Secretary of Education’s Waiver Authority with Respect to Title I-A Provisions Included in the Elementary and Secondary Education Act

To: House Committee on Education and the Workforce
Attention: Majority Committee Staff

From: Emily Barbour, Legislative Attorney
Jody Feder, Legislative Attorney
Rebecca Skinner, Specialist in Education Policy

This memorandum responds to your request for an analysis of the Secretary of Education’s waiver authority with respect to Title I-A provisions included in the Elementary and Secondary Education Act (ESEA). This memorandum is substantially identical to a November 29, 2010 memorandum that was prepared for committee staff by Jody Feder, Legislative Attorney, and Rebecca Skinner, Specialist in Education Policy. At the Committee’s request, the November 2010 memorandum was reviewed, and its analysis was determined to be both accurate and timely under current circumstances. That memorandum, the body of which begins in the next paragraph, examines: (1) the Secretary’s use of waivers in the circumstances the Committee specified; (2) the extent to which the Secretary can condition waivers on an applicant’s performance of other actions; and (3) the scope of the Secretary’s waiver authority in the instances the Committee identified.

The first section of the memorandum begins with a general overview of the authority provided to the Secretary under Section 9401 of the ESEA to grant case-by-case waivers under the ESEA. This discussion examines the requirements that waiver requests must meet and limitations on the Secretary’s authority in this area. This is followed by an examination of any potential waiver authority or prohibitions on waivers included in Title I-A. The next section of the memorandum discusses current uses of waiver authority by the Secretary. The following section provides a legal analysis of the scope of the Secretary’s authority to waive ESEA requirements. This discussion is followed by an analysis of whether the Secretary has the authority to require states and local educational agencies (LEAs) to take an action not required by law in order to receive a waiver. The last part of the memorandum discusses the potential use of the Secretary’s waiver authority in the five specific examples you specified. Given the general interest in this topic, CRS may provide some or all of the information contained in this memorandum to other congressional requesters.


Date of Report: June 28, 2011
Number of Pages: 11
Order Number: M-062811
Price: $29.95

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