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To Waiver, or Not to Waiver?

August 23, 2011

By Norm Fruchter

U.S. Education Secretary Arne Duncan has proposed granting waivers to states to exempt them from some of the punitive sanctions of the No Child Left Behind (NCLB) law. The Secretary has the power to issue waivers from some of the law’s requirements. But it’s not clear that Duncan can legally require states to implement the administration’s favorite reform policies in exchange for waivers, which is what he’s proposing.

Although details are yet to be announced, Duncan will probably require a mix of the initial Race to the Top priorities that have divided the NY Board of Regents and many other school systems– support for Common Core curriculum and assessments, further expansion and support of charter schools, closing failing schools, and using student test scores as a key component of teacher evaluation – as the trade-off for waivers. This latest Duncan maneuver represents an end-run around a Congress as conflicted about reauthorizing NCLB as it was over extending the federal debt limit. Since the Obama administration refused to invoke a legally risky Constitutional provision to unilaterally raise the debt limit, why is it trying an equally risky strategy to rewrite NCLB by fiat, rather than by fighting to get its reform policies written into the Congressional revision? The legal risk is not trivial. Any state that rejects a waiver because it opposes the policies it most adopt to get the waiver can sue the administration, on the grounds that Duncan is substituting administrative reform for Congressional will. It is not clear that Duncan and the Obama administration would ultimately prevail in the courts.

But the problem is larger than the possible illegality of Duncan’s strategy. The cost of the trade-off that Duncan is offering will enhance the damage that the Obama administration’s education policies are inflicting on schools across the country. The administration’s reforms have no track record of research support or success on the ground. They have thus far failed to improve student achievement or school performance in the short run; their long-run record is not likely to be any better. They will encourage a wasteful expansion of reductive testing, a debilitating continuation of watered-down curricula, an intensification of the fierce local wars pitting charter school supporters against public school constituents, and corrosive pressures that are eroding the effectiveness of the nation’s teachers.

Duncan is proposing a disastrously bad bargain. States should reject his waiver offer and, as a few states have already done, refuse to continue to comply with NCLB requirements. Montana, for example, told Duncan’s office that the state would not continue to comply with NCLB requirements, and the department negotiated a huge reduction in the number of Montana’s schools. Other states should follow Montana’s footsteps.

Norm Fruchter is a senior policy analyst at the Annenberg Institute for School Reform

2 Comments leave one →
  1. EDVox#1fan permalink
    August 27, 2011 12:06 am

    The impact of Duncan’s waivers will be the final nails in the coffins of what has become urban public education. It has been alleged in the media that among the things being considered by the Secretary as part of the waiver package include elimination of Supplemental Education Services, SES tutoring and of NCLB transfers which in NYC will give rise to even more PLA schools, phaseouts, public charter schools,and.the ultimate privatization of public education.


  1. Remainders: Against “deniers” and “corporate reformers” both | GothamSchools

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