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New CRS Report Raises Concerns about Education Secretary’s Recent Waiver Proposal

A new report from the independent Congressional Research Service (CRS) raises concerns about the Secretary of Education’s recent proposal to grant conditional waivers of Elementary and Secondary Education Act (ESEA) requirements in exchange for reforms not authorized by Congress.

The CRS analysis confirms the Secretary’s authority to waive statutory requirements under ESEA; however, the report warns of potential legal limits and challenges to the Secretary’s proposal to grant conditional waivers. The report states, “If the Secretary did, as a condition of granting a waiver, require a grantee to take another action not currently required under the ESEA, the likelihood of a successful legal challenge might increase, particularly if [the department] failed to sufficiently justify its rationale for imposing such conditions. Under such circumstances, a reviewing court could deem the conditional waiver to be arbitrary and capricious or in excess of the agency’s statutory authority.”

On June 23, Chairman John Kline (R-MN) and Subcommittee on Early Childhood, Elementary, and Secondary Education Chairman Duncan Hunter (R-CA) sent a letter to Secretary Arne Duncan asking for more information about the Department of Education’s recent proposal to grant conditional waivers to states and schools. In the letter, Kline and Hunter state, “We strongly believe any initiative that could exacerbate the frustration and uncertainty facing schools is the wrong direction for our nation’s education system.”

Despite a July 1 deadline, Kline and Hunter have not yet received a response from the Secretary.  The CRS report underscores the urgent need for the Secretary to fully explain his conditional waiver proposal and offer the legal justification for his plan.

A copy of the CRS analysis can be found here.


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