Conditional Waivers - Legal and Policy Issues

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The Obama administration characterizes its plan to offer states waivers from some provisions of the No Child Left Behind Act (NCLB) as a necessary response to glacial congressional progress on reauthorizing and revising the Elementary and Secondary Education Act (whose current version is NCLB). In exchange for the states’ acceptance of the administration’s “principles” set forth in its Blueprint for Reform, they will be exempt from some of the more onerous NCLB timetables and yearly-progress provisions. While the conditional waivers are welcomed by many states – 41 have indicated their intent to apply for them – some analysts are questioning their legal status and effect on school accountability.

Martha Derthick and Andy Rotherham discuss whether the conditional waivers are necessary and will stand up to legal scrutiny.

Raising concerns to which the NCLB waivers point, Derthick asks, “Just how far is the United States going to take government-by-waiver?” The framers of the United States Constitution wrote that it is a duty of the chief executive to “take care” that the law be faithfully executed, but waivers began to make a significant appearance in public policymaking in the 1980s and 1990s. While recognizing that waiver provisions in federal law have repeatedly been upheld in court, Derthick cautions, “waivers threaten to get out of hand, and to undermine the rule of law.” “Nothing in the law,” she writes, authorizes the administration “to craft new conditions – in effect, to attempt making law itself – even if the new conditions are not called law or rules or conditions or standards, but merely ‘principles.’”

Derthick and Rotherham agree that some action to revise NCLB is needed. Rotherham observes that foot-dragging on reauthorizing and revising NCLB reflects the current political and governmental stalemate in Washington. “This dysfunction matters,” he writes, “because when NCLB was passed in 2001, no one involved imagined the law would run for at least a decade without a congressional overhaul.”

Rotherham observes that there are some broadly supported provisions in the administration’s waiver package, such as getting rid of NCLB’s “highly qualified teacher rules,” which many states “have gamed...to the point of meaninglessness.”

However, a key reform of NCLB, Rotherham writes, was that it “changed the unit of analysis for educational performance and accountability from schools to students.” Thus, NCLB has shined a light on the performance of minority students and students with disabilities even in schools that had generally high levels of student achievement. Accountability provisions such as these are likely to be muted under the new NCLB waivers, which stipulate that states must focus their improvement efforts on the lowest-performing 15% of schools, but de-emphasize performance of student sub-groups in every school. He states that the law “does not need a rollback of this bright and often uncomfortable light.”

Derthick observes, “there is a lot of prescription woven in among the principles” that U.S. Secretary of Education, Arne Duncan, stipulates. For example, six states, including Virginia and Texas, have not yet adopted the Common Core standards in reading and math that are one of the conditions for being granted waivers. She wonders if the Department of Education will withhold federal funding if these states apply for waivers but offer much less in the way of conforming principles than Secretary Duncan would like. She also wonders how the Department will respond if some states “just stop complying with NCLB and drag their feet on the waivers.” Courts have been applying a “clear statement” rule for federal grant-in-aid conditions, stipulating that a federal agency cannot withhold funds unless states have been told their obligations in plain language. “If that were the test,” Derthick states, “The Department of Education would be heading into court with a weak hand.”

About the Authors

Martha Derthick is professor emerita of government at the University of Virginia and co-author of the legal beat column for Education Next. Andrew Rotherham is a former White House aide for President Clinton, co-founder of Bellwether Education, and columnist for Time magazine.

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