Waiver War: Challenge Escalates over NCLB “Flexibility”

U.S. Department of Education Secretary Arne Duncan’s agrees with state officials in South Dakota, Montana and Idaho that the federal education accountability law commonly known as No Child Left Behind (NCLB) is broken and needs to be overhauled by Congress. However, that doesn't mean he's willing to accept plans by those states to thumb their noses at NCLB guidelines and use their own accountability measures instead of those imposed under NCLB.

In June, Duncan said he was willing to be flexible and provide states with  enforcement waivers until Congress acts on reauthorization of the Elementary and Secondary Education Act, the more formal name given NCLB. Unlike Kentucky, which has petitioned the Department of Education for a waiver, South Dakota, Idaho and Montana have announced they will not follow the federal accountability law, and instead will use their own accountability systems.

The Department of Education refers to Duncan’s offer of waivers as a Plan B. However, by any name, Duncan’s offer to be flexible with states over NCLB enforcement is running into more than a little criticism in Congress from members who question his authority to take that action.

A report from the Congressional Research Service released Tuesday raises concerns about the Duncan’s recent proposal to grant conditional in exchange for reforms not authorized by Congress.

The CRS analysis confirms the Secretary’s authority to waive statutory requirements under NCLB. However, the report warns of potential legal limits and challenges to the Secretary’s proposal to grant conditional waivers. The report states, “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 department) failed to sufficiently justify its rationale for imposing such conditions. 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.”

On June 23, Chairman John Kline (R-MN) and Subcommittee on Early Childhood, Elementary, and Secondary Education Chairman Duncan Hunter (R-CA) sent a letter to Duncan asking for more information about the Department of Education’s recent proposal to grant conditional waivers to states and schools. In the letter, Kline and Hunter state, “We strongly believe any initiative that could exacerbate the frustration and uncertainty facing schools is the wrong direction for our nation’s education system.”

Despite a July 1 deadline, Kline and Hunter have not yet received a response from the Secretary.  The CRS report underscores the urgent need for the Secretary to fully explain his conditional waiver proposal and offer the legal justification for his plan.

On June 29, South Dakota’s Secretary of Education Melody Shopp announced the state will defy NCLB rules by using 2009-2010 goals rather than higher expectations required for the last school under under NCLB guidelines. She also notified U.S. Education Secretary Arne Duncan the state will reduce its graduation rate goal to 80 percent from its current 85 percent.

South Dakota follows on the heels of a decision by the Idaho Department of Education to disregard NCLB because the law is “failing,” according to Superintendent of Public Instruction Tom Luna.

A full analysis of Duncan’s proposed NCLB waivers, conducted by the Congressional Research Service can be found at http://edworkforce.house.gov/UploadedFiles/June_28_2011_CRS_report.pdf.

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