” CRS opined, “theoretically invite applications for waivers and implicitly or explicitly condition their approval on a grantee’s willingness to submit to new conditions. Such conditions would not necessarily be considered to be requirements, given that a grantee’s compliance would be purely voluntary, and any grantee who did not want to submit to such conditions would simply forgo seeking a waiver on that basis.” However, “[i]f 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 ED failed to sufficiently justify its rationale for imposing such conditions.”

The memo goes on to say that ED appears to have the authority to waive NCLB requirements addressing standards and assessments, accountability, timelines, and Annual Measurable Objectives, “as long as ED 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.”

It is not unheard-of for ED to grant waivers.  As indicated in its Non-Regulatory Guidance on waivers published in 2009, ED considered certain waiver requests with respect to American Recovery and Reinvestment Act (ARRA) funding, such as “waivers to permit a local education agency (most often a school district) to exclude ARRA funds when making certain fiscal and set-aside calculations, waivers related to the limitation on carryover for an LEA that has excess Title I, Part A funds, and waivers of maintenance-of-effort requirements.”

Congressmen Kline and Hunter requested even more specificity on ED’s waiver program in a letter to Secretary Duncan dated June, 2011.  As Alyson Klein reported in Education Week in July 2011, ED has not responded.

Sources: CRS Memo, 6/28/11; ED Non-Regulatory Guidance, 7/09; ED’s Top 5 Questions About NCLB Flexibility; Letter from Congressmen Kline and Hunter, 6/23/11