Even more states request waivers from No Child Left Behind: Are there alternatives?

Three more states have applied for waivers from federal education guidelines: Pennsylvania, Wyoming, and Texas. Add them to the 34 states (and the District of Columbia) that have obtained waivers and 10 other pending requests, plus the local California school districts that recently applied. As noted by Michele McNeil at Education Week, this “leaves just three states that are sitting out the process altogether: Montana, Nebraska, and Vermont (which withdrew its request).”

All of these waivers, in my view, confirm the view that states need to have a stronger voice in setting education policy because, even though the federal government has long been involved in setting education policies, No Child Left Behind obviously took that a step further than states have been able to manage. I think that waivers are probably the best options for states right now, until Congress gets its act together enough to reauthorize No Child Left Behind (not to mention pass a budget). Apparently most states agree. But going forward, I think that the Department of Education should be given even more discretion to consult with states in setting education policy, and new mechanisms other than just waivers should be allowed:

It is clear that NCLB needs to be reformed. The federal government is often unresponsive to state concerns, so the states have resorted to lowering their standards to comply with the law. Congress has been exceedingly slow to respond to the evidence that some parts of NCLB are not working, despite the fact that there remain many questions about how the law should balance the state and federal roles in setting education policy.
Emerging theories of federalism are helpful in the task of re-imagining NCLB and should inform Congress in the reauthorization. These theories support a strong federal role in education. But they also promote greater empowerment of state governments, allowing coordination and competition between both levels of government, for the sake of the nation’s education. With this theoretical underpinning, the role of Congress is to look for ways to promote federal and state polyphony in setting education law.
The best way to achieve this balance—to maintain federal control and increase the voice of the states—is to delegate more responsibility to federal agencies, while enacting special mechanisms meant to increase the voice of the states. Congress should allow federal agencies to set many of the specifics of NCLB’s reauthorization, while also allowing for easier judicial review for state challenges to agency decisions, special notice-and-comment procedures for states, and procedures for encouraging state experimentation. Using agencies and these mechanisms, Congress can ensure that the next reauthorization of NCLB remains flexible enough to address ongoing concerns and promotes the empowerment of states. Future scholarship and research should continue to explore additional ways Congress can use administrative law to improve federal and state interaction in setting education policy and beyond.
Benton Martin, An Increased Role for the Department of Education in Addressing Federalism Concerns, 2012 BYU Educ. & L.J. 79, 109-10 (2012).

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