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.