The Real Deal With NCLB Waivers

The press coverage I’m seeing this morning of the White House’s announced new No Child Left Behind waiver process is, in my view, pretty far off base. Some are even backwards, suggesting that this constitutes the administration backing off the reform concept embedded in NCLB. The reality is that this is the administration pushing the reform agenda forward.

Here’s the best way to think about it. Most federal policy is made through these big bills the “farm bill,” the “highway bill,” the “energy bill,” etc. that are always scheduled to sunset on particular schedules. But in addition to their informal names, these bills also have technical legislative names. So the most recent version of the “highway bill” (which actually funds all federal surface transportation programs including mass transit) was given the absurd name “Safe, Accountable, Flexible, Efficient Transportation Equity Act” because that produces an acronym you can pronounce. “Safety,” get it? The previous version was the “Intermodal Surface Transportation Efficiency Act,” known as “ice tea” to the cool kids. Similarly, ever since Lyndon Johnson’s 1965 Elementary and Secondary Education Act, we’ve had an “education bill” to govern federal involvement in K-12 education. This bill, like other bills, is scheduled to expire every so often and be reauthorized by congress.

Back in 2001 we had one such reauthorization. This essentially took the form of George W Bush and George Miller forming a coalition between the “deficits don’t matter” faction of the Republican Party and the “education reform” faction of the Democratic Party. It increased spending levels, and did a bunch of reformy stuff with “reformy stuff” meaning use tests to measure things and try to get schools to focus on the learning of poor kids with weak skills rather than middle class kids with median skills.

The law expired near the end of the Bush administration. President Obama, who comes from the reform faction of Democrats, wants to do a reauthorization that’s in the spirit of NCLB. He wants, in other words, to push for more reform. And the hope at the beginning of the administration was that they could deal first with issues like health care and climate change that unite the Democratic coalition and then pivot to education where the prospects for bipartisanship are better. It’s now clear, however, that no such reauthorization is going to happen in the current congress. And yet, Obama wants to drive the reform agenda forward. Fortunately for him, NCLB gives him a lever. The law—intentionally, as I understand it—set an unrealistic goal of 100 percent proficiency by 2014. But the law also allows the Secretary of Education to grant waivers. Since the goal is unrealistic, states will be wanting those waivers. So by making the waivers conditional on states doing new reformy stuff, the administration can push the reform agenda forward without congressional authorization. Now of course congress always has leverage of its own. If a determined majority in congress decides that it desperately wants to stop Secretary Duncan from imposing conditionality on the waivers, they have many levers with which to try to do so including the basic fact that the Department of Education needs to be funded through annual appropriations. The situation is fundamentally similar to the EPA’s authority to regulate greenhouse gases, the difference is that the White House is being bolder on education reform in part because they think Congress will let them get away with more.

Many press reports are mixing this all up by misconstruing the practical alternative to conditional waivers. Simply refusing to grant waivers would be an unworkable non-starter. The issue is whether to just hand the waivers out, or to impose conditionality. The story is that the administration is trying to drive reform forward by imposing conditionality, not that they’re backing off reform by granting the waivers. For more details please see my colleagues on Waivers 101 and how to improve ESEA.