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Kline: No Response from Ed. Department on Waiver Letter

By Alyson Klein — July 05, 2011 2 min read

Apparently, the U.S. Department of Education is not making Adequate Progress on its response to the Republican leaders on the House Education and the Workforce Committee.

As I’m sure you’ll remember, Rep. John Kline, the chairman of the committee, sent a letter last week to the department asking for details, by July 1, of U.S. Secretary of Education Arne Duncan’s plan to give states wiggle room on some unspecified parts of the No Child Left Behind Act, in exchange for adopting certain yet unspecified “reforms.”

That July 1 deadline has come and gone and, apparently, Kline hasn’t heard back from the department yet, according to this news release.

Kline’s staff also pointed reporters to a June 28 report from the Congressional Research Service, the non-partisan research arm of Congress. CRS found that the Secretary has the authority to waive major portions of the NCLB law, including on accountability, standards, school choice, the 2014 deadline, and other hot-button parts of the law.

But Kline’s office points to language in the report handicapping possible legal challenges to the Secretary’s plan to give states on leeway in exchange for action on certain reforms. Here’s the paragraph cited:

“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.”

If you’re in the mood for some very wonky beach reading, you can check out the full report here.

In essence, CRS says the department is generally within its rights to go ahead with waivers, but needs to tread carefully. The administration has the authority to grant waivers that come with strings, more or less, as long as those waivers are totally voluntary, meaning that states don’t have to apply. But the department is on shakier ground if it tries to require states to apply for the waivers and, therefore, embrace the new policies, CRS says.

Confused? Can’t blame you. Plus, CRS added a sort of all-inclusive, cover-all-the-bases, legalese caveat, saying that the success of any potential lawsuit on the waiver issue would really depend on the facts of the case, and we’re a long way from that.

Another important question: Who would actually do the suing on this? States that get turned down for waivers? Congress? Education advocates or practioners who still like NCLB? Those concerned about federal overreach? No one? Stay tuned.