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District NCLB Waivers: Do Risks Outweigh Rewards?

During a Senate hearing earlier this month on the U.S. Department of Education's state waiver program under the No Child Left Behind Act, Education Secretary Arne Duncan was asked point-blank if he was considering offering similar flexibility for school districts.

Duncan gave the Senate Health, Education, Labor, and Pensions Committee the strong impression that he was not considering this, despite his own earlier comments that district-level NCLB waivers are very much on the table.

And so it shouldn't come as a surprise that Republican U.S. Sen. Lamar Alexander of Tennesee—the one who asked Duncan the point-blank district waiver question—seems none too happy to learn that the department is in talks with a group of California districts about district flexibility.

Alexander, the top Republican on the Senate education committee and a former education secretary, gave my colleague Alyson this statement last night:

At a hearing two weeks ago, I asked Secretary Duncan if he planned to offer waivers to school districts, and he said he wanted to continue to work with states, and agreed that the best solution would be for Congress to fix and reauthorize the law. I can't imagine that has changed in just two weeks, especially before the deadline for states to apply. In any event, federal law does not give the secretary authority to grant waivers directly to school districts.

It is important to note that the waiver authority embedded in NCLB does allow for waivers directly to districts, so long as the state gets the chance to "review" the flexibility request. But one Senate aide interprets that "review" to mean something closer to approval power. Duncan is "clearly trying to subvert California," the aide said.

Certainly, waivers benefiting districts have been given before. (Think of tutoring/school choice waivers, and even a waiver allowing some different tests to be given in a few Kansas districts.)

But Alexander's comment highlights the technical and legal difficulties of crafting a waiver program for districts, since the NCLB law mostly governs the relationship between the feds and states. For example, the law requires that states set annual academic targets—the basis for a whole cascade of sanctions that follow. The department is very much aware of these challenges, as Carmel Martin, a top aide to Duncan, said yesterday in an interview with reporters. If the department goes down this road, the waivers would only apply to districts in states that do not have their own state-level waiver. And, Duncan has made clear he won't consider any district application until after the Feb. 28 deadline for the next round of states to submit waiver applications.

Regardless, it seems like there could be more risks in pursuing these waivers for the department than gains. The department risks irritating, if not angering, a whole host of important folks—like Alexander. A Senate aide said if Duncan goes ahead with district waivers, it will "make it that much more difficult to get any Republican to work with the department in good faith." And states have already objected to this potential move as undercutting their authority. I can't imagine the rural district folks are going to like this either, since they will see it as another way the federal department is favoring large urban districts. (It would take A LOT of rural districts to cover as many students as the CORE California districts, which represent more than 1 million students.) And districts in states that have waivers might object because they didn't get to design their own waiver plan.

So who will like a district-level waiver plan? Obviously, the CORE California districts will—and that's not insignificant, as they have more public school students than some individual states. And possibly another fan might be U.S. Rep. George Miller, the top Democrat (from California!) on the House education committee who is a friend of the administration's on many education issues. In nonwaiver states, other districts that see this as an opportunity could also be in favor, although only a handful of states seem likely to sit out of the department's waiver process.

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