By Justin Lam. Full Text.
The Elementary and Secondary Education Act of 1965 allows the Secretary of Education to waive most of its statutory or regulatory requirements. For the Secretary to do so, a state educational agency, local educational agency, or a tribe must request a waiver and show how a requested waiver would “advance student achievement.” Congress narrowed the Secretary’s waiver authority in successive reauthorizations of the Act. This meant that COVID-19 assessment waivers faced a different Overton window, or range of politically acceptable policies, than that of No Child Left Behind. Yet the Act’s text, court decisions, and interpretations of similar waiver provisions suggest the Secretary still has broad discretion. And the Act’s structure as a “big waiver” scheme, which includes the authority to waive almost any part of a statute or condition a waiver, means that discretion can further Congress’s goals amidst changing conditions.
The Biden Administration should make an interpretive rule that interprets the Act’s waiver requirements to support whole child equity. This approach understands that adverse childhood experiences—and schools’ academic, social, and emotional supports for students in the wake of those experiences—affect student achievement. Under such an interpretive rule, a state, local educational agency, or tribe would need to show how a requested waiver would “advance student achievement” in the context of the needs of the whole child. Such a rule would preserve the Secretary’s flexibility while adding transparency. And such a rule would show how the Secretary might evaluate requests to waive annual testing requirements; nudge states toward state plan amendments that reflect Administration priorities; and advance additional priorities in areas like charter school oversight, Student Support and Academic Enrichment Grants, flexibility for equitable per pupil funding, or desegregation.