The Department of Education has granted waivers of key provisions of No Child Left Behind through the end of the 2013-14 school year to 34 states and the District of Columbia. It’s a complicated policy, but, as someone who worked on this issue for the Department until recently, I think it’s worth making clear that the next president will not have a magic wand to simply wave the waivers away.
Tuesday night, when Governor Romney’s education advisor Phil Handy was asked about the NCLB waivers, he hinted they would be reviewed alongside President Obama’s executive orders and that the NCLB waivers could be potentially rescinded just an executive order. It’s important to note the waivers are not an executive order, and this isn’t just semantics. They are waivers granted under Section 9401 of NCLB, which outlines the conditions under which the Secretary may grant waivers from provisions of the law, including what provisions he or she can’t waive, the length of the waivers, and the circumstances under which a waiver can be pulled. Here’s what it says about termination:
(f) TERMINATION OF WAIVERS- The Secretary shall terminate a waiver under this section if the Secretary determines, after notice and an opportunity for a hearing, that the performance of the State or other recipient affected by the waiver has been inadequate to justify a continuation of the waiver or if the waiver is no longer necessary to achieve its original purposes.
This section means a waiver can be terminated, but only after there is a formal, public, and definitely political process.
Besides the political issues, there are also a bunch of difficult technical challenges. Waiver states aren’t making Adequate Yearly Progress (AYP) determinations anymore, but NCLB required different consequences the more years a school was in need of improvement. Would every school go back to Year 1? States with a waiver are no longer required to offer school choice and supplemental tutoring. When, and how, would schools start doing that again? The 100-percent-proficient-by-2014 provision has been waived. If Romney pulled a waiver, would states have to go back to the 2014 deadline?
The next Education Department’s best option would be to choose not to enforce the waivers, but the Secretary wouldn’t get to pick pieces of NCLB and pieces of the waiver to enforce. If there was something specific the Department didn’t like in the waivers—like statewide teacher evaluation and support systems—officials could publicly announce that the Department would not monitor implementation of that element very closely, and that it wouldn’t be required for renewal.
A far crazier scenario is one that Rick Hess has been proposing under which the Romney administration would instead offer new waivers in exchange for parent triggers, vouchers, collective bargaining restrictions, limits on teacher pensions and benefits, and stricter financial accounting requirements. There are three huge issues there. One, states have to request the waivers, meaning a state would have to want to do all those things in exchange for flexibility. Two, the next administration would have to offer states flexibility from something. The Obama administration has already waived the most onerous provisions through 2014, meaning the next Secretary would have nothing additional to offer until then. Three, a Romney Administration would need to justify any actions not currently required under NCLB. Standards, assessments, accountability, and teacher quality are primary tenets of NCLB, which is why the current waivers deal with the exact same topics of standards, assessments, accountability, and teacher quality. NCLB does not mention restricting collective bargaining (actually it says it will not alter local collective bargaining), nor does it mention pensions, retirement, or vouchers. It would be hard to justify those as waiver requirements.
To be fair, it’s worth pointing out that the same legal requirements that would apply to President Romney apply to President Obama as well. The law protects states from any administration that tries to terminate waivers without cause before they expire, so the Obama Administration couldn’t announce in February 2013 that all of a sudden they’re adding new requirements to the existing waivers. They could add or change requirements for any new waivers, but they can’t just terminate a state’s waiver because they changed their mind about something or the state chief said something mean about them.
In the end, a President Romney would have some options at his disposal, but they’re not as clean or as easy as Handy or Hess would like us to believe. The question at this point is not, “would a President Romney end the waivers?” but rather, “would Romney initiate a public and political process to force 33 states and the District of Columbia, including Massachusetts, back under NCLB?” I’m betting the answer is no.