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How Does Current Law Limit Betsy DeVos' Power to Waive Education Mandates?

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U.S. Secretary of Education Betsy DeVos has already made waves by allowing states to apply to cancel their federally mandated standardized tests this spring amid the coronavirus pandemic. And a host of states have seized that chance to nix tests; we could see just a smattering of exams in the coming weeks.

But that broad stroke of executive authority raises another question: Just what exactly are the boundaries of DeVos' power to waive federal education law?

It's not an idle question. A Senate coronavirus stimulus package introduced last week would give the secretary sweeping power to waive key sections of several federal education law and report to the Senate as to where she thinks "limited flexibility" from federal special education law is necessary—it's not at all clear whether all, none, or some of this proposed language will make it into any final legislation Trump signs. And a House coronavirus aid bill makes it explicit that it would not give DeVos any additional authority to waive major federal education laws. 

So with the economy slipping and schools facing unprecedented uncertainty, it's probably worth pointing to several restrictions on DeVos' existing authority to waive federal education law. 

Every Student Succeeds Act

DeVos already has demonstrated her power to waive a crucial piece of the Every Student Succeeds Act, the nation's main K-12 law. However, the law does include restrictions on the secretary's waiver power. And with state and local budgets poised to take a big hit, it's worth noting that some of those restrictions have to do with funding. Here are several of those prohibitions: 

  • The secretary can't waive requirements for allocating of federal money to state, school districts, and Indian tribes. That basically means DeVos can't just do away with the Title I funding formula, for example. 
  • DeVos can't do away with a requirement that states keep up their own K-12 spending at constant or near-constant levels in order to tap federal dollars, a provision of the law known as "maintenance of effort." 
  • The secretary can't waive requirements that school districts provide services to Title I schools—those with large shares of low-income students—that are comparable to services in non-Title I schools. That's a complicated provision of the law you can read more about here.
  • DeVos can't waive the requirement that states and schools must use federal money to supplement, and not supplant, their state and local funding. More on that issue here
  • The secretary can't waive "applicable civil rights requirements." That's a reference to laws such as the Americans with Disabilities Act and Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, and national origin in programs that receive federal funding. It's also broadly understood to refer to elements of the Individuals With Disabilities Education Act, the federal law governing special education (more on that in a moment). 
  • DeVos can't waive broad prohibitions on using ESSA funds for transportation purposes, for school construction or repair, or for any programs or materials that "promote or encourage sexual activity." She's also barred from waiving prohibitions on using ESSA money to distribute contraceptives at schools.
  • The secretary can't waive a ban on using ESSA money to pay for religious materials or instruction. 

Individuals With Disabilities Education Act

The education secretary's ability to waive elements of the IDEA is much more restricted than it is for ESSA. Let's look at one instance where DeVos does have a power to waive a section of the law that's relevant amid the coronavirus outbreak. 

The requirement for states and schools to maintain their education spending in order to access federal money also applies to special education funding. However, DeVos can grant "waivers for exceptional or uncontrollable circumstances" (see page 42 of the law here) from that maintenance of effort provision, if there is "a natural disaster or a precipitous and unforeseen decline in the financial resources of the State." 

We don't know yet how badly the coronavirus will damage the economy of the country and particular areas. But many would classify the virus as a "natural disaster" of a sort, and it could have a very negative affect on states' financial resources. If education leaders seek waivers under this part of IDEA, DeVos' decision about whether to grant them would be very closely scrutinized.

In 2018, the Education Department rejected a request from New York state to get a waiver from ESSA to let students with disabilities take tests that did not correspond with their grade level. 

You can read more about that waiver process here. In the wake of the Great Recession, a few states did seek waivers in order to cut back the amount of special education funding they provided to districts. Broadly speaking, IDEA itself requires school districts to provide a "free appropriate public education" to students with disabilities. 

While the secretary is generally prohibited from waiving provisions of IDEA, states and districts should on their own try to take advantage of significant flexibility within the law and be creative in providing services to students, said Lindsay Jones, the executive director of the National Center for Learning Disabilities. 

"I think it is important this time, more than ever, for schools and families to be doing what they can to deliver education under these circumstances," Jones said. "And that's hard for everyone. It's not going to be perfect."
She added that she was quite concerned about Senate bill language that could lead to limited waivers from IDEA, saying, "We're talking about waiving people's rights. These are rights that are in place because of the history of discrimination."

'Blanket National Waivers'

The issue of education waivers in the time of the coronavirus pandemic has been percolating in Washington for the past several days. 

The day after the release of the Senate proposal to give DeVos broad waiver authority, a coalition of six national groups responded by publicly stating that "it would be premature to issue blanket national waivers from core components" of ESSA. The coalition, also said that as far as waivers go, states needed to be considered on a case-by-case basis. 

In the event of waivers from state exams, "It is critical for accountability determinations to be carried over from the prior year to ensure transparency and continued support for students while any such waivers are in effect," said the statement, which was published by Alliance for Excellent Education, the left-leaning Center for American Progress, the National Center for Learning Disabilities, the National Urban League, the Education Trust, and UnidosUS. 

As for IDEA, the groups were more straightforward, stating that "no new waiver authority is necessary" from the special education law. They pointed to districts' efforts to provide a variety of learning opportunities to students while their schools are closed, and added that, "Districts must actively plan to ensure that students are afforded all of their rights under federal law."

On the other hand, the Heritage Foundation, a Washington think tank that advocates for limited government, responded differently to the idea of allowing waivers from portions of IDEA, as well as state exams. 

"During this time of crisis, [a provision on IDEA waivers] would enable the Secretary to clarify that the agency will not punish schools for delivering instructional content online, even if it cannot ensure that every student will have immediately," Heritage said in an analysis of the initial Senate bill introduced last Thursday. (Again, that bill is the subject of intense negotiations and could look quite different by the time it passes).

'We Need to Educate All Students'

Over the weekend, the Education Department sought to clarify schools' responsibility to students with special needs as millions of students around the country switch to remote learning.

DeVos called it "extremely disappointing" to hear that some schools were not serving all students based on what they understood to be federal requirements. 

"Nothing issued by this department should in any way prevent any school from offering educational programs through distance instruction. We need schools to educate all students out of principle, rather than educate no students out of fear," DeVos said in a statement.

Staff Writer Evie Blad contributed to this piece.

Photo: U.S. Secretary of Education Betsy DeVos on Capitol Hill earlier this year. -- Tom Williams/CQ Roll Call via AP Images


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