ED-FLEX - THE BACKDOOR EDUCATION BLOCK GRANT

Contact: Christine Stoneman, Center for Law and Education

202/986-3000 or

The Federal governmentµs role in promoting and enforcing equity and quality in education is under attack. The press for privatization and block grants to states, local education agencies and schools are the primary vehicles for minimizing the federal role. However, another approach is to waive or eliminate programmatic requirements and/or the focus on particular groups of students for federal education programs.

• A PARTICULARLY DANGEROUS VEHICLE FOR THIS DEVOLUTION APPROACH IS THE EXISTENCE AND EXPANSION OF THE EDUCATION FLEXIBILITY DEMONSTRATION PROJECT (·ED-FLEXº). Congress now is considering proposals to expand Ed-Flex from the current twelve states to all fifty
• ED-FLEX gives states the blanket power to issue waivers of most provisions of the largest federal education program in existence - the Elementary and Secondary Education Act - and the Perkins Act.
• Ed-Flex allows states to waive these provisions for itself (the State Education Agency), the Local Education Agencies, and the schools within the state.
• Ed-Flex allows states to waive provisions such as:
• the requirement that Title I students to be taught by highly qualified professional staff
• the requirement that states set high standards for all children;
• the requirement that states provide funding to lowest income schools first;
• the requirement that states hold schools accountable for making substantial annual progress toward getting all students, particularly low income and limited English proficient students, to meet high standards;
• the requirement that funded vocational programs provide broad education and work experiences rather than narrow job training.
• While ED-FLEX does not, as currently written, allow states to waive requirements under IDEA, the potential repercussions for students with disabilities protected by IDEA as well as Section 504 of the Rehabilitation Act are, nonetheless, serious. Students with disabilities benefit from the provisions holding schools and school districts to high standards for all students.

Under Ed-Flex, states, districts, and schools can waive many quality-related provisions that apply to all students, including those with disabilities. Having a unitary statewide system focused on enabling all students to meet high standards takes away excuses for failing to educate all students. IDEA and Section 504 provide students with protections as well as programming and services they need in order to succeed in that unitary system. If states are able to start waiving out of various provisions (for example, the Title I requirement to provide a high quality professional staff), it hurts all students, including students with disabilities. Furthermore, waiving such components that are critical to improving studentsµ educational opportunities and achievement will undermine progress toward effective implementation of the unitary system. Suddenly, as a matter of federal law, some school districts are required to have high quality professional staff, and others arenµt. Some schools have to teach an accelerated curriculum, as required by Title I, and others are allowed to waive out of such a requirement. If pieces of standards-based reform are unraveling, the effective implementation of IDEA and the relationship between Section 504 and standards-based reform becomes much more complicated.

As an additional matter, if school districts begin to waive out of requirements essential for providing poor students with a high quality education, the provisions of the IDEA Amendments of 1997 that were specifically designed to reduce over-identification of students, will be undermined, as teachers and parents, who see no alternative for these students with disabilities to receive the kind of individualized interventions and supports they need to succeed, refer them for special education.

Ed-Flex allows states to waive provisions of law which directly speak to protection of and the provision of services to students with disabilities. Some of these requirements are not explicitly addressed by IDEA and § 504. For example, Perkins requires recipients to review programs and identify and adopt strategies to overcome barriers resulting in lower rates of access or lower rates of success in the program for special populations, including students with disabilities; and it also requires state and local program assessments to address how the needs of special populations, including students with disabilities, are being met and how the programs are designed to enable those populations to meet State performance levels and prepare them for further learning or high-skill, high-wage careers.

• There are other specific provisions in both Title I and Perkins which may be explicitly covered by IDEA and § 504. But reiterating these requirements is clearly important. Experience tells us that Title I staff reads Title I; Perkins staff reads Perkins; Special Education staff reads IDEA. Allowing education agencies to waive out of even overlapping requirements - let alone those which are only explicit in Title I or Perkins -- regarding the full inclusion of students with disabilities in a high quality educational program virtually ensures that a unitary system of enabling all students to achieve high standards will disintegrate. The Perkins staff simply will not know what they are obligated to do to ensure that students with disabilities are fully served and are succeeding in Perkins programs. Title I staff will be similarly uninformed.
• Ed-Flex does not allow states to waive certain provisions of the law, but the list of exclusions is very short and far too narrowly drawn.
• Ed-Flex is sometimes framed as: ·Flexibility in exchange for accountability,º but the ed-flex statute does not provide for meaningful additional accountability measures for ed-flex states in exchange for the waiver power granted.
• Ed-Flex power was originally granted to six states perceived of as ·ahead of the packº in school reform. There are now twelve states with the power. Thus far, the waivers have been primarily directed at issues such as lowering the percentage of low-income students in a school needed to become a schoolwide school under Title I. Yet the waiver authority currently in the law is much more extensive than that.
• If Ed-Flex power is expanded, as it is currently written, proponents of block grants and complete local control will have won a significant victory, for no matter what the reauthorized ESEA ends up looking like, if states can waive most of the provisions of the law, they will be free to do as they will with the federal money they are given.
• Congress should first ask what would happen if the laws were being implemented and enforced effectively, and then carefully craft provisions to address particularized needs to ensure that the waiver power is narrowly defined and that States, schools, and districts are held accountable for providing a quality education for all students. At the very least, in addition to current waiver restrictions, States should not be allowed to waive the core state and local programmatic requirements under Title I and the Perkins Act.