Unless Congress acts by this fall to overhaul No Child Left Behind, the main federal law on public education, Secretary of Education Arne Duncan signaled that he would use his executive authority to free states from the law's centerpiece requirement that all students be proficient in reading and math by 2014.
The Obama administration has been facing a mounting clamor from state school officials to waive substantial parts of the law, which President George W. Bush signed in 2002, especially its requirement that states bring 100 percent of students to proficiency in reading and math by 2014 or face sanctions. In March, Duncan predicted that the law would classify 80,000 of the nation's 100,000 public schools as failing this fall unless it was amended.
But his efforts to address the problem have gained little traction on Capitol Hill, where several attempts since 2007 to rewrite the sprawling school accountability law have failed.
"We're not going to sit here and do nothing," Duncan told reporters Friday in a conference call that was embargoed until midnight Saturday. "Our first priority is to have Congress rewrite the law. If that doesn't get done, we have the obligation to provide relief in exchange for reform."
While the secretary said it was premature to lay out specific plans for potential waivers, his aides said the 100 percent proficiency standard would be the main target, and that restrictions on how federal money is spent could be relaxed. Duncan said in exchange for such flexibility, states would have to embrace President Barack Obama's education priorities, a formula the administration used last year in its signature education initiative, the Race to the Top grant competition, which awarded money to those that opened new space for charter schools, toughened teacher evaluation systems, and remade their worst-performing schools, among other things.
Congressional leaders reacted cautiously to Duncan's salvo. Rep. John Kline, R-Minn., chairman of the House Education Committee, "remains concerned about any initiative that would allow the secretary to pick winners and losers in the nation's education system," said Jennifer Allen, a spokeswoman. Still, she said, Kline supports "providing states and school districts with enhanced flexibility, believing a more streamlined federal role in education combined with reduced regulatory burdens would encourage greater innovation and higher academic achievement."
Sen. Tom Harkin, D-Iowa, chairman of the Senate Education Committee, called Duncan's comments "premature."
"The best way to fix the problems in existing law is to pass a better one," he said in a statement. "We are making good progress towards introducing a bill that will advance that goal. Given the bipartisan commitment in Congress to fixing No Child Left Behind, it seems premature at this point to take steps outside the legislative process that would address NCLB's problems in a temporary and piecemeal way."
But since no draft legislation has been introduced in either chamber this year, experts are skeptical that Congress could send a rewrite of the law to Obama's desk by the time school begins this fall, as he requested in a recent speech.
Duncan said the administration would reach out immediately to governors, state school commissioners and other leaders to begin negotiations over the potential waivers, asking which provisions of the law they consider the most serious obstacles and what kinds of school improvement policies they would be willing to undertake in exchange.
More than 40 states have agreed in recent months to adopt new common academic standards, and several of them have asked the Education Department to exempt them from the law's accountability system. They argue that it is unreasonable and unfair to hold them to testing targets outlined in the Bush-era law even as they are trying to raise the bar with the new standards, and new tests being written to align with them.
So far, Duncan has refused to grant such waiver requests, but his latest statement indicated that would change by fall if there is no action on the law.
Some state education chiefs lauded Duncan for promising to fix the law's flaws after four years of congressional paralysis.
"I'm pleased that there is an option for a Plan B," said Diane DeBacker, the commissioner of education in Kansas, a state that in February requested - and was denied - a waiver to the 100 percent proficiency by 2014 rule. "This would work great for Kansas."