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Federalizing Education by Waiver?

Posted by on Saturday, May 2, 2015 in Articles, Volume 68, Volume 68, Number 3.

Federalizing Education by Waiver?


In the fall of 2011, the U.S. Secretary of Education told states he would use his statutory power to waive violations of the No Child Left Behind Act (“NCLB”), but only on the condition that they adopt his new education policies— policies that had already failed to move forward in Congress. States had no choice but to agree because eighty percent of their schools were faced with serious statutory sanctions. As a result, the Secretary was able to unilaterally dictate core education policies for the nation’s public schools. For the first time, the content of school curriculum and the means by which schools would evaluate teachers came under the direct influence of a federal official. This Article demonstrates that this exercise of power was beyond the scope of the Secretary’s statutory or constitutional authority. To be clear, Congress can confer to agencies the power to impose policies through waiver conditions, but Congress must do so clearly and place limits on the scope of the conditions. NCLB contained no notice that states might face waiver conditions when they first agreed to participate in NCLB, much less notice of the substance of those conditions. Spending Clause doctrine requires both. Moreover, states’ inability to say no to these conditions raises serious questions of unconstitutional coercion. The Secretary also exercised the equivalent of lawmaking power when he imposed wide-reaching conditions with no statutory guidance from Congress. To avoid the difficult separation of powers issues this raises, however, a reviewing court might narrowly construe the statutory authority conferred to the Secretary. The statutory analysis is easy. The Secretary lacks explicit authority to condition waivers. At best, NCLB implies authority to condition waivers, but implied conditions would be limited to the scope of NCLB itself. The waiver conditions the Secretary imposed go well beyond the scope of NCLB. For instance, the text of NCLB specifically prohibits the Secretary from requiring “specific instructional content, academic achievement standards and assessments, [or] curriculum.” In short, NCLB waivers are void on multiple grounds. This unilateral imposition of policy through waiver conditions is remarkable not only for its transformation of key aspects of education but also for the entire federal administrative state. It opens the door to the spread of a more expansive administrative power than ever seen before. Current scholarship and precedent provide almost no direction for this spread. This Article does, calling into doubt the constitutionality and efficacy of the power to remake law through waiver.


Professor of Law, University of South Carolina School of Law. I would like to thank Dean Robert Wilcox for his support of my scholarship; Benjamin Means, Joseph Seiner, and Ned Snow for their comments on earlier drafts; Inge Lewis for her proofreading; Nicholas Cherry for his research; and the editors and staff of Vanderbilt Law Review for their extremely careful thinking, proofreading, and research. I would also like to thank Avni Gupta-Kagan for pressing me to think further about distinctions between standards, curriculum, and pedagogy.