Secretarial Waiver Authority Under the ESEA and CARES Act
April 23, 2020
Secretarial Waiver Authority Under the ESEA and CARES Act
On March 27, 2020, the Coronavirus Aid, Relief, and
SEA, LEA, or Indian tribe, to grant waivers of various
Economic Security (CARES) Act (P.L. 116-136) was
statutory or regulatory provisions if she determines that
signed into law. The law includes new waiver authority for
such a waiver is necessary and appropriate due to the
the Secretary of Education (the Secretary), in addition to the
coronavirus emergency determined to exist by the President
waiver authority the Secretary already has under the
under Section 501(b) of the Robert T. Stafford Disaster
Elementary and Secondary Education Act (ESEA). Among
Relief and Emergency Assistance Act (hereinafter referred
other things, the new waiver authority permits the Secretary
to as the coronavirus emergency).
to waive educational accountability requirements using a
streamlined process. After a brief discussion of the
Streamlined Waivers
Secretary’s waiver authority under the ESEA, this In Focus
The Secretary is required to create an expedited application
discusses the waiver authority provided to the Secretary in
process for SEAs (including the Bureau of Indian Education
the CARES Act.
[BIE]) and Indian tribes to request a waiver of any statutory
or regulatory requirement for an SEA related to educational
ESEA Waiver Authority
assessments, accountability, and reporting requirements
Under Section 8401 of the ESEA, the Secretary is
pertaining to assessments and accountability under Section
authorized to waive most statutory and regulatory
1111 of the ESEA or Section 421(b) of the General
requirements associated with any program authorized by
Education Provisions Act (GEPA) (which concerns the
the ESEA, provided that certain requirements are met, if
extension of the period available for the obligation and
specifically requested by a state educational agency (SEA)
expenditure of appropriated funds for most programs
or Indian tribe. Local educational agencies (LEAs) may
administered by the U.S. Department of Education (ED)
submit waiver requests through their SEA. The SEA may
and is commonly referred to as the Tydings Amendment).
then submit the request to the Secretary if it approves the
The Secretary may grant such waivers using the streamlined
waiver. Schools must submit their waiver requests to their
application process if she determines that the waivers are
LEA, which in turn submits those requests to the SEA.
necessary and appropriate due to the coronavirus
emergency.
An entity requesting a waiver must submit a waiver request
with a plan that, among other requirements, identifies the
More specifically, the expedited waiver process may be
federal program affected by the requested waiver, describes
applied to waiver requests related to the following
which federal statutory and regulatory requirements are to
provisions of Section 1111 of the ESEA:
be waived, and describes how the waiving of such
requirements will advance student achievement. The
educational assessment requirements under (b)(2) and
Secretary must issue an initial approval or disapproval of a
assessment requirements for recently arrived English
waiver request not more than 120 days after it is submitted.
learners under (b)(3);
The Secretary may grant a waiver for up to four years and
statewide educational accountability systems, including
may extend it under certain circumstances.
long-term goals, indicators, annual meaningful
differentiation, and identification of schools under
The Secretary is prohibited from using authority available
(c)(4);
under Section 8401 to waive statutory or regulatory
requirements related to, for example, the allocation or
requirements related to additional targeted support and
distribution of funds to states, LEAs, Indian tribes, and
improvement under (d)(2)(C) and (D);
other recipients of funds; supplement, not supplant
requirements; and applicable civil rights requirements. The
reporting requirements for various data included in
Secretary is prohibited from waiving maintenance of effort
annual state report cards under (h)(1)(C), including a
description of the state’s accountability system (i),
(MOE) requirements under Section 8401, but has the
authority to waive MOE requirements for LEAs under
student performance on academic assessments (ii),
Sections 1118(a) and 8521(c) and for states under Section
student performance on the other academic indicator
1125A(e)(3).
required for elementary schools and secondary schools
that are not high schools (iii)(I), number and percentage
National Emergency Educational
of English learners achieving English language
Waivers
proficiency (iv), student performance on the state’s
The COVID-19 Pandemic Education Relief Act of 2020,
indicator(s) of school quality or student success (v),
included as Title III-B of the CARES Act, provides for
student progress toward meeting the long-term and
interim goals included in the state’s accountability
waivers primarily related to the ESEA. Section 3511 of the
CARES Act allows the Secretary, upon request from an
system (vi), the percentage of students assessed and not
assessed (vii), and the number and percentage of
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Secretarial Waiver Authority Under the ESEA and CARES Act
students with the most significant cognitive disabilities
Any SEA, LEA, or Indian tribe requesting a waiver of the
who take an alternate assessment (xi); and
aforementioned statutory and regulatory provisions must
provide the public and all LEAs in the state with notice of,
any provisions related to annual LEA report cards under
and the opportunity to comment on, the waiver request by
(h)(1)(2)(C)(2) that were waived for state report cards,
posting information about it and the process for
how student performance on assessments in the LEA
commenting on the state website. (This requirement does
compared to student performance on assessments in the
not apply to the streamlined waivers.)
overall state on assessments under (h)(1)(2)(C)(2)(i),
and how student performance on assessments in each
The Secretary is required to approve or disapprove a waiver
school compared to student performance on assessments
request submitted under this second process within 30 days
in the overall LEA under (h)(1)(2)(C)(2)(ii).
after the date of submission. The Secretary may only
Any school that is located in a state that receives a waiver
disapprove the waiver request if the waiver fails to meet the
of any of the aforementioned Section 1111 provisions and
requirements of Section 3511, the waiver is not permitted
is identified for comprehensive support and improvement,
under the aforementioned list of waivers, or the description
targeted support and improvement, or additional targeted
of how the emergency related to the coronavirus restricts
support and improvement for the 2019-2020 school year
the ability to comply with such statutory or regulatory
must maintain that identification status for the 2020-2021
requirements is insufficient for the Secretary to determine
school year and continue to receive supports and
that the waiver is necessary or appropriate.
interventions that are consistent with the school’s support
and improvement plan in the 2020-2021 school year.
General Waiver Provisions
Any waivers issued by the Secretary based on the
Additional Waivers Available
provisions of the CARES Act shall be implemented, as
For an SEA (including the BIE), LEA (including a BIE-
applicable, for all public schools, including public charter
funded school), or Indian tribe that receives funding under
schools, located within the boundaries of the waiver
the ESEA and requests a waiver using a second waiver
recipient. With respect to public charter schools, the
process described below, the Secretary may waive statutory
waivers must also be implemented in accordance with state
and regulatory provisions of the ESEA related to
charter school law, and such implementation must be
overseen in accordance with state charter school law.
the percentage of low-income students in a school
required to operate a schoolwide program under Title I-
Any waiver approved by the Secretary under Section 3511
A (§§1114(a) and 8521);
may be for a period not to exceed the 2019-2020 academic
year, except to carry out the full implementation of any
maintenance of effort requirements that apply to LEAs
MOE waivers granted during the 2019-2020 academic year.
(§§1118(a) and 8521);
The Secretary is prohibited from waiving any statutory or
requirements related to the carry-over of Title I-A funds
regulatory provision related to civil rights.
from one fiscal year to the next (§1127);
Not later than seven days after granting a waiver under
the needs assessment required under Title IV-A for
Section 3511, the Secretary must notify Congress about it.
LEAs receiving $30,000 or more under the Student
Not later than 30 days after granting a waiver under Section
Support and Academic Enrichment (SSAE) grant
3511, the Secretary must publish a notice of her decision in
program (§4106(d));
the Federal Register and on ED’s website.
requirements to use funds for a well-rounded education,
safe and healthy students, and technology under the
In addition, not later than 30 days after the enactment of the
SSAE program for LEAs receiving grants of $30,000 or
CARES Act, the Secretary is required to prepare and submit
more (§4106(e)(2)(C), (D), and (E));
a report to Congress on any additional waivers under the
Individuals with Disabilities Education Act (IDEA), ESEA,
the limit on the percentage of funds that may be used to
and Carl D. Perkins Career and Technical Education Act of
purchase technology infrastructure under the SSAE
2006 that she believes are necessary to be enacted into law
program (§4109(b)); and
to provide limited flexibility to SEAs and LEAs to meet the
the definition of professional development that applies
needs of students during the coronavirus emergency.
to the ESEA (§8101(42)).
Obtaining Waivers
Any SEA, LEA, or Indian tribe requesting a waiver of any
ED has a webpage focused on the department’s coronavirus
of the aforementioned statutory or regulatory provisions
response that includes applications to obtain waivers of
may submit a waiver request that (1) identifies the federal
various elementary and secondary federal education
programs affected by the requested waiver; (2) describes
provisions. These are in addition to the provisions for
the federal statutory or regulatory requirements that would
obtaining a waiver included in Section 8401 of the ESEA.
be waived; (3) describes how the emergency related to the
coronavirus restricts the ability of the state, SEA, LEA,
Rebecca R. Skinner, Specialist in Education Policy
Indian tribe, or school to comply with such statutory or
IF11517
regulatory requirements; and (4) provides an assurance that
the SEA, LEA, or Indian tribe will work to mitigate any
negative effects that may occur as a result of the waiver.
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Secretarial Waiver Authority Under the ESEA and CARES Act
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https://crsreports.congress.gov | IF11517 · VERSION 1 · NEW