U.S. Secretary of Education Betsy DeVos has already made waves by allowing states to apply to this spring amid the coronavirus pandemic. And ; 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鈥� power to waive federal education law?
It鈥檚 not an idle question. A Senate coronavirus stimulus package introduced last week to waive key sections of several federal education law and report to the Senate as to where she thinks 鈥渓imited flexibility鈥� from federal special education law is necessary鈥攊t鈥檚 not at all clear whether all, none, or some of this proposed language will make it into any final legislation Trump signs. And 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鈥檚 probably worth pointing to several restrictions on DeVos鈥� existing authority to waive federal education law.
Every Student Succeeds Act
DeVos already has demonstrated her power to waive a crucial piece of the , the nation鈥檚 main K-12 law. However, the law does include restrictions on the secretary鈥檚 waiver power. And with state and local budgets poised to take a big hit, it鈥檚 worth noting that some of those restrictions have to do with funding. Here are several of those prohibitions:
- The secretary can鈥檛 waive requirements for allocating of federal money to state, school districts, and Indian tribes. That basically means DeVos can鈥檛 just do away with the Title I funding formula, for example.
- DeVos can鈥檛 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 鈥渕aintenance of effort.鈥�
- The secretary can鈥檛 waive requirements that school districts provide services to Title I schools鈥攖hose with large shares of low-income students鈥攖hat are comparable to services in non-Title I schools. That鈥檚 a complicated provision of the law .
- DeVos can鈥檛 waive the requirement that states and schools must use federal money to supplement, and not supplant, their state and local funding. .
- The secretary can鈥檛 waive 鈥渁pplicable civil rights requirements.鈥� That鈥檚 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鈥檚 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鈥檛 waive broad prohibitions on using ESSA funds for transportation purposes, for school construction or repair, or for any programs or materials that 鈥減romote or encourage sexual activity.鈥� She鈥檚 also barred from waiving prohibitions on using ESSA money to distribute contraceptives at schools.
- The secretary can鈥檛 waive a ban on using ESSA money to pay for religious materials or instruction.
Individuals With Disabilities Education Act
The education secretary鈥檚 ability to waive elements of the IDEA is much more restricted than it is for ESSA. Let鈥檚 look at one instance where DeVos does have a power to waive a section of the law that鈥檚 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 鈥渨aivers for exceptional or uncontrollable circumstances鈥� () from that maintenance of effort provision, if there is 鈥渁 natural disaster or a precipitous and unforeseen decline in the financial resources of the State.鈥�
We don鈥檛 know yet how badly the coronavirus will damage the economy of the country and particular areas. But many would classify the virus as a 鈥渘atural disaster鈥� of a sort, and it could have a very negative affect on states鈥� financial resources. If education leaders seek waivers under this part of IDEA, DeVos鈥� decision about whether to grant them would be very closely scrutinized.
In 2018, the Education Department 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 . 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 鈥渇ree appropriate public education鈥� 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.
鈥淚 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,鈥� Jones said. 鈥淎nd that鈥檚 hard for everyone. It鈥檚 not going to be perfect.鈥�
She added that she was quite concerned about Senate bill language that could lead to limited waivers from IDEA, saying, 鈥淲e鈥檙e talking about waiving people鈥檚 rights. These are rights that are in place because of the history of discrimination.鈥�
鈥楤lanket National Waivers鈥�
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, responded by publicly stating that 鈥渋t would be premature to issue blanket national waivers from core components鈥� 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, 鈥淚t 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,鈥� 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 鈥渘o new waiver authority is necessary鈥� from the special education law. They pointed to districts鈥� efforts to provide a variety of learning opportunities to students while their schools are closed, and added that, 鈥淒istricts must actively plan to ensure that students are afforded all of their rights under federal law.鈥�
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.
鈥淒uring 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,鈥� Heritage said introduced last Thursday. (Again, that bill is the subject of intense negotiations and could look quite different by the time it passes).
鈥榃e Need to Educate All Students鈥�
Over the weekend, the Education Department as millions of students around the country switch to remote learning.
DeVos called it 鈥渆xtremely disappointing鈥� to hear that some schools were not serving all students based on what they understood to be federal requirements.
鈥淣othing 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,鈥� DeVos said in a statement.
Photo: U.S. Secretary of Education Betsy DeVos on Capitol Hill earlier this year. -- Tom Williams/CQ Roll Call via AP Images