Abstract
This article analyzes how the Obama administration used executive power to grant waivers from federal education policies and assesses whether they used this power differently than previous administrations and in other sectors (e.g., health or welfare). The executive use of waivers to shape state policy is not a new trend. However, we find that recent education waivers differ in purpose and specificity from past education waivers, as well as waivers in other social policy arenas, and that the Obama administration is using this executive power to further its policy objectives in ways that often circumvent congressional intent. As the executive branch continues to utilize waivers as a policy lever, this research has important implications for the future of federal involvement in educational policy and provides critical background for Congress’s reaction to waivers in the recently reauthorized Elementary and Secondary Education Act.
Waivers refer to exemptions to specific federal rules and regulations granted to states by executive branch agencies. Authority to grant waivers comes from Congress, which has delegated power to the executive branch to adjust certain components of laws in recognition that states face implementation challenges that may require flexibility from the original legislation (Thompson & Gusmano, 2014). Executive federalism refers to the relationship between national, state, and local executives to adjust and negotiate the specifics of legislation (Gais & Fossett, 2005; Thompson, 2013; Walker, 2000).
At least since the Reagan administration, however, the executive branch has used waivers not just to ease policy implementation but strategically to help states, for example, experiment with new ways to deliver public goods and services or align their policies with the executive agenda (Gais & Fossett, 2005). A fundamental component of waivers in many policy areas in earlier years was negotiations between high-ranking officials across levels of government (Thompson, 2013; Thompson & Gusmano, 2014). States have taken advantage of flexibility negotiated in waiver agreements with the executive branch to initiate major changes in such areas as economic development, environmental policy, health, and welfare reform (Osborne, 1990).
With the expansion of the federal government’s use of waivers across policy areas have come charges that the executive branch increasingly is using them to direct policy away from Congress’s original intent. Scholars refer to “small” and “big” waivers to clarify the difference between use of waivers to ease implementation and use of waivers to provide new policy direction. That is, federal agencies use “small waivers” to allow states and local governments flexibility in implementing a program, experimenting with new delivery methods, or other small changes that are unique to their individual contexts but within the scope of the original intent of the law (Barron & Rakoff, 2013). In contrast, “big waivers” empower a federal agency to substantially revise parts of a law or condition grant of a waiver on an applicant’s satisfying requirements not otherwise required by the statute (Barron & Rakoff, 2013). These new big waivers move well beyond allowing for state-by-state idiosyncrasies in the implementation of federal policy toward a direction in which the executive branch has significantly shaped or altered policy without changes in statutes or Congressional approval. Use of big waivers is part of a more general shift toward what is termed an administrative presidency in the United States, a shift in power relations from the legislative to executive branch through the utilization of executive discretion and tools (e.g., orders, directives) to impact not only federal but state policy as well without relying on changes to law or specific Congressional authorization (Cooper, 2002; Durant, 1992, 2009; Howell, 2013; Thompson & Gusmano, 2014).
In recent years, controversy over the use of big waivers has been particularly acute in the area of education. In response to Congressional inaction on reauthorization of the Elementary and Secondary Education Act (ESEA)—or the No Child Left Behind (NCLB) Act—the Obama administration utilized waivers from NCLB to advance policy priorities not specified in the legislation, such as state implementation of teacher evaluation systems, which arguably had important impacts on state education policy (Polikoff, McEachin, Wrabel, & Duque, 2014). Congressional backlash against the use of waivers to push states to implement such unspecified policy changes—including ones unpopular with Republicans in Congress, such as adoption of the Common Core State Standards—helped drive passage of the Every Student Succeeds Act (ESSA) with provisions to limit aspects of executive branch discretion in its implementation (McGuinn, in press).
Empirical work has analyzed the use of executive waivers within various policy areas (e.g., Barron & Rakoff, 2013; Gais & Fossett, 2005; Manna, 2006; Thompson & Gusmano, 2014; Wong, 2015). However, no work has explored the larger strategic use of executive waivers by the federal government or the Obama administration specifically. The purpose of this article is to analyze how the Obama administration used its power to grant waivers in educational policy, place its waiver usage in the broader context of waiver usage in other policy areas, and assess the implications of strategic waiver use for our understanding of federalism. In placing waiver usage in education in context, we make comparisons to waivers in health and welfare, two social policy domains in which the Obama administration also increased waiver utilization (Thompson & Burke, 2009; Wexler, 2011). For a complete list of data, see Figure A1 in the appendix. This comparison is useful because it helps evaluate the larger political strategy of the executive use of waivers. We also place education waivers in historical context, comparing the Obama administration’s approach to social policy waivers to the approaches undertaken by previous administrations.
We focus our arguments by asking three main questions:
Research Question 1: What are the similarities and differences between ESEA waivers and waivers used in federal health and welfare policy?
Research Question 2: How has the use of waivers in education by the federal government changed over time?
Research Question 3: What are the implications for the use of waivers by the federal government for the future of educational policy?
Our answers to these questions inform a new understanding of how education policymakers at different levels of government interact in a federalist system in the early 21st century. Research has documented that the implementation of national education policy across states necessarily varies for a number of important reasons (Cohen & Moffitt, 2009), including variation in state needs (Grissom & Herrington, 2012), demographics (Grodzins, 1960), and systemic differences at the state level (Manna, 2007). In response to this need for variation, federalism in education has been marked by negotiation between the U.S. Department of Education (USDOE) and the various state departments of education (Sunderman & Kim, 2007; Wong, 2008). Similarly, in health care, federalism has traditionally been facilitated through state-level experimentation in the provisions of services and through the Affordable Care Act (ACA). We argue that how the Obama administration has used waivers in education, health care, and welfare is the most recent extension of this evolving relationship between national and state policymakers and the increased role of the executive branch in shaping policy apart from congressional action.
What Are the Similarities and Differences Between ESEA Waivers and Waivers Used in Other Areas of Federal Policy?
The health care, welfare, and education policy areas share a number of commonalities. 1 Clearly, these areas have all addressed the provision of public goods and services broadly defined. While the federal government originally was not tasked specifically with primary oversight in these areas, the federal government has expanded its role in all three over time (Shelly, 2013; Thompson, 2013). Additionally, policy from the federal government in these areas has tended to focus on issues of equity, often targeting subsections of the populations (i.e., students in poverty or the elderly). Lastly, there has been significant political resistance to the federal government expanding the scope of its work in these three areas.
Health Care
In 1965, the federal government substantially expanded its role in health care policy as part of President Johnson’s Great Society (Falls, 2010). Specifically, the federal government provided money, transferred through state governments, to individuals living at or below the poverty level. Medicaid is the main program and has been funded by federal and state dollars (Falls, 2010). Medicaid 2 has allowed states to customize implementation of federal policy, and the use of waivers has expanded in recent years (Thompson & Burke, 2009). For example, Section 1115 of the 1991 Social Security Act allowed states to explore limited research projects to meet the unique demands of their state demographics—similar to the use of waivers during the implementation of NCLB—rather than acting in lieu of Congressional reauthorization (Williams, 1994). Critics of 1115 waivers argued they alter the Aid to Families with Dependent Children (AFDC) 3 program in ways that did not meet the intent the law (Williams, 1994). The Obama administration also relied heavily on a strategy of waivers as part of the Affordable Care Act (Thompson & Gusmano, 2014). The federal government provided two options to states: apply for grants to establish their own exchanges or have the federal bureaucracy provide exchanges instead. Executive waivers were used to persuade states to launch Medicaid expansions by allowing states to deviate from some of the requirements of the ACA (Thompson & Gusmano, 2014). Waivers were also used to allow and incentivize states to implement ACA prior to 2014 by providing federal matching dollars for the increased cost of the exchanges.
Following the Supreme Court decision related to ACA, the Republican Governors Association pushed for information about the possibility of partially expanding Medicaid. In December of 2012, the Centers for Medicare and Medicaid Services (CMS) announced that it would not approve any partial measures (Milliman, 2014). In total, CMS has approved waivers in two main areas: demonstration waivers and health care delivery and payment systems (Thompson & Burke, 2009). The former waiver, enacted in Section 1115 of the Social Security Act, has provided the executive branch the authority to let states experiment with and evaluate program delivery (Thompson & Burke, 2009). This latter type of waiver was passed as the 1915 provision of the Social Security Act (Shelly, 2013). The waivers under the ACA were to be cost neutral and provided states with expanded flexibility in terms of setting up state-level exchanges. The waiver provision of the ACA—or the “waiver for state innovation”—allowed states to propose health care insurance exchanges and minimum coverage of acceptable plans (Barron & Rakoff, 2013). Medicaid waivers have shifted dramatically under the Obama administration from an initial policy of working to increase the research on Medicaid waivers to a policy that intended to incentivize state participation in the expansion of Medicaid.
Welfare
In 1994, Congress authorized the use of federal waivers for welfare programs with passage of Public Law 103-432 (PL 103-432, 1994) in an effort to promote new, innovative, and effective welfare practices by granting states flexibility in the use of federal funds for alternative services (U.S. Department of Health and Human Services [DHHS], 2005). These waivers changed how funds under Title IV-E of the Social Security Act were used for foster care, which provides partial reimbursements for states. Prior to the waiver provision, the use of these funds was limited to foster care (U.S. DHHS, 2005). The waivers allowed states flexibility in the use of federal funds to preserve families, protect families from abuse and neglect, and promote permanency (U.S. DHHS, 2005). The DHHS was granted authority to approve up to 10 welfare waiver demonstration projects, and each was typically approved for five years (U.S. DHHS, 2005).
Welfare policies have seen a similar expansion in the use of waivers. The Adoption and Safe Families Act of 1997 expanded waiver use to allow the secretary of DHHS to approve up to 10 new demonstrations a year. In 2010, Congress renewed the authority of DHHS to issue waivers from rules that restrict the use of some funds under the Social Security Act (Wexler, 2011). The waivers specifically target the Title IV-E money that historically has been restricted only to foster care. Under the waivers, states may also use these funds for prevention, family preservation, and other services (Wexler, 2011). However, states needed to continue periodic foster care reviews specifying safeguards for children during out-of-home placement and the use of permanency hearings for children in state custody (U.S. DHHS, 2005). In sum, the IV-E waivers have been used in an effort to create new knowledge to inform future changes in policy and practice in welfare administration while continuing to hold states accountable for the main provisions of the program.
On the surface, waivers in education, health, and welfare share many commonalities. The federal government has set guidelines for states wanting to customize a given policy or program and created a process for waiver approval. For each policy area, Congress established some degree of authority for the executive department (i.e., U.S. Department of Education, U.S. DHHS) to negotiate with individual states. In this section, we compare the purpose and specificity of waivers in these two policy areas to education.
Purpose of the Waivers
The various waiver programs differed in the initial purpose. For Medicaid waivers, Congress allowed for limited research to experiment with new ways of delivering the program. Similarly, welfare waivers were established to allow states to explore alternatives to child foster care, with the hope of bettering future policy and practice. Although waiver use in education, similar to health care and welfare, started “small” (cf. Margaret Spellings’s growth model pilot, as discussed in Weiss & May, 2012), the tone surrounding waivers was fundamentally different. Education waivers were created as a compromise to mitigate states’ complaints of the pending federal deadlines under NCLB compared to conversations about experimentation and furthering knowledge with health care and welfare waivers. In his letter to Chief State School Officers, Secretary Duncan wrote that the impetus for ESEA waivers was due to innovations and reforms that were not anticipated when NCLB was passed, to correct for states setting low standards, and that NCLB did little to elevate the teaching profession and recognize the most effective teachers (Duncan, 2011). The ESEA waivers were an effort to “update” NCLB without formal legislation, and the purpose of ESEA waivers was to provide states with the opportunity to fundamentally alter their accountability systems. Technically, the ESEA waivers were voluntary, but ubiquitous failure to make Adequate Yearly Progress (AYP) was likely enough of a political threat to force states to submit an ESEA waiver (Wrabel, Saultz, Polikoff, McEachin, & Duque, 2016).
Specificity
ESEA waivers were more prescriptive than waivers in health care and welfare. Initially, states were discouraged to submit ESEA waivers due to a concern that this would hamper accountability (Polikoff et al., 2014). As the 2014 target date for 100% proficiency approached, the executive branch became increasingly interested in the idea of providing states some regulatory flexibility (Wrabel et al., 2016). However, waiver flexibility in education differed from that in health care and welfare because it asked states to follow specific guidelines to obtain a waiver: States had to satisfy four criteria in teacher evaluation, school accountability, academic standards, and reduction in redundant policies and programs. For example, Washington State was denied an ESEA waiver because it did not tie teacher and principal evaluations to state standardized tests. In reply to Washington’s waiver request, Secretary Duncan stated,
One of the commitments that Washington—and every State that received ESEA flexibility—made was to put in place a teacher and principal evaluation and support system that takes into account information on student learning growth based on college and career ready State assessments [italics added]. (Duncan, 2014)
Language linking teacher and principal evaluations to students’ academic achievement was not included in NCLB. The District of Columbia and all 43 states that received NCLB waivers included teacher evaluation reforms (Pennington, 2014). Although a single case, the Washington experience refutes the claim that NCLB waivers were about state flexibility. Secretary Duncan’s decision to not grant Washington a waiver made it clear that although teacher evaluations tied to student achievement were not part of the original NCLB legislation, they were a necessary condition to receive an ESEA waiver (Duncan, 2014).
Conversely, the 1115 and 1915 provisions of the Social Security Act allowed states to explore new ways of delivering services, with the hope of informing future policy, similar to the waivers issued by Secretary Spellings. While the state waivers under ACA required states to either expand Medicaid fully or not at all, it had much fewer mandates about what should be in the proposed waiver. Alternatively, ESEA waivers looked to alter state education policy regarding school performance targets, mandating the connection of teacher evaluations to state test scores, and influencing academic content standards (Polikoff et al., 2014).
How Has the Use of Waivers in Education by the Federal Government Changed Over Time?
Since education is not specifically cited in the U.S. Constitution as a federal responsibility, states have had the authority to create, fund, and govern schools (Grodzins, 1966; Manna, 2007). Traditionally, this authority was informally transferred to localities, which resulted in wide variation in quality, funding, and educational opportunity for students (Cohen & Moffitt, 2009). Since the 1960s, the state and federal governments increased their involvement in educational policy to address concerns regarding inequities in school quality, funding, and the achievement gaps between racial/ethnic groups of students (Sunderman & Kim, 2007). The primary role of the federal government, then, has been to provide resources and establish programs aimed at helping disadvantaged populations of students (Cohen & Moffitt, 2009; Manna & Ryan, 2011).
The Elementary and Secondary Education Act of 1965, albeit small and primarily focused on supplemental programmatic funds for impoverished children, symbolized the expansion of the federal government’s use of funds to direct national educational policy (Cohen & Moffitt, 2009). The political climate during the passage of ESEA in the mid-1960s was not conducive to granting waivers. The focus of federal education policy was limited to funding programs targeted at poor children, something with which states could readily comply. Traditionally, states have had the ability to alter educational policy in ways that made federal waivers unnecessary. However, the publication of A Nation at Risk in 1983 caused the wheels of federal education policy to move away slowly from limited federal funding of education toward federal performance-based accountability in education, implanting its role in shaping education policy. As the federal government changed its role in education slowly over time, the need for states to customize federal educational policies became more important as well.
The administrations of Presidents George H.W. Bush and Bill Clinton gradually accelerated the shift toward greater federal control over education, with voluntary testing of students in specific subjects and grade levels. These efforts to craft a stronger federal role in education set the stage for a dramatically increased federal role under Presidents George W. Bush and Barack Obama (DeBray, 2006; Fusarelli & Fusarelli, 2015).
The initial limited use of waivers in education grew out of the political pushback from state and local officials to the nascent movement by Presidents George H.W. Bush and Clinton to create a greater federal role in education. Congress explicitly granted the executive branch the authority to issue waivers with the Improving America’s Schools Act (IASA) of 1994 (Riddle, 2011). This is not surprising given the political pressure Congress and President Clinton received after passage of IASA, which critics contended was part of a federal effort to nationalize education policy, including standards, curriculum, instructional delivery, testing, and assessment. In a significant departure from previous reauthorizations of ESEA, IASA and NCLB brought the federal government into the core functions of schooling (Sunderman, 2006). Congress and the Clinton administration were willing to grant waivers in response to this perceived overreach of federal authority (Derthick & Rotherham, 2012).
Congress “delegated the authority to waive those residual statutory limitations to the Secretary of Education” (Barron & Rakoff, 2013, p. 298). However, this “flexibility/accountability tradeoff” sent mixed signals to state and local education officials because too much variation or noncompliance with federal regulations could have led to sanctions (Goertz, 2001). Although over 600 waivers were granted by the end of 2008, Wong (2015) asserted that the waivers granted by the Obama administration were more comprehensive in scope than those granted by Presidents Clinton and Bush. During the 2008 presidential campaign, Obama criticized the Bush administration for its lack of flexibility and argued that the federal government was “burdening states with stringent requirements” (Dinan & Gamkhar, 2009, p. 372). Dinan and Gamkhar (2009) asserted that in public addresses after the 2008 election, Obama “signaled a greater attentiveness to federalism principles than was evident during the Bush Administration” (p. 373) and has been far more willing to promote state policy flexibility and discretion in several key areas. Barron and Rakoff (2013) contended that the administration was simply using the waiver authority granted it by Congress and attribute Congress’s delegation of waiver authority to the executive branch to a recognition “of the hazards of saddling public educational systems with an inflexible federal regulatory regime” (p. 298) and to political pushback from state and local officials. The Obama administration’s use of waivers reflected a shift of the role of states in a federal system relative to previous administrations (Dinan & Gamkhar, 2009), although it also reflected a desire to govern through the executive branch.
Both Rod Paige and Margaret Spellings issued waivers in several areas, including modifications to state accountability systems designed to measure student achievement growth, although Paige was much less willing to grant states flexibility in complying with NCLB (Derthick & Rotherham, 2012; Manna, 2006). Upon her appointment in 2004, Secretary Spellings indicated her willingness “to work with states to a greater extent than her predecessor” and adopted a more pragmatic, commonsense approach to implementation (McGuinn, 2005, p. 62). One former assistant secretary of education stated, “Under Secretary Spellings, the USDOE became more flexible in granting waivers” (Personal communication). For example, Spellings granted waivers from several NCLB requirements, including special education assessment rules, subsidized tutoring to individual districts, development of state-specific models to measure Adequate Yearly Progress, state accountability plans, and waivers to districts affected by Hurricane Katrina (Doan, 2008; Sunderman, 2006). 4
One substantive difference between the waivers granted by Secretary Paige and Secretary Spellings was that those granted by Spellings were broader in scope and allowed for experimentation in the implementation of federal policy (Doan, 2008). Sunderman (2006) refers to these as “negotiated changes” or compromises in response to strident opposition from states and pressure from key members of Congress. In many respects, these negotiated changes reflect the limitations of efforts to centralize or more tightly couple education policy within a fragmented federal system of governance (Fusarelli, 2002). However, Wong and Sunderman (2007) asserted that in the process of granting waivers and relief from various components of the law, “NCLB shifted from being one national policy imposed equally on all jurisdictions to one dependent on what each state could negotiate with the federal administration” (p. 345)—a situation grounded perhaps in the reality of the limits of federal policy implementation (Pressman & Wildavsky, 1984) but one that deviated from congressional intent of the legislation.
The 2001 reauthorization of ESEA, the No Child Left Behind Act, required states to test students in reading and mathematics, established proficiency standards, and tracked and reported school-wide progress toward meeting annual performance goals toward an ultimate goal of 100% proficiency for all students by the end of the 2013–14 school year (Shelly, 2012; Sunderman & Kim, 2007; Wong, 2008). States had to use annual measurable objectives (AMOs) as annual interim proficiency targets to ensure schools met the increasing mathematics and English/language arts proficiency goals.
Schools were also accountable for performance disaggregated by numerically significant subgroups based on racial/ethnic, disability, socioeconomic, and English language proficiency status. Schools meeting all of their AMOs were classified as making AYP; thus, missing even one AMO in a year resulted in AYP failure. While there were several alternative methods for making AMOs, some of which were widely used (Polikoff et al., 2014), an increasing number of schools failed to demonstrate AYP.
As the 2014 deadline approached, state and federal policymakers realized 100% proficiency was not attainable (Duncan, 2011). This realization, combined with Congressional inaction to reauthorize ESEA, catalyzed the need for policy reform (Polikoff et al., 2014). As a result, policymakers in the U.S. DOE looked for ways to provide some flexibility for states to move away from the AYP system that would most assuredly lead to an overwhelming majority of schools in every state failing to meet the 2014 proficiency target. 5 The U.S. DOE recognized that parts of the law were ineffective and became barriers to state and local implementation of innovative education reforms (U.S. DOE, 2011). In September 2011, Secretary Duncan offered states the opportunity to request flexibility from certain NCLB mandates. Once granted, waivers provided states flexibility from many provisions of the original NCLB mandates in exchange for implementing rigorous and comprehensive plans to reduce achievement gaps, improve instruction, advance educational outcomes for all students, and implement educator evaluation systems. Forty-three states, the District of Columbia, and Puerto Rico were granted NCLB waivers (U.S. DOE, 2015).
The U.S. DOE identified four key principles to improve academic achievement and instruction: adoption and implementation of college- and career-ready academic expectations for all students; differentiated recognition, accountability, and support; support for effective instruction and leadership; and reduction of duplication and unnecessary burden (U.S. DOE, 2011). While states had to implement many of these requirements under NCLB, the U.S. DOE waivers included stark departures from the original intent of the law’s standards, accountability, and teacher policy provisions. For example, to meet the new college- and career-ready expectations, states had to implement the Common Core State Standards (CCSS) and assessments or demonstrate their standards and assessments were of similar rigor.
Although similar in spirit, the differentiated accountability provisions allowed states to depart significantly from the proficiency-based NCLB system. Under the principle of differentiated recognition, accountability, and support, states established their new plans for assessing schools and methods by which they identified those schools not making substantial improvement or progress. The flexibility provisions gave states control over the subject areas used for accountability calculations, the design of their AMOs, the student subgroup determination, and the rewards and sanctions used for targeted groups of schools. As long as states included a few key components, such as student growth measures and tests in at least math and reading, they had the flexibility to depart from the rigidities of NCLB. 6
Despite a precedent for granting waivers to federal laws pertaining to education, the Obama administration utilized waivers to an unprecedented degree. Although the waivers granted under Paige and Spellings reflected the willingness of federal officials to listen to and work with state officials, their waivers did not deviate from the original intent of the law (Manna, 2006). However, Congress’s failure to reauthorize ESEA and fix perceived shortcomings of NCLB created a leadership vacuum, which presented the Obama administration with a strategic opportunity to address these policy issues (Pickerill & Bowling, 2014; Wong, 2015). The administration has justified its actions on the grounds that (a) local and state educational leaders have repeatedly asked for modifications in NCLB’s shortcomings and (b) Congress’s lack of action to reauthorize ESEA left them little choice but to act through the waiver process. Officials at the U.S. DOE assert that, “This process is essentially a bridge from the broken system we have today to the much more effective, thoughtful, and responsible approach of tomorrow” and that “America’s educators have worked under a flawed law for 10 years and it is increasingly becoming a barrier to State and local reforms” (U.S. DOE, 2011, p. 1). A survey of the perspectives of state policymakers on waivers granted by the federal government revealed that (a) states believe the waivers address several problems of NCLB, particularly accountability requirements; (b) waivers have shaped state policies and have accelerated some reforms, particularly plans for new teacher evaluation systems; and (c) “Many state officials are concerned about what will happen to the programs and policies in their waiver plans if ESEA is reauthorized”—that reauthorization will undo all the hard work put into changing the system to comply with the ESEA waivers (Center on Education Policy, 2013, p. 2).
The nature of relief granted by the Obama administration appears to fall under the “big waiver” umbrella, effectively using federal power to shape education policy far beyond minor adjustments or modifications to the original legislation. Unlike previous waivers, the waivers issued by the Obama administration were less of a response to states’ challenges or experimentation with the delivery of small mandates within the original legislation and instead provided sweeping changes to many aspects of the law from content standards and assessments to designing new teacher accountability policies (Wong, 2015). For example, under the original NCLB legislation, states had to intervene in any school that did not meet its annual performance target in two consecutive years. However, the U.S. DOE waiver guidelines only required states to identify the bottom 5% of schools in total performance and another 10% with large achievement gaps for intervention (U.S. DOE, 2011), similar to the Harkin-Enzi ESEA reauthorization proposal that never made it out of Congress (McEachin & Polikoff, 2012). Although the original goal of 100% proficient under NCLB was unrealistic and some of the state waiver applications improve on the shortcomings of NCLB (Polikoff et al., 2014), the waiver guidelines subvert the original intent of NCLB and sit in stark contrast to past use of federal education waivers. 7 The combination of an unrealistic goal of 100% proficiency by 2014, state and local opposition to shortcomings in NCLB, congressional inaction, and an administration interested in policy reforms in teacher evaluations, assessments, curricula, and accountability systems has led to increased use of executive power in education policy and the adoption of big waivers in education as a governing strategy. Additionally, ESEA waivers leveraged states to alter teacher evaluation policy, assessments, standards, and state accountability systems more broadly (Polikoff et al., 2014). While NCLB required states to test students in Grades 3 through 8 annually in reading and mathematics, it did not mandate state policies in the aforementioned areas included in the ESEA waivers.
While federal education waivers have increased over the past 30 years, our argument is that the Obama administration has changed the function of the waivers to shift policy in very specific ways. While previous administrations looked to allow flexibility under ESEA, Secretary Duncan and the U.S. DOE issued very specific parameters for states to alter policy in areas that were not specifically mentioned in NCLB (i.e., teacher evaluations).
What Are the Implications for the Use of Waivers by the Federal Government for the Future of Education Policy?
The U.S. DOE has had increased discretion in shaping education policy under the leadership of Secretary of Education Arne Duncan. Regardless of one’s stance on the U.S. DOE’s waiver guidelines, the Obama administration changed educational policy quickly in ways that fit its reform priorities (e.g., teacher evaluations, assessments, curricula, and accountability systems) and set a strong precedent for the future use of big waivers. As one former assistant secretary of education stated,
For the Obama administration, my sense is that they wanted to be viewed as more responsive to state requests than the Bush administration and acted accordingly. It is inconceivable to me that they would not use the grant waiver process to advance administration interests, as well. While they are not unique in doing this, maybe they were just more aggressive. (Personal communication)
However, this may have led many in Congress to rethink the role of waivers in education. Sunderman (2006), for example, asserted that the widespread granting of waivers led to a loss of common meaning among key provisions of NCLB and too much variation in federally subsidized state education policy systems. It also weakened the ability of the federal government to “put pressure on lower level performance units—schools, districts, and states—to take the central performance demands seriously” (Mintrop & Sunderman, 2009, p. 354) by allowing substantive deviations from the legislation.
President Obama signed the ESSA on December 10, 2015, which replaced NCLB as the most recent reauthorization of the ESEA. The new law kept many of NCLB’s accountability requirements (Senate Bill 1117, 2015). However, ESSA sharply reduces the role of the executive branch, specifically limiting the ability of the secretary of education to grant waivers requiring states to adopt specific academic standards, assessments, accountability systems, or teacher evaluation systems (Rotherham, 2015; Senate Bill 1117, 2015). Of note, all four of these components were included in previous waivers granted under Secretary Duncan. On the one hand, ESSA continues many of the policies included in ESEA waivers. On the other hand, ESSA severely limits the power of the executive branch to use waivers to dictate state and local education policy. ESSA may be consistent with current priorities of the administration (with the exception of teacher evaluations based on student achievement), but it will severely restrict the next administration’s ability to aggressively encourage states to adopt preferred reforms.
We expect ESEA waivers to have at least one lasting impact on federal education policy. The waivers allowed for variation among state accountability systems, building on the variation allowed under NCLB (i.e., state control over proficiency cutoffs). While we anticipate the federal government will continue to provide oversight over the use of federal funds, ESSA provides similar customization of states’ accountability systems (Senate Bill 1117, 2015). Congress continues the trend under ESEA waivers to create more diversity in accountability systems across states, although the secretary of education no longer has the ability to supersede state plans.
Lastly, we anticipate that future nominations and subsequent confirmations of the secretary of education may have even higher stakes and publicity. The use of competitive grants and ESEA waivers fundamentally changed the role of the secretary of education. It is likely that future secretary of education nominees will have to reassure Congress of the executive branch’s limited role in directing federal education policy. Further, future secretary of education nominees will need to articulate the balance among allowing states flexibility, maintaining the various federal laws, and dictating new policy from the executive branch.
Conclusion
Educational policymakers and practitioners should take note of how executive waivers have shifted power from the legislative to the executive branch. The evidence from ESEA waivers provides additional support for executive federalism and the administrative presidency as well as a move to the use of big waivers. Osborne (1990) argued that education, community development, health care, and welfare reforms are fundamentally local tasks with varying contexts and conditions that necessitate administrative flexibility from the federal government. Citing Justice Brandeis’s dissenting opinion in New State Ice Co. v. Liebmann (1932), “There must be power in the States and the Nation to remould, through experimentation, our economic practices and institutions to meet changing social and economic needs. . . . Denial of the right to experiment may be fraught with serious consequences” (p. vii). Others have questioned “the feasibility of managing educational activities in 50 states, each with its own context” (Sunderman, 2006, p. 14).
While some may laud the departure from a one-size-fits-all federal policy, we note that a system that bypasses Congress and relies on negotiations between high-ranking officials at the state and federal levels may be problematic and has significant ramifications for the balance of power between the executive and legislative branches of government. We recommend that educational policymakers shape waivers using welfare as an example. This would allow states to innovate and provide evidence for future policy and would require research on the effectiveness of these new strategies—similar to NCLB waivers granted by Secretary Spellings for the Growth Model Pilot (cf. Weiss & May, 2012). We recognize that waivers are important policy tools that permit policymakers to customize federal policy to state context, but the Obama administration’s use of waivers in educational policy went too far in allowing the executive branch to dictate major policy shifts and deviated too much from No Child Left Behind, in effect, legislating through the executive branch.