Can the Education Department Place Conditions on NCLB Waivers?

This past week, the Department of Education announced it would allow states to obtain waivers under the No Child Left Behind Act, but “would set a “high bar on flexibility.”. (HT: Neal McCluskey) According to the announcement:

states can get relief from provisions of the Elementary and Secondary Education Act—or No Child Left Behind (NCLB)—in exchange for serious state-led efforts to close achievement gaps, promote rigorous accountability, and ensure that all students are on track to graduate college- and career-ready.

Specifically, according this fact sheet, a State may receive flexibility if it develops a “rigorous and comprehensive plan” to address “three critical areas” the Department of Education believes will “improve educational outcomes for all students, close achievement gaps and increase equity, and improve the quality of instruction.” Encouraging school districts to emphasize these three “critical areas” may or may not be a good idea, but it is highly problematic if (as it appears) the Department of Education is imposing these conditions without statutory authorization.

The NCLB Act allows for waivers of statutory and regulatory requirements placed on state recipients of federal education funds in Section 9401.  This provision identifies things a state must do to be eligible for a waiver, including showings a state must make, but it does not impose any of the conditions detailed in the Department of Education’s announcement. For example, Section 9401 requires a state to explain how the waiver will enable the state to ” increase the quality of instruction for students” and “improve the academic achievement of students,” but the Department of Education’s new requirements seem to go much farther than this. Moreover, nothing in Section 9401 appears to authorize the Secretary of Education from setting additional conditions on waiver requests.  So has the Department of Education over-stepped its bounds? It has before.

In Virginia Department of Education v. Riley (4th Cir. 1997), an en banc panel of the U.S. Court of Appeals for the Fourth Circuit held that the Department of Education could not impose conditions on the receipt of federal funds under the Individuals with Disabilities Education Act (“IDEA”) beyond those expressly identified or authorized in the statute itself. According to the court, “Language which, at best, only implicitly conditions the receipt of federal funding on the fulfillment of certain conditions is insufficient to impose on the state the condition sought.” Since, the court found, “at most” the statute “only implicitly” conditioned state receipt of funds on additional requirements, it could not be imposed on a non-consenting state. The court emphasized that this clear-statement rule was particularly important in an area, such as education, that is the traditional province of the states.

Is the Department of Education repeating the mistake it made in Riley? It appears that way to me, but some caveats are in order. First, it is possible that the Department of Education could defend these conditions as an explication or elaboration of the waiver requirements in the statute. I think this is a stretch given the actual statutory language, particularly in light of Riley, but it’s possible. Second, a state would probably have to seek a waiver without fulfilling all of the new requirements and get denied before it could challenge the new conditions in court. This makes a challenge less likely — and certainly a ways off. Moreover, the Department of Education could try and deflect any legal challenge by denying that it has formally adopted these conditions as actual requirements and not basing any future waiver denial on a state’s failure to meet the new conditions. Finally, I should note that I relied upon the provision identified by the Department of Education in explaining the policy, but I may have over-looked some other provision in NCLB that could be cited as authority for this waiver requirement.

UPDATE: I accidentally published a horribly garbled version of this post. I apologize and it has been fixed.