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April 23, 2020
Secretarial Waiver Authority Under the ESEA and CARES Act
On March 27, 2020, the Coronavirus Aid, Relief, and
Economic Security (CARES) Act (P.L. 116-136) was
signed into law. The law includes new waiver authority for
the Secretary of Education (the Secretary), in addition to the
waiver authority the Secretary already has under the
Elementary and Secondary Education Act (ESEA). Among
other things, the new waiver authority permits the Secretary
to waive educational accountability requirements using a
streamlined process. After a brief discussion of the
Secretary's waiver authority under the ESEA, this In Focus
discusses the waiver authority provided to the Secretary in
the CARES Act.
E ~A W a k er A ut h 0rikt:y
Under Section 8401 of the ESEA, the Secretary is
authorized to waive most statutory and regulatory
requirements associated with any program authorized by
the ESEA, provided that certain requirements are met, if
specifically requested by a state educational agency (SEA)
or Indian tribe. Local educational agencies (LEAs) may
submit waiver requests through their SEA. The SEA may
then submit the request to the Secretary if it approves the
waiver. Schools must submit their waiver requests to their
LEA, which in turn submits those requests to the SEA.
An entity requesting a waiver must submit a waiver request
with a plan that, among other requirements, identifies the
federal program affected by the requested waiver, describes
which federal statutory and regulatory requirements are to
be waived, and describes how the waiving of such
requirements will advance student achievement. The
Secretary must issue an initial approval or disapproval of a
waiver request not more than 120 days after it is submitted.
The Secretary may grant a waiver for up to four years and
may extend it under certain circumstances.
The Secretary is prohibited from using authority available
under Section 8401 to waive statutory or regulatory
requirements related to, for example, the allocation or
distribution of funds to states, LEAs, Indian tribes, and
other recipients of funds; supplement, not supplant
requirements; and applicable civil rights requirements. The
Secretary is prohibited from waiving maintenance of effort
(MOE) requirements under Section 8401, but has the
authority to waive MOE requirements for LEAs under
Sections 1118(a) and 8521(c) and for states under Section
1125A(e)(3).
NatioEr
The COVID-19 Pandemic Education Relief Act of 2020,
included as Title III-B of the CARES Act, provides for
waivers primarily related to the ESEA. Section 3511 of the
CARES Act allows the Secretary, upon request from an
SEA, LEA, or Indian tribe, to grant waivers of various
statutory or regulatory provisions if she determines that
such a waiver is necessary and appropriate due to the
coronavirus emergency determined to exist by the President
under Section 501(b) of the Robert T. Stafford Disaster
Relief and Emergency Assistance Act (hereinafter referred
to as the coronavirus emergency).
The Secretary is required to create an expedited application
process for SEAs (including the Bureau of Indian Education
[BIE]) and Indian tribes to request a waiver of any statutory
or regulatory requirement for an SEA related to educational
assessments, accountability, and reporting requirements
pertaining to assessments and accountability under Section
1111 of the ESEA or Section 421(b) of the General
Education Provisions Act (GEPA) (which concerns the
extension of the period available for the obligation and
expenditure of appropriated funds for most programs
administered by the U.S. Department of Education (ED)
and is commonly referred to as the Tydings Amendment).
The Secretary may grant such waivers using the streamlined
application process if she determines that the waivers are
necessary and appropriate due to the coronavirus
emergency.
More specifically, the expedited waiver process may be
applied to waiver requests related to the following
provisions of Section 1111 of the ESEA:
* educational assessment requirements under (b)(2) and
assessment requirements for recently arrived English
learners under (b)(3);
* statewide educational accountability systems, including
long-term goals, indicators, annual meaningful
differentiation, and identification of schools under
(c)(4);
* requirements related to additional targeted support and
improvement under (d)(2)(C) and (D);
* reporting requirements for various data included in
annual state report cards under (h)(1)(C), including a
description of the state's accountability system (i),
student performance on academic assessments (ii),
student performance on the other academic indicator
required for elementary schools and secondary schools
that are not high schools (iii)(I), number and percentage
of English learners achieving English language
proficiency (iv), student performance on the state's
indicator(s) of school quality or student success (v),
student progress toward meeting the long-term and
interim goals included in the state's accountability
system (vi), the percentage of students assessed and not
assessed (vii), and the number and percentage of
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