While Secretary Duncan gave early, encouraging indications that he supported such an approach, in recent years, regrettably, his department has moved ahead with an aggressive, constitutionally questionable policy
of conditional waivers, leading to a fierce backlash against federal overreach.
So while I'm not a fan
of conditional waivers as a policy, I must admit that it was an effective tool for waking the Senate out of its slumber.
Not exact matches
(We'll save for another day an examination
of the constitutional aspects
of all this, as Duncan's department evidently will be offering states
waivers from
conditional waivers, the statutory basis for which has long been in doubt.)
Note: Some
of these provisions aren't in current law — some were in the stimulus bill (like Race to the Top), some are in Secretary Duncan's
conditional waivers (like teacher evaluations), and some were in one
of the bills passed in July (like Title I portability).
The U.S. Department
of Education so far has granted
conditional waivers to 26 states from mandates such as the 2013 - 14 deadline for bringing all students to proficiency on state tests and the NCLB law's teacher - quality requirements.
President Obama sparked much debate in Washington with his plan to grant states
waivers from provisions
of the No Child Left Behind Act (NCLB),
conditional on their willingness to embrace certain reform proposals sketched out in the administration's March 2010 proposal, «A Blueprint for Reform: The Reauthorization
of the Elementary and Secondary Education Act.»
The Congressional Research Service (CRS), asked by a House committee for a legal analysis, replied that the secretary
of education has broad authority to grant
waivers, but hedged on the question
of whether these
waivers could be made
conditional.
The criticism
of the secretary's plan, which he and the president rolled out September 23 at the White House, stems from two issues: 1) the secretary's strategy
of making receipt
of the
waivers conditional on states agreeing to maintain or adopt a series
of reforms, and 2) the effect
of the
waivers on efforts to hold schools accountable for results.
In addition, some
of the substantive policy changes that Obama administration wants to put in place, through the
conditional waivers, are in the area
of a national curriculum.
Under the American constitutional system, officials
of the Executive branch should carry out the current law as it is, not engage in back - door legislating through
conditional waivers.
Arne Duncan's aggressive use
of «
conditional waivers» from the NCLB mandates is both unconstitutional and unwise, and his ham - handed push for test - based teacher evaluations and school discipline quotas is apt to cause serious harm to America's schools.
A few caveats: First, some
of these provisions aren't in current law — some were in the stimulus bill (like Race to the Top), some are in Arne Duncan's
conditional waivers (like teacher evaluations), and some are in one
of the bills passed this month (like Title I portability).
It granted states
waivers from the burdens
of No Child Left Behind (NCLB)--
conditional on continued adherence to Common Core or a federally - approved alternative.
(c) Such
waivers, substitutions, and
conditional acceptances as shall aid the practical effectuation
of the contract without sacrifice
of basic educational standards.
See Robert S. Eitel and Kent D. Talbert, «The Road to a National Curriculum: The Legal Aspects
of the Common Core Standards, Race to the Top, and
Conditional Waivers,» A Pioneer Institute White Paper no. 81 (February 2012): 1.
The Road to a National Curriculum: The Legal Aspects
of the Common Core Standards, Race to the Top, and
Conditional Waivers, by Robert Eitel and Kent Talbert with contribution from Williamson Evers, commissioned by the Pioneer Institute and co-sponsored by American Principles Project, the Pacific Research Institute, and the Federalist Society, February 2012.
Although Torlakson noted the
waiver program in his letter to Duncan - saying the «
conditional nature» poses a problem for California - it is unclear if the first - year head
of California schools is applying for such a
waiver.
Indeed, as University
of South Carolina law professor Derek W. Black writes in a recent analysis
of waivers, not only does NCLB not authorize
conditional waivers, even if a court were to read any
waiver authorization as implicitly authorizing conditions, the actual conditions attached — «college - and career - ready standards,» new teacher evaluations, etc. — fundamentally change the law.
Out
of the 32 states approved for No Child Left Behind
waivers, eight states have a
conditional waiver, meaning they have not yet satisfied the Obama administration's requirements for a new principal / teacher evaluation system, incorporation
of College and Career Readiness Standards and other stipulations.
The Agency will notify the lender
of concurrence with the debt ratio
waiver request by issuance
of Form RD 1980 - 18, «
Conditional Commitment for Single Family Housing Loan Guarantee.»
*
Waiver of fees is
conditional and $ 250 may be charged for early termination.