Education Opinion

My E-Mail Exchange With Kevin Carey on Section 9401 and Differentiated Accountability

March 28, 2008 6 min read
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As longtime edbizbuzz readers know, unless someone writing me prefaces their remarks with “not for publication” or “off the record,” I consider it a letter to the editor. The main reason for this is that I do not blog for private conversations, but to promote public debate. Here is the exchange that went on between me and The Quick and the Ed’s Kevin Carey of EdSector (minus typos) over the somewhat arcane issues around the Secretary of Education’s authority to conduct the differentiated accountability program under NCLB Section 9401, and whether or not a Secretary would use that authority only where he or she has some kind of consensus around the policy. I post this to help readers come to their own conclusions.
Millot (March 27)


Strictly speaking, the Secretary is well within her legal rights.

Section 9401 very clearly permits her to waive any part of the law with very view substantive exceptions, and none relate to NCLB’s key provisions.

You can read my post on the program and link to the relevant section here: http://blogs.edweek.org/edweek/edbizbuzz/2008/03/on_the_department_of_education.html

The submission of a pilot program proposal satisfies the technical requirement that states make a formal request. As a practical matter, any Secretary can simply spell out the waivers they would make in detail and then invite states to apply. Spellings has just been a bit general to see what happens.

So, in fact, the law does say “the Secretary of Education may at her discretion alter or ignore the previous subparagraphs” - whatever the rationale.

Both Paige and Spellings failed to make adequate notification in the Federal Register as required, but that’s a technical violation.

See the IG report: http://www.ed.gov/about/offices/list/oig/whatsnew.html

I have been arguing for a repeal of the provision since at least April of 2005, for many of the reasons you note.

Fat chance then or now.

Looks like I’ll need to do a posting on this.


Marc Dean Millot
School Improvement Industry
“Intelligent Services for Public Education’s Thinking Edge”


I updated the post, don’t think it really changes anything though, this isn’t a waiver process in the way those are generally implemented and understood, and of course a future secretary could not “just as easily” use the waiver process to kill SES, the whole point is that this only works if you’ve got consensus which there certainly wouldn’t be in that case.

Kevin Carey
Research and Policy Manager
Education Sector
“Independent Analysis, Innovative Ideas”

Millot (March 28):


I disagree with you on both counts, but it’s an arcane point.

Let me preface this with “I’m not trying to be snide with the following questions:"

Are you speaking as a lawyer or a political analyst? (I’m speaking as both)

Are you speaking with knowledge of waiver processes in other agencies, or just “custom and usage” in the Department of Education? (I’ve studied many)

However, if you’d like, I’d be happy to discuss this for readers by cross blog.

Prior to your email, I did post a comment on your posting on edbizbuzz, and because you’ve changed your original, I’m posting it too for readers’ benefit.

FYI: my policy on changes to posts is that I feel free to do so until someone posts a comment.



I’m not speaking as a lawyer, not that that matters. Surely you don’t think that only lawyers are qualified to discuss the law? I’ve worked with enough lawyers and been involved in writing enough laws to know that’s not true.

I’m speaking with knowledge of waiver processes in other agencies.

I’m not sure what’s “arcane” about the point that, for all practical purposes, there is no way that the Secretary of Education could or would use the waiver process to eviscerate a portion of NCLB, SES, that was a major element of the negotiations over the bill in 2001, and that would create a huge outcry from influential members of Congress and industry groups. The odds of that happening are tiny to the point of being indistinguishable from zero. Surely that’s obvious.


Kevin, Andy:

Thanks to Kevin for getting back:

1. Actually, only lawyers are “qualified” to advise others on the law. Technically, the alternative is called “practicing without a license” and illegal, and why I spent years at law school and passed a bar exam. Of course there is free speech, so you are free to write whatever you want for the public at large. But to get to my motivation, I was asking only to see if you had an argument for your position based in law to which I might refer.

2. I guess we’ve had rather different experiences with the waiver of regulations outside the Department of Education - sometimes called “exceptions.” The idea that they are granted across all agencies of federal, state and local government only/generally/usually/typically under circumstances of broad consensus would surprise many the professor and practitioner of administrative law. I’ll just give one example from a never-ending stream found by Googling “waiver of federal law.” ( See: http://www.sanfranciscosentinel.com/?p=9205)

In January, the President waived portions of the U.S. Coastal Zone Management Act under which a federal court prohibited the US Navy from the use of mid-range sonar in areas less than 12 miles off the California coast when marine mammals come within 2200 yards of a naval vessel. I don’t have to explain in detail that there was no consensus on this among the various stakeholders, I’m sure President Bush would prefer widespread agreement, but the lack of it made no difference - even though he made a whole lot of powerful Democratic legislators very unhappy. A Democrat in the White House will undoubtably reverse this, and probably welcome an extension of the limits.

I would argue this story - and the hundreds like it that I could draw on from just this one search - offer the general rule in the waiver/exception process across government. However, if your experience argues that these are the exceptions, I welcome your contrary evidence. My point here is that political consensus is no prerequisite for federal waivers. More specifically the fact that a Republican Secretary of Education seems to have something (but not quite - remember AFT, Oregon, etc) like that for Differentiated Accountability is not an argument that waivers could not also be made by a Democratic Secretary willing to unsettle Republicans on the Hill.

3. What’s arcane - in the sense of mysterious or esoteric - is that no one gives a damn how the waivers are made but you and me. I’ve already tried to cover your substantive political points here: http://blogs.edweek.org/edweek/edbizbuzz/2008/03/education_sectors_kevin_carey.html. I only wrote about your original post because I’ve been following NCLB Section 9401 for a long time, and saw it as an example of a problem in the law’s administration.

I’m happy to continue this discussion, but leaving it simply between the two of us by email doesn’t really help our readers. As a general rule I consider all emails to me in the public domain unless the writer specifically notes otherwise up front, because I don’t want to get engaged behind the curtain. See here: http://archive.edbizbuzz.com/blog/_archives/2007/5/27/2978845.html

I blog to encourage open debate and I’m happy to leave the decision to the public. I’m not really trying to convince you that your position is wrong or weak, so if you want to keep up the volley, please do so on edbizbuzz, or leave some way to post comments on the quick and the ed.

No hard feelings on my end,


The opinions expressed in edbizbuzz are strictly those of the author(s) and do not reflect the opinions or endorsement of Editorial Projects in Education, or any of its publications.


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