Education Waivers 101

Eight Questions You Should Ask About Education Waivers

Cynthia Brown and Jeremy Ayers explain why the Department of Education will offer waivers that allow states to forego ineffective requirements in No Child Left Behind.

Secretary of Education Arne Duncan. (AP/Tony Dejak)
Secretary of Education Arne Duncan. (AP/Tony Dejak)

Today President Barack Obama announced that the Department of Education will begin waiving some requirements of federal education law in exchange for states agreeing to take on school reforms. Such a move could provide much needed flexibility while maintaining positive pressure on states to improve their education systems.

At a White House event, the president explained how his administration will relieve states from some problems with the Elementary and Secondary Education Act, or ESEA. States can apply to waive parts of the law that are impractical or ineffective—such as ensuring all students are proficient in math and reading by 2014 or ensuring all teachers have credentials to enter the profession but are not necessarily effective in the classroom. In exchange, states must agree to enhance their approach to school reform.

As part of the initiative, states must agree to a rigorous and comprehensive plan that addresses a number of reforms such as adopting college and career standards, developing differentiated accountability systems, and evaluating and supporting teacher effectiveness. States must also continue to set ambitious but achievable goals for closing achievement gaps and ensuring students reach the new standards. These are common sense changes that provide greater flexibility to states while also encouraging them to move forward in improving their schools. 

Why are waivers being discussed?

The current version of ESEA, known as No Child Left Behind, has glaring problems that need immediate fixing. The law identifies schools as “in need of improvement” whether they missed achievement targets by a little or a lot. The law prescribes interventions for those schools, but they are not working as well as they could. And the law ensures teachers have credentials to enter the profession but does not ensure they are effective with students in the classroom.

Congress needs to reauthorize ESEA to solve such problems permanently. But lawmakers have not been able to come to agreement, and the law has been operating on auto-pilot since 2007 when it was scheduled to be revised. Republicans have proposed highly partisan bills that would scale back federal accountability for low-performing schools and students, and even limit accountability for how states and districts use taxpayer funds. With little prospect for bipartisan cooperation in sight, the Obama administration is wise to take action to ensure states, districts, and schools move forward in education reform.

What is a waiver?

ESEA, like almost all federal laws, allows states to forego, or waive, certain requirements of the law as long as they receive permission from the federal government—in this case the Department of Education. Some aspects of the law cannot be waived, such as civil rights protections, programs for parent involvement, and certain fiscal requirements around the allocation of funds. But the rest is fair game.

States submit applications for waivers, including input from their school districts, to the secretary for consideration. They must identify what parts of the law they wish to have waived, why they are seeking such a waiver, and what actions they will take to ensure students continue to make academic progress. The secretary has full discretion to decide which requests are granted but must publish who receives a waiver in the Federal Register.

Are waivers legal?

Some conservatives have argued the secretary’s plan to put conditions on waivers is an overreach of authority or even unconstitutional. We understand this concern but feel it is ultimately unfounded. ESEA clearly grants the secretary authority to grant waivers. It does not expressly allow the secretary to put conditions on waivers. But such practice has been common in the past.

For instance, in 2006 Secretary of Education Margaret Spellings, serving under then-President George W. Bush, granted waivers in the same way Secretary Duncan has proposed. States were offered a waiver from the law’s accountability plans in exchange for meeting criteria the secretary set—using a method for calculating student growth. The secretary said in her announcement: “Today, I’m announcing a pilot program where interested and qualified states can submit proposals for developing growth models that follow the bright-line principles of No Child Left Behind.” Only a handful of states meeting the secretary’s conditions were given waivers.

Secretary Spellings offered states a similar opportunity in 2008 to alter the intensity and types of interventions the Department of Education administered in low-performing schools. Only those states meeting predetermined conditions were given waivers, and states meeting select criteria were given a priority to receive a waiver. Again, only a few states were granted waivers. Not one conservative commentator objected at the time.

To be clear, we are not lawyers. But as long as conditions are consonant with the law and integrally tied to its policy goals, they should pass muster. It makes sense that Secretary Duncan would waive, for example, parts of the current accountability requirements in exchange for states implementing enhanced standards and accountability systems. Besides, that is something states have claimed they are eager to do.

Is attaching conditions to waivers a good idea?

In short, the answer is yes. For one, the waivers help states, districts, and schools. For example, moving back the date of 2014—when schools must have 100 percent of students at grade level—is helpful to states wrestling with an impractical deadline. Moreover, the waivers promote reform consistent with current law, and the waivers require that states and districts demonstrate they are actively engaged in a rigorous and comprehensive effort to improve their education system.

Should waivers be made public? 

The entire waiver process should be transparent to the public. The Department of Education is right to use a peer review process for evaluating state applications so that the selection process is fair and transparent. Even the most well-meaning states or executive agencies may be tempted to lower the bar in an effort to accommodate their constituencies. An open process removes such a temptation and assures the public that the waiver process respects the democratic process of federal governance. Moreover, the Department of Education should post on its website state applications, its review of those applications, and detailed information about its decisions.

How long should waivers last?

Waivers can last up to four years under current law. Advocates in the field have argued for shorter terms. We agree that waivers should be short term so as to avoid circumventing the congressional reauthorization process. Plus, federal law rightly sets the bar high in terms of accountability. The department should not give too much latitude in timelines for setting academic goals and making progress with students. We urge the secretary to make waivers valid for one to three years, depending on their content, with an option to renew shorter-term waivers given the changing political landscape around ESEA.

Should parts of the law not be waived?

Some portions of ESEA are so integral to the law that they should not be waived, such as setting high standards, assessing student achievement, disaggregating data by student demographics, and requiring state and district action in low-performing schools. Weakening these parts of the law could allow some students to fall through the cracks by not factoring into state accountability systems subject to federal oversight. Furthermore, the latest version of ESEA clearly placed a priority on improving the quality of teachers and in closing achievement gaps. Waivers should not backtrack on those priorities.

What should be waived?

There are current aspects of ESEA that do not work or work poorly, and they are the right starting points for waivers.

ESEA requires districts with low-performing schools to intervene by offering students the ability to transfer to other schools and to receive supplemental educational services followed by increasingly serious consequences such as restructuring the school. Some of these provisions have been weak levers for school improvement. The department is right to grant states flexibility in the order and administration of interventions, along with openness to other interventions that states define.

ESEA requires 100 percent of students to be proficient in math and reading by 2014, a laudable goal. Many states have schools, however, that cannot get their achievement levels over 50 percent or 60 percent, despite years of sustained interventions. The department is right to waive the deadline but we urge them to set a new deadline and require ambitious but achievable goals so that pressure remains on states and districts to make substantial improvement.

ESEA requires teachers to be highly qualified, that is to have certain credentials to teach, but it does not ensure they are effective in the classroom. The department is right to move past input measures like credentials and to allow states to focus on evaluating and improving teachers’ effectiveness in raising student achievement.


The waiver process is an opportunity to relieve states of unnecessary barriers to the achievement of the basic goals of ESEA—improving academic results for all students. And it puts positive pressure on states to enhance their approach to accountability, teachers, and improving the education of students in struggling schools. The move is a step in the right direction.

Cynthia G. Brown is Vice President for Education Policy at the Center for American Progress. Jeremy Ayers is the Senior Education Policy Analyst at the Center.

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Cynthia G. Brown

Former Senior Fellow

Jeremy Ayers

Associate Director, Federal Education Programs