Waivering

Per this differentiated consequences pilot and previous pilots Dean Millot is right that there is waiver authority in federal policy but this is a pretty, shall we say, “robust” use of it and does raises serious precedent questions going forward and rightly alarms separation of powers types as part of a larger blurring of the lines between legislative and executive functions. Usually the waiver process is for more picayune stuff. And Kevin Carey’s point, a view I share, is that so far these things have all keyed off of one variable: Whether interest groups liked them or not.

Kevin also notes that: For readers not steeped in NCLB arcana–and really, what’s the matter with you–Secretary of Education Margaret Spellings announced that she would allow 10 states to change what they do with schools that fail to make “adequately yearly progress” under NCLB. As written in the law, AYP is binary standard–you make it or you don’t, and the law doesn’t distinguish between schools that miss the cut with one group of students by an inch and those that miss with all their students by a mile. NCLB critics say this is simplistic and unfair, and they have a point. A somewhat overblown point, since states have adopted a range of statistical gimmicks to prevent schools from missing AYP by any amount, and because you have to miss AYP for multiple consecutive years for consequences to really kick in. But a point nonetheless.

Well, you do make “adequate yearly progress” (AYP) or you don’t but there is a “safe-harbor” provision that actually does distinguish to some extent between schools missing by a little or a lot. And, although after two-and three-years of missing the targets some “automatic” consequences, — public school choice and tutoring for students — do kick in for such schools, beyond that the law gives states a fair amount of latitude to differentiate what happens to these schools. The problem is that there hasn’t been a lot of innovation around all that at all and a lot of evasion, which is one reason the pilot is a good idea on the policy side of things. And Kevin is right about the gimmicks, and has done a great job documenting them, but that owes less to the specifics of the policy than the more general dynamics of a law like No Child Left Behind.

2 thoughts on “Waivering

  1. Marc Dean Millot

    NCLB’s broad waiver provision, Section 9401, is a serious problem in the implementation of the law. It is a particular problem for anyone in the system relies on a stable and predictable system of regulation. It is certainly a challenge for investors who bought into the law’s basic mechanism for attracting capital – the interplay of its AYP and SBR provisions.

    However, I don’t think its fair to raise separation of powers concerns here. Similarly broad provisions of authority to the Secretary have been the norm in ESEA’s history – the flip side of the law’s lack of real accountability provisions prior to NCLB. And, as you and Kevin point out, up to know these powers have always been used in the context of the laws implementation as a matter of political negotiation between the feds and states.

    Since Congress always put something like 9401 in ESEA, its reasonable to conclude that they wanted to continue this practice. They wanted a Secretary to be able to modify the law broadly as in the past.

    As I’ve noted, waiver authority is always part of major federal legislation. The problem here is not that the Secretary has stretched her authority to some breaking point. The problem is that what Congress allowed in NCLB doesn’t support the kind of a regulatory system NCLB needs to be effective. I would argue that the Secreatry’s authority should not extend to waivers of AYP or SBR/SBBR/RB provisions. It is simply too disruptive of the school improvement market, and discourages new capital from investing in innovative programs.

    But again, the fact that so far throughout the history of ESEA the broad waiver authority has been the result of a more or less broad consensus among those who matter in some general political sense, in no way means that future Secretary could use it more like his or her counterpart in other agencies.

    As I pointed out on edbizbuzz in my posting of the email exchange with Kevin, consensus is by no means the universal norm in waivers or regulations across federal departments. I understand that you and Kevin believe this would never happen in Education, but I haven’t seen an argument explaining consensus would be sacrosanct here given the likely state of NCLB reauthorization should Democrats win the White House, say 15 more seats in the House, and maybe control of the Senate.

    In this case, I can see a Democratic Secretary of Education, unable to push the Administration’s view past the Senate, decide that Section 9401 is a reasonable alternative. I can certainly see the threat being used in negotiation with Senate Republicans. I don’t think you could call that scenario a consensus.

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