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Every Student Succeeds Act

Republicans Tell Miguel Cardona His Plan for ESSA Waivers Seems to Violate the Law

By Andrew Ujifusa — March 25, 2021 4 min read
White House press secretary Jen Psaki, left, listens as Education Secretary Miguel Cardona, center, speaks during a press briefing at the White House on March 17, 2021.

U.S. Secretary of Education Miguel Cardona’s decision to let states off the hook on federal accountability mandates this school year might be popular, but the way he’s going about it doesn’t necessarily follow the law.

That’s what the top two congressional Republicans for education policy told Cardona in a Thursday letter. Sen. Richard Burr, R-N.C., and Rep. Virginia Foxx, R-N.C., say the U.S. Department of Education’s formal waiver process requires states to report data about chronically absent students and access to technology devices and high-speed internet, but that the department has no authority under ESSA to demand that data.

In addition, Burr and Foxx say the department’s invitation to states to reach out via email to discuss flexibility about state tests signals that such conversations might not be transparent.

“The Obama administration used similarly opaque waiver processes to coerce states into the Department’s preferred policy directions, creating frustration and uncertainty among all stakeholders,” Burr and Foxx wrote to Cardona. “Signaling your willingness to negotiate with states outside of the public view suggests that the Department might once again resume these extralegal processes.”

The letter reflects concerns about data demands—and Arne Duncan’s record

Last month, the department announced that while it won’t consider states’ requests to simply cancel statewide exams mandated by ESSA, it will grant waivers from the law’s accountability requirements, like those requiring the identification of low-performing schools.

The form state officials use to seek these waivers asks them to agree to “make publicly available chronic absenteeism data” that is disaggregated by student subgroups where possible. States also have to agree to do the same when it comes to technology devices and high-speed internet. But the two lawmakers say both requests are “outside the scope of what states are seeking to be waived.”

The waiver application itself says that when it comes to reporting data about devices and internet access, states agree to share the data “to the extent such data are collected at the state or LEA level.” So the template doesn’t sound like an ironclad requirement to start collecting and sharing that data if a state doesn’t already have it.

"The template raises serious questions about your commitment to faithfully executing the laws under your jurisdiction and to transparency within the Department’s operations."

As for the data about chronically absent students: Many states are using data about chronic absenteeism to fulfill ESSA’s requirement that they report an indicator of “School Quality or Student Success.” In 2019, we reported that more than two-thirds of states were using various measures of chronic absenteeism in their ESSA plans. So in practice, many states already have this data (the application alludes to this possibility). The waiver application also allows states to use data they report about absenteeism to EDFacts, a data-reporting initiative run by the department, to fulfill this requirement.

Still, states that aren’t already collecting and reporting this data for ESSA purposes could find it to be burdensome. And however easy states might find it to fulfill these data requests, there are still demands for data.

Foxx and Burr say these demands fall outside the scope of the actual waivers states can seek from accountability requirements this academic year. ESSA doesn’t allow the secretary to reject waiver requests based on such demands. Whether Cardona and his team will actually try to pick a fight with any state about these accountability waivers, instead of just speedily approving them, is a different matter.

What about their reference to the Obama administration? Because the demands of the No Child Left Behind Act proved difficult if not impossible for many states, President Barack Obama’s education department granted them waivers from certain NCLB mandates. But in exchange, states had to negotiate with the department about shifts in policies related to teacher evaluations, content standards, and improving schools.

Although nearly every state jumped at the chance to get NCLB waivers roughly a decade ago, many ultimately soured on the experience. Some state officials complained that they ended up looking over their shoulders, although nearly all states ended up keeping their waivers. The department countered that Congress should address the issue by rewriting the law. Former U.S. Secretary of Education Arne Duncan also defended them in Congress, saying that they represented a Plan B, but also that it was in the department’s interest to protect students.

As a result of this controversy, when Congress passed ESSA in 2015, lawmakers put new requirements on the education secretary regarding waivers. In general, the law doesn’t allow the secretary to attach conditions to them that aren’t related to the waiver requests themselves. That’s the history and the legal context Burr and Foxx are alluding to here.

In addition to the concerns they raise, the lawmakers ask Cardona to square the application with ESSA’s language, whether emails from states to the department to discuss additional assessment flexibility constitute a separate waiver application, and other questions.

Ultimately, the GOP lawmakers are sending a signal to Cardona that they want the waiver process to be transparent, and that (unsurprisingly) they’ll be keeping an eye on what happens next.

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