[House Report 106-43]
[From the U.S. Government Publishing Office]
106th Congress Report
1st Session HOUSE OF REPRESENTATIVES 106-43
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EDUCATION FLEXIBILITY PARTNERSHIP ACT OF 1999
_______
March 8, 1999.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Goodling, from the Committee on Education and the Workforce,
submitted the following
R E P O R T
together with
MINORITY AND ADDITIONAL VIEWS
[To accompany H.R. 800]
[Including cost estimate of the Congressional Budget Office]
The Committee on Education and the Workforce, to whom was
referred the bill (H.R. 800) to provide for education
flexibility partnerships, having considered the same, report
favorably thereon with an amendment and recommend that the bill
as amended do pass.
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Education Flexibility Partnership Act
of 1999''.
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) States differ substantially in demographics, in school
governance, and in school finance and funding. The
administrative and funding mechanisms that help schools in 1
State improve may not prove successful in other States.
(2) Although the Elementary and Secondary Education Act of
1965 and other Federal education statutes afford flexibility to
State and local educational agencies in implementing Federal
programs, certain requirements of Federal education statutes or
regulations may impede local efforts to reform and improve
education.
(3) By granting waivers of certain statutory and regulatory
requirements, the Federal Government can remove impediments for
local educational agencies in implementing education reforms
and raising the achievement levels of all children.
(4) State educational agencies are closer to local school
systems, implement statewide education reforms with both
Federal and State funds, and are responsible for maintaining
accountability for local activities consistent with State
standards and assessment systems. Therefore, State educational
agencies are often in the best position to align waivers of
Federal and State requirements with State and local
initiatives.
(5) The Education Flexibility Partnership Demonstration Act
allows State educational agencies the flexibility to waive
certain Federal requirements, along with related State
requirements, but allows only 12 States to qualify for such
waivers.
(6) Expansion of waiver authority will allow for the waiver
of statutory and regulatory requirements that impede
implementation of State and local educational improvement
plans, or that unnecessarily burden program administration,
while maintaining the intent and purposes of affected programs,
such as the important focus on improving math and science
performance under title II of the Elementary and Secondary
Education Act of 1965, (Dwight D. Eisenhower Professional
Development Program), and maintaining such fundamental
requirements as those relating to civil rights, educational
equity, and accountability.
(7) To achieve the State goals for the education of children
in the State, the focus must be on results in raising the
achievement of all students, not process.
SEC. 3. DEFINITIONS.
In this Act:
(1) Attendance area.--The term ``attendance area'' has the
meaning given the term ``school attendance area'' in section
1113(a)(2)(A) of the Elementary and Secondary Education Act of
1965.
(2) Ed-flex partnership state.--The term ``Ed-Flex
Partnership State'' means an eligible State designated by the
Secretary under section 4(a)(1)(B).
(3) Local educational agency; state educational agency.--The
terms ``local educational agency'' and ``State educational
agency'' have the meaning given such terms in section 14101 of
the Elementary and Secondary Education Act of 1965.
(4) Secretary.--The term ``Secretary'' means the Secretary of
Education.
(5) State.--The term ``State'' means each of the 50 States,
the District of Columbia, the Commonwealth of Puerto Rico, and
each of the outlying areas.
SEC. 4. EDUCATION FLEXIBILITY PARTNERSHIP.
(a) Education Flexibility Program.--
(1) Program authorized.--
(A) In general.--The Secretary may carry out an
education flexibility program under which the Secretary
authorizes a State educational agency that serves an
eligible State to waive statutory or regulatory
requirements applicable to 1 or more programs or Acts
described in subsection (b), other than requirements
described in subsection (c), for the State educational
agency or any local educational agency or school within
the State.
(B) Designation.--The Secretary shall designate each
eligible State participating in the program described
in subparagraph (A) to be an Ed-Flex Partnership State.
(2) Eligible state.--For the purpose of this subsection the
term ``eligible State'' means a State that--
(A)(i) has--
(I) developed and implemented the challenging
State content standards, challenging State
student performance standards, and aligned
assessments described in section 1111(b) of the
Elementary and Secondary Education Act of 1965,
and for which local educational agencies in the
State are producing the individual school
performance profiles required by section
1116(a) of such Act; or
(II) developed and implemented content
standards and interim assessments and made
substantial progress, as determined by the
Secretary, toward developing and implementing
performance standards and final aligned
assessments, and toward having local
educational agencies in the State produce the
profiles, described in subclause (I); and
(ii) holds local educational agencies and schools
accountable for meeting the educational goals described
in the local applications submitted under paragraph
(4); and
(B) waives State statutory or regulatory requirements
relating to education while holding local educational
agencies or schools within the State that are affected
by such waivers accountable for the performance of the
students who are affected by such waivers.
(3) State application.--
(A) In general.--Each State educational agency
desiring to participate in the education flexibility
program under this section shall submit an application
to the Secretary at such time, in such manner, and
containing such information as the Secretary may
reasonably require. Each such application shall
demonstrate that the eligible State has adopted an
education flexibility plan for the State that
includes--
(i) a description of the process the State
educational agency will use to evaluate
applications from local educational agencies or
schools requesting waivers of--
(I) Federal statutory or regulatory
requirements as described in paragraph
(1)(A); and
(II) State statutory or regulatory
requirements relating to education; and
(ii) a detailed description of the State
statutory and regulatory requirements relating
to education that the State educational agency
will waive;
(iii) a description of specific educational
objectives the State intends to meet under such
a plan;
(iv) a description of the process by which
the State will measure the progress of local
educational agencies in meeting specific goals
described in subsection (a)(4)(A)(iii); and
(v) an assurance that, not less than 30 days
prior to waiving any Federal statutory or
regulatory requirement, or in accordance with
State law, the State educational agency shall
give public notice in widely-read publications,
such as large circulation newspapers and
community newspapers, of its intent to grant
such a waiver, a description of the Federal
statutory or regulatory requirements that the
State educational agency proposes to waive, any
improved performance of students that is
expected to result from the waiver, and the
State official--
(I) to whom comments on the proposed
waiver may be sent by interested
individuals and organizations; and
(II) who will make all the comments
received available for review by any
member of the public.
(B) Approval and considerations.--The Secretary may
approve an application described in subparagraph (A)
only if the Secretary determines that such application
demonstrates substantial promise of assisting the State
educational agency and affected local educational
agencies and schools within such State in carrying out
comprehensive education reform, after considering--
(i) the comprehensiveness and quality of the
education flexibility plan described in
subparagraph (A);
(ii) the ability of such plan to ensure
accountability for the activities and goals
described in such plan;
(iii) the degree to which the State's
objectives described in subparagraph (A)(iii)--
(I) are specific and measurable; and
(II) measure the performance of local
educational agencies or schools and
specific groups of students affected by
waivers;
(iv) the significance of the State statutory
or regulatory requirements relating to
education that will be waived; and
(v) the quality of the State educational
agency's process for approving applications for
waivers of Federal statutory or regulatory
requirements described in paragraph (1)(A) and
for monitoring and evaluating the results of
such waivers.
(4) Local application.--
(A) In general.--Each local educational agency or
school requesting a waiver of a Federal statutory or
regulatory requirement described in paragraph (1)(A)
and any relevant State statutory or regulatory
requirement from a State educational agency shall
submit an application to the State educational agency
at such time, in such manner, and containing such
information as the State educational agency may
reasonably require. Each such application shall--
(i) indicate each Federal program affected
and the statutory or regulatory requirement
that will be waived;
(ii) describe the purposes and overall
expected results of waiving each such
requirement;
(iii) describe, for each school year,
specific, measurable, educational goals for
each local educational agency, school, or group
of students affected by the proposed waiver;
(iv) explain why the waiver will assist the
local educational agency or school in meeting
such goals; and
(v) provide an assurance that, not less than
30 days prior to submitting the application to
the State educational agency for a waiver under
this section, or in accordance with State law,
the local educational agency or school shall
give public notice in widely-read publications,
such as large circulation newspapers and
community newspapers, of its intent to request
the waiver, a description of the Federal
statutory or regulatory requirements that will
be waived, any improved performance of students
that is expected to result from the waiver, and
the name and address of the local educational
agency official--
(I) to whom comments on the proposed
waiver may be sent by interested
individuals and organizations; and
(II) who will make all the comments
received available for review by any
member of the public.
(B) Evaluation of applications.--A State educational
agency shall evaluate an application submitted under
subparagraph (A) in accordance with the State's
education flexibility plan described in paragraph
(3)(A).
(C) Approval.--A State educational agency shall not
approve an application for a waiver under this
paragraph unless--
(i) the local educational agency or school
requesting such waiver has developed a local
reform plan that is applicable to such agency
or school, respectively; and
(ii) the waiver of Federal statutory or
regulatory requirements described in paragraph
(1)(A) will assist the local educational agency
or school in meeting its educational goals.
(D) Termination.--If a local educational agency or
school that receives a waiver under this section
experiences a statistically significant decrease in the
level of performance in achieving the objectives
described in paragraph (3)(A)(iii) or goals in
paragraph (4)(A)(iii) for 2 consecutive years, the
State educational agency shall, after notice and an
opportunity for a hearing to explain such decrease,
terminate the waiver authority granted to such local
educational agency or school. If, after notice and an
opportunity for a hearing, the State educational agency
determines that the decrease in performance was
justified due to exceptional or uncontrollable
circumstances such as a natural disaster or a
precipitous and unforeseen decline in the financial
resources of the local educational agency or school,
the waiver shall not be terminated.
(5) Monitoring.--
(A) In general.--Each State educational agency
participating in the program under this section shall
annually monitor the activities of local educational
agencies and schools receiving waivers under this
section and shall submit an annual report regarding
such monitoring to the Secretary.
(B) Performance data.--Not later than 2 years after a
State is designated as an Ed-Flex Partnership State,
each such State shall include performance data
demonstrating the degree to which progress has been
made toward meeting the objectives outlined in
paragraph (3)(A)(iii).
(6) Duration of federal waivers.--
(A) In general.--The Secretary shall not approve the
application of a State educational agency under
paragraph (3) for a period exceeding 5 years, except
that the Secretary may extend such period if the
Secretary determines that such agency's authority to
grant waivers has been effective in enabling such State
or affected local educational agencies or schools to
carry out their local reform plans.
(B) Performance review.--Three years after a State is
designated an Ed-Flex Partnership State, the Secretary
shall--
(i) review the performance of any State
educational agency in such State that grants
waivers of Federal statutory or regulatory
requirements described in paragraph (1)(A); and
(ii) terminate such agency's authority to
grant such waivers if the Secretary determines,
after notice and opportunity for a hearing,
that such agency has failed to make measurable
progress in meeting the objectives outlined in
paragraph (3)(A)(iii) to justify continuation
of such authority.
(7) Authority to issue waivers.--Notwithstanding any other
provision of law, the Secretary is authorized to carry out the
education flexibility program under this subsection for each of
the fiscal years 1999 through 2004.
(b) Included Programs.--The statutory or regulatory requirements
referred to in subsection (a)(1)(A) are any such requirements under the
following programs or Acts:
(1) Title I of the Elementary and Secondary Education Act of
1965.
(2) Part B of title II of the Elementary and Secondary
Education Act of 1965.
(3) Subpart 2 of part A of title III of the Elementary and
Secondary Education Act of 1965 (other than section 3136 of
such Act).
(4) Title IV of the Elementary and Secondary Education Act of
1965.
(5) Title VI of the Elementary and Secondary Education Act of
1965.
(6) Part C of title VII of the Elementary and Secondary
Education Act of 1965.
(7) The Carl D. Perkins Vocational and Technical Education
Act of 1998.
(c) Waivers Not Authorized.--The Secretary may not waive any
statutory or regulatory requirement of the programs or Acts authorized
to be waived under subsection (a)(1)(A)--
(1) relating to--
(A) maintenance of effort;
(B) comparability of services;
(C) the equitable participation of students and
professional staff in private schools;
(D) parental participation and involvement;
(E) the distribution of funds to States or to local
educational agencies;
(F) the selection of schools to participate in part A
of title I of the Elementary and Secondary Education
Act of 1965, except that a State educational agency may
grant waivers to allow schools to participate in part A
of title I of such Act if the percentage of children
from low-income families in the attendance area of such
school or who actually attend such school is within 5
percentage points of the lowest percentage of such
children for any school in the local educational agency
that meets the requirements of section 1113 of the Act;
(G) use of Federal funds to supplement, not supplant,
non-Federal funds; and
(H) applicable civil rights requirements; and
(2) unless the underlying purposes of the statutory
requirements of each program or Act for which a waiver is
granted continue to be met to the satisfaction of the
Secretary.
(d) Application.--
(1) In general.--Except as provided in paragraphs (2) and
(3), this Act shall not apply to a State educational agency
that has been granted waiver authority under the following
provisions of law:
(A) Section 311(e) of the Goals 2000: Educate America
Act.
(B) The proviso referring to such section 311(e)
under the heading ``education reform'' in the
Department of Education Appropriations Act, 1996
(Public Law 104-134; 110 Stat. 1321-229).
(2) Exception.--If a State educational agency that has been
granted waiver authority, pursuant to paragraph (1)(A) or (B),
applies to the Secretary to extend such authority, the
provisions of this Act, except subsection (e)(1), shall apply
to such agency.
(3) Effective Date for existing ed-flex programs.--This Act
shall apply to a State educational agency described in
paragraph (2) beginning on the date that such an extension is
granted.
(e) Accountability.--
(1) Evaluation for ed-flex partnership states.--In deciding
whether to extend a request for a State educational agency's
authority to issue waivers under this section, the Secretary
shall review the progress of the State educational agency to
determine if such agency--
(A) makes measurable progress toward achieving the
objectives described in the application submitted
pursuant to subsection (a)(3)(A)(iii); and
(B) demonstrates that local educational agencies or
schools affected by such waiver or authority have made
measurable progress toward achieving the desired
results described in the application submitted pursuant
to subsection (a)(4)(A)(iii).
(2) Evaluation for existing ed-flex programs.--In deciding
whether to extend a request for a State educational agency
described in subsection (d)(2) to issue waivers under this
section, the Secretary shall review the progress of the agency
in achieving the objectives set forth in the application
submitted pursuant to subsection (a)(2)(B)(iii) of the Goals
2000: Educate America Act.
(f) Publication.--A notice of the Secretary's decision to authorize
State educational agencies to issue waivers under this section shall be
published in the Federal Register and the Secretary shall provide for
the dissemination of such notice to State educational agencies,
interested parties, including educators, parents, students, advocacy
and civil rights organizations, other interested parties, and the
public.
(g) Effective Date.--This Act shall be effective during the period
beginning on the date of the enactment of this Act and ending on the
date of the enactment of an Act (enacted after the date of the
enactment of this Act) that reauthorizes the Elementary and Secondary
Education Act of 1965 in its entirety.
purpose
The purpose of H.R. 800, the ``Education Flexibility
Partnership Act of 1999,'' is to extend the waiver authority
under the twelve-state ``Education Partnership Flexibility
Demonstration Act'' to all fifty states. The legislation
extends greater flexibility to states, school districts and
schools in the operation of seven K-12 Federal elementary and
secondary education programs in exchange for increased
accountability for academic achievement.
summary
H.R. 800 expands education flexibility under the
``Education Flexibility Partnership Demonstration Act'' from
twelve pilot states to all fifty states; increases academic
accountability by requiring states and school districts to show
specific and measurable educational goals that will be met as a
result of the flexibility; adds the Technology Literacy
Challenge Fund to the current-law list of six Federal K-12
programs for which waivers can be obtained; and adds civil
rights requirements and a Title I-related provision to the list
of requirements that cannot be waived.
committee action
Hearings
On February 25, 1999, the Subcommittee on Early Childhood,
Youth and Families held a hearing entitled ``Putting
Performance First: Hearing on ``Ed-Flex'' and it's Role in
Improving Student Performance and Reducing Bureaucracy.'' The
hearing focused upon the issues surrounding the Education
Flexibility Partnership Demonstration Act. Witnesses were
invited to share their views on how Ed-Flex has worked in their
participating states, including the numbers and types of
waivers granted to their local school districts, and especially
how Ed-Flex has worked at the local level. The hearing also
focused upon the General Accounting Office's (GAO) report ``Ed-
Flex States Vary in Implementation of Waiver Process,''
released in November 1998. This report provided an overview of
how Ed-Flex has been implemented in the current twelve states
where it has been piloted and examined the criteria that states
must meet to participate in Ed-Flex. It also presented GAO's
findings on the usefulness of Ed-Flex authority, and identified
certain accountability issues. The subcommittee received
testimony from Dr. Carlotta Joyner, Director of Education and
Employment Issues, General Accounting Office, Washington, D.C.,
Ms. Madeleine Draeger Manigold, Coordinator of Waivers, Office
for the Education of Special Populations, Texas Education
Agency, Austin, Texas, Mr. Gregg Stubbs, Assistant Director,
Division of Professional Development and Licensure, Ohio
Department of Education, Columbus, Ohio, Dr. Michael E. Ward,
Superintendent of Public Instruction, North Carolina Department
of Public Instruction, Raleigh, North Carolina, and Dr.
Lorraine A. Costella, Superintendent of Schools, Kent County
Public Schools, Chestertown, Maryland.
In the 105th Congress, language to expand education
flexibility waivers to all fifty states was included in H.R.
3248, the Dollars to the Classroom Act. H.R. 3248 passed the
House on September 18, 1998 by a vote of 212-198. No
legislative action on H.R. 3248 occurred in the Senate. In the
fall of 1998, Representatives Castle and Roemer introduced H.R.
4590, which would have allowed all fifty states to apply for
the ``Ed-Flex'' waiver authority. No committee or legislative
action occurred on this bill.
Legislative action
On February 23, 1999, Subcommittee Chairman Castle (R-DE)
and Representative Roemer (D-IN) introduced H.R. 800, ``The
Education Flexibility Partnership Act of 1999,'' with 28
cosponsors. On March 3, 1999, the Committee on Education and
the Workforce considered H.R. 800 in legislative session. The
bill was favorably reported, as amended, by a vote of 33-9.
Subcommittee Chairman Mike Castle (R-DE) offered a
committee substitute amendment. Thereafter, Rep. David Wu (D-
OR) offered a class size reduction amendment which was ruled
nongermane by Chairman Bill Goodling (R-PA). The ruling of the
chair was appealed. A procedural vote to sustain the ruling of
the chair then passed 23-15. Congressman George Miller (D-CA)
offered an amendment relating to State assessments under Title
I of the Elementary and Secondary Education Act. The amendment
was defeated by a vote of 18-26. Next, Rep. Matthew Martinez
(D-CA) offered an amendment relating to notice and comment
which was accepted voice vote. Rep. Dale Kildee (D-MI) offered
two amendments. The first was a sunset provision and the second
related to termination of waiver authority for decreasing
student performance. Both were accepted voice vote. Next, Rep.
Rush Holt (D-NJ) offered and withdrew an amendment relating to
math and science professional development. Rep. George Miller
(D-CA) offered and withdrew a monitoring and reporting
amendment. Finally, Rep. Bobby Scott (D-VA) offered an
amendment relating to schoolwide projects under Title I of the
Elementary and Secondary Education Act. The amendment was
defeated by a vote of 20-24. There being no further amendments,
the substitute amendment, as amended, was adopted voice vote.
The Committee on Education and the Workforce, with a
majority of the Committee present, favorably reported H.R. 800
to the House by a vote of 33 to 9, on March 3, 1999.
committee views
Historical perspective
The case for expanding ed-flex: federal programs place
bureaucratic and regulatory burdens on all state
and local school districts
After decades of spending billions on federal education
research and evaluation programs, very little is known about
the effectiveness of the scores of federal elementary and
secondary education programs administered by the U.S.
Department of Education. Consequently, Congress lacks adequate
data to determine what really works and what does not. Even the
largest Federal elementary and secondary education program,
Title I, has not been sufficiently evaluated to know if it is
helping children learn. We are hopeful that the Department of
Education will provide more useful data with respect to these
programs during the next session of Congress.
Because Federal education programs are compliance and not
performance-based, they generate a large amount of paperwork
and require thousands of bureaucrats to administer the
programs. Some examples of this burden are as follows:
Burdensome Paperwork Requirements: Even after accounting
for recent reductions, the U.S. Department of Education still
requires over 48.6 million hours worth of paperwork per year--
the equivalent of 25,000 employees working full-time for a
year.\1\
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\1\ Marshall Smith, ``Paper Reduction Act Accomplishments and Plans
for Future,'' U.S. Department of Education, October 31, 1996.
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Thousands of Federally-funded Employees at the State Level:
The Department of Education is one of the smallest Federal
agencies. Yet, to administer all the Federal education programs
within the states, there are nearly three times as many
Federally funded employees working in state education agencies,
as there are within the Federal Department of Education itself.
According to GAO, there are about 13,400 FTEs (full-time
equivalents) funded with Federal dollars to administer these
programs.\2\
---------------------------------------------------------------------------
\2\ U.S. General Accounting Office, Education Finance: The Extent
of Federal Funding in State Education Agencies, GAO/HEHS-95-3, October
1995, p. 11.
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A 487 Step Discretionary Grant Process: In 1993, Vice-
President Gore's National Performance Review discovered that
the Department of Education's discretionary grant process
lasted 26 weeks and took 487 steps from start to finish. It was
not until three years later in 1996 that the Department finally
took steps to begin ``streamlining'' their long and protracted
grant review process, a process which has yet to be completed
and fully implemented. After the streamlining is complete it
will only take an average of twenty weeks and 216 steps to
complete a review.\3\
---------------------------------------------------------------------------
\3\ U.S. Department of Education Report, ``A Redesigned
Discretionary Grant Process''--Vice President Gore's National
Performance Review 1995. Redesigned process is due to be in place in
1998.
---------------------------------------------------------------------------
The cumulative effect of federally designed programs and
requirements takes its toll at the state and local level. Frank
Brogan, the Florida Commissioner of Education, noted the extent
of the command and control approach of Washington bureaucrats.
In testimony on May 5, 1998, he stated,
In practice, most federal education programs typify
the misguided, one size fits all command and control
approach that we in the states are abandoning. Most
have the requisite focus on inputs like more
regulation, increasing budgets and fixed options and
processes. Conceptualized in Washington, with all good
intentions, federal education programs often get
translated into the growing bureaucratic thicket and
prove counterproductive.
Brogan further noted that in Florida, because of Federal
requirements, there are 297 state employees to oversee and
administer approximately $1 billion in Federal funds. By
contrast, 374 state-funded positions oversee and administer
over $8 billion in state funds. Thus, six times as many people
are required to administer a Federal dollar as a state dollar.
The state of Georgia has also found federal programs to
require a disproportionate number of administrators. Georgia
State Superintendent Linda Schrenko, who spent eighteen years
as a public school teacher and principal, testified about the
excessive administrative requirements of Federal programs. She
noted that about 6.4 percent of the $9.45 billion total
education budget in Georgia (from all sources--Federal, state
and local) in 1996-97 came from the Federal government. In that
same year, the Georgia Department of Education had 322
employees, of whom 93 worked full-time filling out paperwork
and administering the federal programs. In effect, this
amounted to 29 percent of their employees administering the 6.4
percent of funds that came from Washington.
Federal education programs are for the most part one-size-
fits-all solutions to problems that vary widely from state to
state. Every state has different needs and priorities, and the
paperwork and requirements which accompany federal programs
often prevent them from best addressing these issues. States
often have to plan their agendas around prescriptive federal
constraints, as well as overlapping and often conflicting
program requirements. Given that we do not currently even have
sufficient data demonstrating the effectiveness of Federal
programs, and the burdens necessarily placed on state and local
school districts as a result, the Federal government should
expand flexibility in federal programs. As much as possible it
should defer to the states and local school districts to design
their own programs for ensuring that all children receive a
high quality education, while at the same time making sure that
taxpayers receive their money's worth by ensuring that federal
investments in education improve performance.
Education flexibility for all 50 States under H.R. 800
Currently, the GOALS 2000: Educate America Act, authorizes
twelve states to participate in the Education Flexibility
Partnership Demonstration Program (Ed-Flex). In exchange for
increased accountability for results, Ed-Flex provides greater
state and local flexibility in using Federal education funds to
support locally-designed, comprehensive school improvement
efforts. It accomplishes this by allowing states to approve
local applications to receive waivers from certain Federal
requirements that interfere with schools' ability to educate
children instead of requiring them to submit applications to
the U.S. Department of Education each time they want to waive a
burdensome requirement.
H.R. 800 removes the 12 state limitation as well as the
demonstration nature of Ed-Flex. Under the bill, all 50 states
would be eligible to apply for this authority, and no sound
reason exists to delay extending this authority now.
Furthermore, by enacting this legislation now, the immediate
experience of the states can help Congress identify the areas
of federal regulatory burdens for school districts and then
address them during the ESEA reauthorization process.
Widespread support exists for such a change. The National
Governors Association, Republican Governors Association,
Democratic Governors Association, National School Boards
Association, American Association of School Administrators,
Chamber of Commerce, Association of American Educators,
National Association of State Boards of Education, and the
National Education Association have all endorsed H.R. 800 and
extending Ed-Flex authority to all 50 states.
President Clinton, on several occasions, has advocated for
expanding this authority to all states. On February 22, 1998,
President Clinton, in a speech to the National Governors
Association, advocated extending Ed-Flex authority to all 50
states. The President stated,
* * * I will also send to Congress this year
legislation to expand the Ed-Flex program. * * * There
are I think a dozen of you now who are part of the Ed-
Flex program. The legislation that I will send would
make every state in the country eligible to be a part
of it, which would dramatically reduce the regulatory
burden of the federal government on the states in the
area of education.
More recently, in an address to the Governors on February
22, 1999 here in Washington, DC, the President advocated for
more flexibility. He stated,
Since I've been here, our administration has * * *
granted 357 waivers so that states and school districts
can have the flexibility to try new approaches. We
don't have any business telling you whom to hire, how
to teach, [or] how to run schools. I have vigorously
supported more school-based management, and more
flexibility for you.
Secretary of Education Richard Riley, in a January 27, 1997
speech before the National School Boards Association also
endorsed Ed-Flex. He said,
Under Ed-Flex, I have given nine states the authority
to waive burdensome federal regulations, and three more
states will be added to the list. Everybody likes Ed-
Flex. It improves education and it sounds like a very
healthy exercise program, too.
Secretary Riley also reaffirmed the Administration's
support for Ed-Flex in his testimony before the House Committee
on Education and the Workforce on February 11, 1999. He said
``We are proposing to expand Ed-flex to allow all eligible
States to participate.'' In responding to questions, Riley
further commented that the Castle-Roemer Ed-Flex language which
was discussed late in the 105th Congress and which forms the
basis for H.R. 800 is ``very good language.''
How Ed-Flex has been used in the 12 pilot States under
current law to make Federal programs more effective
First enacted in 1994, the ``Education Flexibility
Partnership Demonstration Act,'' gives the Secretary of
Education the ability to grant to State Educational Agencies
(SEAs) in up to 12 states, broad authority to waive certain
statutory and regulatory requirements of several major Federal
education programs. In exchange for this flexibility, States
must be held accountable for results. Ed-Flex, in short is a
way of reducing the burden of Federal ``one-size-fits-all''
programs and reducing bureaucratic hoops that divert resources
from schools and students by giving local school districts more
freedom to design their own improvement plans. This waiver
authority was originally granted to a maximum of six states
when first enacted. It was later expanded to a maximum of 12
states in 1996. The current 12 Ed-Flex states are Colorado,
Illinois, Iowa, Kansas, Maryland, Massachusetts, Michigan, New
Mexico, Ohio, Oregon, Texas, and Vermont.
In general, Ed-Flex has been used to support reform in the
12 Ed-Flex pilot states in three ways. First, to facilitate the
coordination of programs and to improve the planning process.
Second, to waive time-consuming administrative requirements and
eliminate bureaucratic paperwork, and third (and most
significantly), to increase student achievement.
Planning for results at the local level
As the Department of Education has noted,\4\ waivers
obtained under Ed-Flex give districts the freedom to first
envision what their educational system should look like, and
then determine what statutory and regulatory barriers inhibit
this vision from becoming a reality. It provides school
districts with an incentive to think ``outside the box'' and
focus federal resources more effectively and efficiently to
support student achievement. Schools and districts can better
take into consideration the needs of students to determine
where and how resources should be allocated to improve
performance. The current arrangement of separate, inflexible
funding streams places the emphasis on process rather than on
student achievement results.
---------------------------------------------------------------------------
\4\ Appendix B: Education Flexibility Demonstration Program (Ed-
Flex), Goals 2000: Reforming Education to Improve Student Achievement,
Department of Education, April 30, 1998.
---------------------------------------------------------------------------
Some specific examples of this use of Ed-Flex are worth
noting. Oregon, using Ed-Flex authority, simplified its
planning and application structure so that school districts can
develop a single plan that meets state planning requirements,
consolidates the application for federal funds, and requests
waivers of both federal and state requirements.
Kent County, Maryland found, after looking at assessment
results and other indicators for students at two elementary
schools, that their greatest need was for better planning and
coordination of student support services and improved reading
and math instruction in the two schools. Each school had a
poverty rate slightly below the 50 percent threshold
requirement for schoolwide programs, and was able to obtain a
waiver under Ed-Flex to conduct schoolwide programs. As a
result, they were able to better plan and coordinate programs
for the entire schools, not just a segment of the population.
The testimony of Dr. Lorraine Costella, the Superintendent for
Kent County confirmed these improvements at a hearing of the
Subcommittee on Early Childhood, Youth and Families on February
25, 1999. In addition, Costella noted that one of the two
schoolwide schools (Rock Hall Elementary), which incidentally
now has 60 percent poverty, has the third highest test scores
in the state of Maryland on the state assessment.
Finally, Greg Stubbs of the Ohio Department of Education,
in noting the benefits of Ed-Flex, stated in his testimony
before the Committee that
The greatest benefit to having Ed-Flex authority is
that it, combined with the ability to waive State rules
and statute[s], establishes a school-planning
environment unencumbered by real or perceived
regulatory barriers. This environment encourages
creativity, thoughtful planning, and innovation. School
improvement plans created in the absence of regulatory
barriers are more likely to be faithfully implemented.
Reducing bureaucracy
Ed-Flex has enabled the 12 pilot states to waive burdensome
administrative requirements and eliminate excessive paperwork
requirements. In Texas, for example, nearly 4,000
administrative waivers have been granted to districts for
several general administrative Federal regulations. One example
of what this looks like is the requirement that a school
district obtain prior approval of the state before it can
transfer more than 10% of its total budget from within a given
program from one budget category to another (such as from
equipment to salaries). With Ed-Flex waiver authority, that
prior approval is not necessary. The result has been a
reduction in paperwork, and the freeing-up of time and
resources for other uses. The waiver of administrative
requirements, while indirectly related to improving
achievement, has made it possible to focus greater attention on
student achievement and less on meeting the various
requirements, some of which are not necessary, to ensure
program integrity.\5\
---------------------------------------------------------------------------
\5\ Ibid.
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Improving student performance
Third, Ed-Flex has been used to increase student
achievement. By focusing on academic accountability in exchange
for increased flexibility, Ed-Flex signals that academic
results are a far better measure of the effective use of
resources than are the specific processes and inputs used to
implement programs. Texas, for example, has used its Texas
Assessment of Academic Skills (TAAS) and other indicators to
report on student achievement within specific student
populations, districts, and schools. While Ed-Flex states are
only required to report student achievement results for schools
and districts that have had waivers for two school years, Texas
did so within one year. Their data has shown that performance
gains for African Americans, Hispanics and disadvantaged
students in districts utilizing Ed-Flex have exceeded those of
the state as a whole. The data also shows that the performance
gap on the state assessment between Caucasian and other student
groups closed at a faster rate between 1996 and 1997 for
schools and districts with Ed-Flex waivers.\6\
---------------------------------------------------------------------------
\6\ 6 Ibid.
---------------------------------------------------------------------------
On the whole, the majority of waivers under Ed-Flex have
been for Title I compensatory education requirements, and of
those waivers, most were made to allow schools below the 50
percent poverty threshold to become eligible to operate
schoolwide programs. Schools often seek these waivers because
operating a schoolwide program offers increased opportunities
to support comprehensive efforts to upgrade an entire school,
and thereby more effectively helping to improve the achievement
levels of the lowest achieving students. Schoolwides accomplish
this by allowing schools to commingle their funds from multiple
programs to carry out this whole-school approach.
The testimony \7\ of Madeleine Manigold, the coordinator of
State and Federal waivers for the Texas Education Agency,
states that preliminary test results in Texas show that Ed-Flex
schoolwide waivers have been very successful in improving
academic achievement for all populations of students in reading
and mathematics. In particular, for all Ed-Flex waivers under
Title I, Texas requires the school or district to make enough
gain each year so that in five years 90 percent of all
students, and 90 percent of all African American, Hispanic,
Caucasian and economically disadvantaged students will be
passing the state's assessment instruments in reading and math.
For the period 1996-1998, Texas achieved the Ed-Flex goal of 90
percent for all students and all groups of students--African
American, Hispanic, and economically disadvantaged. Even more
important is the fact that the performance gap is closing at
schools with Ed-Flex Title I schoolwide waivers at an even
greater rate than in the state of Texas as a whole, as earlier
mentioned.
---------------------------------------------------------------------------
\7\ Testimony of Madeleine Draeger Manigold, Coordinator of State
and Federal Waivers, Texas Education Agency, at hearing of Subcommittee
on Early Childhood, Youth and Families on February 25, 1999.
---------------------------------------------------------------------------
The state of Maryland has also had success with Title I
schoolwide programs. In Garrett County, an Ed-Flex waiver was
granted which allowed the district to lower the 50 percent
threshold required for schoolwides to 45 percent at two
elementary schools. Under the waiver, both schools reassigned
Title I-funded teachers to the primary grade levels during
reading and language arts instruction, thereby reducing the
teacher to student ratio to approximately 1 to 15 for the
instructional time. Additionally, out of recognition of the
need for increased content knowledge of teachers in
mathematics, the schools have begun employing teacher
specialists in this critical area. Each year the Garrett County
schools administer the Comprehensive Test of Basic Skills (also
known as TerraNova) to students in grades 2, 4, 6, and 11. Both
of the elementary schools with schoolwide projects have shown
achievement gains well above national averages.
Two additional frequently-sought waivers are for within-
district allocations of Title I funds and for the use of Title
II Eisenhower Professional Development funds to support subject
areas other than math and science. Waivers for within-district
allocations of Title I dollars enable a district to allocate
Title I funds to schools on the basis of educational needs,
which do not always perfectly correlate with the number of
economically disadvantaged children attending a school.
Generally, these Title I waivers are made to target the funds
more directly to areas where achievement is low or to provide
temporary services to a school that will soon be affected by
changes in school boundaries.
At current funding levels, the Eisenhower Professional
Development Program requires that a majority of its funds be
used for math and science purposes. We expect this will largely
continue to be followed, but Ed-Flex allows districts to
request that this requirement of the program be waived to
enable a district to first identify the subject areas where
achievement is low and to prioritize professional development
in these areas. Often a district utilizes the waiver to bolster
training for teachers in reading. It should be noted that the
district is held accountable for ensuring that reading scores
improve while scores for math and science are maintained or
improved.\8\ In Texas, for example, the expectation is that
each district will make an annual gain in mathematics for all
students and for each student group. Ohio does not grant such
waivers to districts with math and science test scores below a
certain threshold.
---------------------------------------------------------------------------
\8\ Appendix B: Education Flexibility Demonstration Program (Ed-
Flex), Goals 2000: Reforming Education to Improve Student Achievement,
Department of Education, April 30, 1998.
---------------------------------------------------------------------------
The Committee believes that in order for states and local
school districts to be as effective as possible, they should
not be hamstrung by relatively small Federal funding streams
that generate disproportionate amounts of paperwork and
requirements. The Federal government should reward good
performance, not compliance. To that end, states should
ultimately be given the freedom to determine how to spend
Federal funds to raise student achievement according to the
needs of their students in exchange for increased
accountability for producing results. Ed-Flex is an important
first step in this direction. However, it represents only a
modest step forward because it only applies to a portion of K-
12 programs, and does not give states flexibility to
consolidate funds to better coordinate them with state efforts
to improve achievement.
How H.R. 800 Strengthens Accountability
GAO Report on Ed-Flex implementation: More accountability
needed to ensure results
On its own, Ed-Flex is a relatively limited program that
allows within-program flexibility, but does not provide for
program fund consolidating or optional block granting to school
districts. Consequently, in order for it to be most effective
it must be a component of a larger plan to improve student
achievement. Apart from a comprehensive state reform effort,
Ed-Flex on its own it cannot effect enough change to warrant
the expectation that student performance will improve.
Under current law, states are not required to demonstrate
that student performance is improving to maintain their Ed-Flex
status. Consequently, GAO found that within certain states,
objectives and goals were more subjective and less quantifiable
in terms of student achievement. The state of Texas, however,
has served as a model of how accountability should operate
under Ed-Flex. It tracks the performance of students affected
by such waivers and has found that students are performing
well. Therefore, in order to encourage similar tracking of
results, H.R. 800 requires states and locals to outline
specifically in their applications measurable performance
objectives, how they intend to measure these objectives, and to
submit this information to the Secretary.
Eligibility
In order for states to be eligible for Ed-Flex they must
meet certain requirements. First of all, they must either have
implemented their Title I plan, or have made substantial
progress towards doing so, as determined by the Secretary. This
means that states must have either: (1) developed and
implemented their Title I content and performance standards and
their assessments; or, (2) developed and implemented content
standards and interim assessments, and have made substantial
progress towards implementing performance standards and aligned
assessments as required by Title I. The Committee view is that
these elements must be in place in order for a state to
adequately ensure that disadvantaged students are making
adequate performance gains under Ed-Flex. States must also
agree to hold local educational agencies and schools
accountable for meeting goals they set as part of the waiver
application process.
In order to encourage comprehensive flexibility, state
education agencies must also be able to waive either their
state statutes or regulations to be eligible for Ed-Flex. They
are not required to have the authority to waive both. This
requirement gives states the incentive to reduce state
regulatory and statutory burdens upon local schools. In
addition, sometimes state regulations or statutes duplicate
federal regulations such that both must be waived for a local
applicant to be able to implement their reform plan.
In states such as Arizona, whose SEA is defined as the
state board of education, the authority of the state board to
waive regulations should be considered sufficient state waiver
authority to be considered eligible for Ed-Flex.
Application process
In order to ensure that states and local applicants set
measurable performance goals that specifically measure the
performance of LEAs, schools and students affected by waivers,
the Committee has added additional accountability language to
the original Ed-Flex authority.
State applications
H.R. 800 provides that states must demonstrate that they
have adopted an education flexibility plan for the state. They
must describe how they will evaluate local waiver applications,
and what state requirements the SEA intends to waive. In their
applications they must describe what specific objectives they
intend to meet, and how they intend to measure the progress of
LEAs and hold them accountable to meet their own specific
waiver objectives.
Applications submitted to the Secretary will be evaluated
according to the degree to which the plan will assist them in
carrying out comprehensive education reform. The objectives
must be measurable and specific, and measure the performance of
schools, LEAs or groups of students affected by these waivers.
Tracking performance measures helps to ensure that federal
programs are improving student performance, and that students
who might have otherwise received direct services without the
waiver continue to improve.
For example, the state of Texas reports the test scores of
students affected by schoolwide waivers by race and whether
students are economically disadvantaged in order to ensure that
all students are making gains. Their waiver board at the state
level also helps to set performance standards for individual
waiver requests in order to measure their progress. Texas
school districts with declining performance for two consecutive
years are subject to having their waiver terminated.
Any anticipated changes in state assessments should be
detailed in a State's application, and should include a
description of the steps they will take to provide the
Secretary with adequate and reliable performance data to
properly evaluate the progress of student performance measures.
The Secretary will also consider the comprehensiveness and
quality of their plan, and the significance of the state
regulatory or statutory requirements that will be waived, and
the quality of the approval process they intend to have in
place.
States that wish to request the authority to issue
statewide waivers must specifically request this authority when
they submit their application to the Secretary. States with
this authority, such as Texas and Ohio, have generally had more
success in integrating Ed-Flex with their state reform efforts.
Local applications
LEAs and individual schools can submit waiver applications
to their state education agencies. As part of their
application, local applicants must describe why they want such
a waiver and the overall results they expect. Such a
requirement is in keeping with the purpose of Ed-Flex in
assisting LEAs and schools to remove roadblocks to implementing
reform, not providing piecemeal regulatory relief. Local
applicants must also set specific and measurable goals to
achieve on an annual basis.
Local applicants are required to measure the performance of
schools and groups of students affected by waivers. For
example, if a district requests a waiver to allocate additional
Eisenhower Professional Development Funds to train teachers in
effective reading instruction methods, it should monitor the
performance of students in math and science to ensure that they
maintain or increase their performance
In setting specific, measurable performance objectives,
local applicants may distinguish between administrative
waivers, which indirectly affect student performance, and
programmatic waivers, which directly affect student
performance. Performance objectives should be appropriate to
the waivers requested.
Federal oversight under H.R. 800
The Secretary has several means by which to exercise
oversight over a State's use of their Ed-Flex authority.
Monitoring provisions
States are annually required to monitor the progress of
local waiver recipients, and submit an annual report of their
findings to the Secretary. Two years after receiving their Ed-
Flex authority, states must include performance data in their
annual reports in order to demonstrate how much progress has
been made towards meeting their educational objectives outlined
in their applications. This performance data should include,
but is not limited to, student achievement data for the groups
of students, schools and districts affected by waivers. States
should include information on the number and types of waivers
granted. Moreover, states should ensure that this data is
consistent over the five-year period of their waiver authority.
Performance review
The Committee strengthened language under this section to
ensure that the Secretary conducts a performance review three
years after a state is designated as an Ed-Flex state. As part
of this review, the Secretary can terminate a state's authority
to grant waivers if the state has not made measurable progress
towards reaching its stated objectives, after proper notice and
opportunity for a hearing.
Application to renew Ed-Flex status
H.R. 800 holds states accountable for results by requiring
the Secretary to consider state performance before renewing
their Ed-Flex status. States that fail to produce measurable
results can lose their Ed-Flex authority.
The Secretary is authorized to designate states as Ed-Flex
states for up to five years. Once the authority has expired,
states that wish to continue to participate in this program
must request permission. In deciding whether to extend a
states' request, the Secretary will review the degree to which
a state has made measurable progress toward meeting the
objectives submitted in their application. The Secretary will
also review the state's track record in ensuring that local
applicants meet their performance objectives.
Authority of current Ed-Flex States remains the same under
H.R. 800
The authority of the twelve States with Ed-Flex under
existing law will not be affected until they apply to renew
their Ed-Flex status. When these states apply to receive
approval from the Secretary to continue their Ed-Flex waiver,
they will then be required to meet the requirements of this
legislation. However, the Secretary shall evaluate the progress
these states have made toward achieving their objectives under
Ed-Flex according to the statute under which they originally
received their Ed-Flex authority.
New program to which Ed-Flex applies under H.R. 800
Current law allows the 12 pilot states to use Ed-Flex
waiver authority for the following Federal Elementary and
Secondary Education Act programs: (1) Title I assistance to the
educationally disadvantaged; (2) Title II Eisenhower
professional development state grants; (3) Title IV Safe and
Drug Free Schools grants; (4) Title VI education block grant;
(5) Title VII Emergency Immigrant Education Act grants; and (6)
the Carl Perkins Vocational and Applied Technology Education
Act grants. A characteristic common to each of these programs
is that they are state-administered, formula grant, Federal K-
12 education programs. Section 4(b) of H.R. 800 would expand
the current law's list of programs to also include the
Technology Literacy Challenge Fund, another state-administered,
formula grant, Federal education program. This program was not
authorized when Ed-Flex was first authorized in 1994.
Requirements that cannot be waived under H.R. 800
Finally, it should be noted that several elementary and
secondary education requirements may not be waived. Those
requirements are maintenance of effort, comparability of
services, equitable participation by private school pupils and
teachers, parental involvement, and the allocation of funds to
States and LEAs. Section 4(c) of H. R. 800 adds to the list of
things that cannot be waived the use of funds to supplement and
not supplant, non-Federal funds, the selection of schools to
participate in Title I Part A unless a school's poverty rate is
within 5 percentage points of the lowest poverty rate of a
school that qualifies for Title I without a waiver, and
applicable civil rights requirements.
H.R. 800 protects civil rights
Even though civil rights requirements cannot not be waived,
they are specifically listed in the non-waivable section of the
bill. Civil rights laws are separate, independent freestanding
statutes and not part of the Federal elementary and secondary
education programs to which Ed-Flex applies. However, the
Committee wished to address this specifically to alleviate any
concern that Ed-Flex could in some way be used to subvert
federal civil rights requirements.
Protects high poverty schools
H.R. 800 gives local school districts the flexibility to
use federal funds to address their needs better and focus on
improving student achievement. However, with respect to Title
I, the Committee has taken certain steps to ensure that Ed-Flex
waivers can only be used to allocate funds to otherwise
ineligible schools if they are marginally (five percentage
points) below the lowest poverty rate of a school that
qualifies for Title I without a waiver. If a district wishes to
request a waiver to allocate funds to schools with poverty
rates that are not marginally below what is required, they
would still be able to request a waiver from the Federal
Department of Education.
The Citizens' Commission on Civil Rights issued a report on
Title I, which specifically addresses the issue of eligibility
and targeting waiver requests. While it only addresses the
Department's use of the ESEA waiver authority and not Ed-Flex
per-se, certain inferences can be made from the local waiver
requests. Most of the waivers were for schools that were very
close to qualifying for Title I services, and districts
requesting such waivers were usually small so the overall
fiscal impact was somewhat limited. Overall, the Commission
found that the Department generally made reasonable case-by-
case waiver determinations and required that the needs of the
higher poverty schools would be adequately addressed. It also
found that these waivers ``did not seriously undermine the
statute's intent to target aid to poor children.''
H.R. 800 requires local school districts to measure the
performance of schools and groups of students affected by
waivers. Therefore, when school districts allocate funds to
schools within five percent of the qualifying Title I school
with the lowest poverty, they will be required to demonstrate
that disadvantaged students in all affected schools continue to
improve their performance.
Ed-Flex: Focusing Federal programs on students and results
Although Ed-Flex is a relatively small, limited program, it
can serve as a catalyst at the local level to effect meaningful
change in the classroom by creating a climate of innovation and
reform, and by focusing resources on students, not process. The
commitment that teachers, parents, and administrators must make
to request a waiver, the meaningful planning that takes place
when local educators have the flexibility to design and
implement their own programs based upon the needs of students
in their communities, and the use of the data on each student
group to evaluate the results, all work together to bring this
about.
Ed-Flex gives states more freedom to design their own
reform efforts to meet their needs and not merely follow the
contours of federal requirements at every turn. In the end,
what matters are results. H.R. 800 provides all states with the
opportunity to focus federal programs on results and implement
effective education reforms to produce them.
SECTION-BY-SECTION ANALYSIS
Section 1--gives the short title of the act as the
``Education Flexibility Partnership Act of 1999''.
Section 2--states the Findings for the Act.
Section 3--Definitions.
(1) Term ``Attendance Area'' is used as defined by
ESEA of 1965.
(2) ``Ed-Flex Partnership State'' means an eligible
state.
(3) References to ``Local Educational Agency'' and
``State Educational Agency'' have the meaning given
such terms in section 14101 of the Elementary and
Secondary Education Act of 1965.
(4) References to ``Secretary'' refer to the
Secretary of Education.
(5) References to ``State'' means each of the 50
states, the District of Columbia, Puerto Rico, and the
outlying areas.
Section 4--Describes the Education Flexibility Partnership.
(a) Authorizes the Education Flexibility Program.
(1) authorizes the Secretary to carry out an
education flexibility program and designate states as
``Ed Flex Partnership States.''
(2) states the eligibility requirements for a state
to become an ``Ed-Flex Partnership State''.
(a)(3) Describes the process by which states apply to
the Secretary to become an Ed-Flex state and the
criteria by which applications are evaluated.
(4) Describes the process by which local school
districts can apply to their state educational agency
to request federal and state statutory or regulatory
waivers and the criteria by which applications are
evaluated.
(5) States that each participating state educational
agency will monitor waiver recipients and submit an
annual report containing performance data to the
Secretary.
(6) States that the Secretary will not approve state
applications for a period longer than five years and
that the Secretary shall conduct a performance review
three years after a state is designated as an Ed-Flex
Partnership State.
(7) Authorizes the program from fiscal year 1999
through 2004.
(b) Sets forth the programs included in this Act as Title
I, Part B of Title II; Title III, Subpart 2 of part A; Title
IV, Title VI, and Title VII, of the Elementary and Secondary
Education Act of 1965, and the Perkins Vocational and Applied
Technology Education Act.
(c) Describes the waivers not authorized by this act.
(d) States that this act does not apply to current Ed-Flex
states until their authorization expires.
(e) Describes the evaluation criteria for which state
educational agencies are held accountable when the Secretary
decides whether to renew a request for a State's authority to
issue waivers.
(f) States that the Secretary's decision to grant states
waiver authority shall be published in the Federal Register.
(g) Sets the effective dates of this Act to begin on
enactment and to end on the enactment of the reauthorization of
the Elementary and Secondary Education Act.
EXPLANATION OF AMENDMENTS
The Amendment in the Nature of a Substitute is explained in
the body of this report.
APPLICATION OF LAW TO THE LEGISLATIVE BRANCH
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch. This bill makes all fifty states eligible for the
Education Flexibility Partnership Demonstration Program. The
bill does not prevent legislative branch employees from
receiving the benefits of this legislation.
UNFUNDED MANDATE STATEMENT
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandates Reform Act, P.L. 104-4) requires a statement of
whether the provisions of the reported bill include unfunded
mandates. This bill makes all fifty states eligible for the
Education Flexibility Partnership Demonstration Program. As
such, the bill does not contain any unfunded mandates.
ROLLCALL VOTES
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee Report to include for
each record vote on a motion to report the measure or matter
and on any amendment offered to the measure of matter the total
number of votes cast for and against and the names of the
Members voting for and against.
correspondence
House of Representatives,
Washington, DC, March 4, 1998.
Hon. William F. Goodling,
Chairman, Committee on Education and the Workforce, Rayburn House
Office Building, Washington, DC.
Dear Mr. Chairman: On roll call vote number four, regarding
reporting H.R. 800 to the House floor, I was unavoidably
detained due to legislative duties. Had I been present, I would
have voted aye.
I would appreciate this letter being inserted into the
Committee's report. Thank you for your attention to this
matter.
Sincerely,
Charlie Norwood, Member of Congress.
------
House of Representatives,
Washington, DC, March 3, 1999.
Hon. William Goodling,
Chairman, Committee on Education and the Workforce, Rayburn House
Office Building, Washington, DC.
Dear Mr. Chairman: On roll call vote number four, regarding
reporting H.R. 800 to the House floor, I was unavoidably
detained due to legislative duties. Had I been present, I would
have voted aye.
I would appreciate this letter being inserted into the
Committee's report. Thank you for your attention to this
matter.
Very truly yours,
Bob Schaffer, Member of Congress.
------
House of Representatives,
Washington, DC, March 3, 1999.
Hon. William F. Goodling,
Chairman, Committee on Education and the Workforce, Rayburn House
Office Building, Washington, DC.
Dear Mr. Chairman: On roll call vote number four, regarding
H.R. 800 to the House floor, I was unavoidably detained due to
legislative duties. Had I been present, I would have voted aye.
I would appreciate this letter being inserted into the
Committee's report. Thank you for your attention to this
matter.
Sincerely,
Vernon J. Ehlers, Member of Congress.
STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF THE COMMITTEE
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the body of this report.
NEW BUDGET AUTHORITY AND CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
With respect to the requirements of clause 3(c)(2) of rule
XIII of the House of Representatives and section 308(a) of the
Congressional Budget Act of 1974 and with respect to
requirements of 3(c)(3) of rule XIII of the House of
Representatives and section 402 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for H.R. 800 from the Director of the Congressional Budget
Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, March 5, 1999.
Hon. William F. Goodling,
Chairman, Committee on Education and the Workforce,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed revised cost estimate for H.R. 800, the
Education Flexibility Partnership Act of 1999.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Josh O'Harra.
Sincerely,
Barry B. Anderson,
(For Dan L. Crippen, Director).
Enclosure.
H.R. 800--Education Flexibility Partnership Act of 1999
Summary: H.R. 800 would implement a nationwide policy
allowing the Department of Education to delegate to states a
portion of its waiver-granting authority. Under this bill,
state education agencies could decide whether particular school
districts could waive requirements imposed by certain federal
regulations. Currently, education flexibility waivers are
available to 12 states for demonstration purposes.
CBO estimates that this bill would have no budgetary
impact. H.R. 800 contains no private-sector or
intergovernmental mandates as defined in the Unfunded Mandates
Reform Act (UMRA). Any costs to state and local governments
resulting from enactment of the bill would be incurred
voluntarily. Tribal governments would not be affected by the
provisions of H.R. 800.
Basis of estimate: H.R. 800 would require that states meet
two criteria in order to qualify for waivers. First, states and
districts must have in place, or be making substantial progress
toward, the standards and assessments described in Title I of
the Elementary and Secondary Education Act (ESEA). Second,
state education agencies must have the ability to modify their
own regulatory or statutory requirements to make them
consistent with the federal waivers they grant.
The bill would allow states to waive the requirements of
seven education programs: titles I, IV, and VI of ESEA; part B
of title II of ESEA; subpart 2 of part A of title III of ESEA;
part C of title VII of ESEA; and the Carl D. Perkins Vocational
and Technical Education Act.
The waivers would neither affect the total amount of a
state's federal grant nor the state's allocation among
competing districts but could change the allocation received by
the schools within a given district.
Pay-as-you-go considerations: None.
Intergovernmental and private-sector impact: H.R. 800
contains no private-sector or intergovernmental mandates as
defined in UMRA. The bill would allow officials in all 50
states to participate in the education flexibility partnership.
Twelve states now participate in the education flexibility
demonstration program, which gives state officials the
authority to temporarily free individual school districts from
certain requirements under specified federal education grant
programs. Participation in these programs would be voluntary,
as would any associated costs. Tribal governments would not be
affected by the provisions of this bill.
Previous CBO estimates: On March 4, 1999, CBO provided an
estimate of this bill. The current estimate revises the earlier
one, by deleting incorrect references to the Goals 2000 program
and to any redistribution of funds among school districts.
Neither estimate contains a budgetary impact.
On February 10, 1999, CBO estimated S. 280, the Education
Flexibility Partnership Act of 1999. That bill had no budgetary
impact.
Estimate prepared by: Federal Cost: John O'Harra; Impact on
State, Local, and Tribal Governments: Susan Sieg; and Impact on
the Private Sector: Nabeel Alsalam.
Estimate approved by: Paul N. Van de Water, Assistant
Director for Budget Analysis.
STATEMENT OF OVERSIGHT FINDINGS OF THE COMMITTEE ON GOVERNMENT REFORM
With respect to the requirement of clause 3(c)(4) of rule
XIII of the Rules of the House of Representatives, the
Committee has received no report of oversight findings and
recommendations from the Committee on Government Reform on the
subject of H.R. 800.
CONSTITUTIONAL AUTHORITY STATEMENT
Under clause 3(d)(1) of rule XIII of the Rules of the House
of Representatives, the Committee must include a statement
citing the specific powers granted to Congress in the
Constitution to enact the law proposed by H.R. 800. The
Committee believes that the Education Flexibility Partnership
Demonstration Program and the amendments thereto made by this
bill are within Congress' authority under Article I, section 8,
clause 1 of the Constitution.
COMMITTEE ESTIMATE
Clause 3(d)(2) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs that would be incurred in carrying out
H.R. 800. However, clause 3(d)(3)(B) of that rule provides that
this requirement does not apply when the Committee has included
in its report a timely submitted cost estimate of the bill
prepared by the Director of the Congressional Budget Office
under section 402 of the Congressional Budget Act.
CHANGES IN EXISTING LAW
There are no changes to existing law made by this bill.
MINORITY VIEWS
H.R. 800, the Education Flexibility Partnership Act,
authorizes States to waive Federal statutory and regulatory
provisions of certain Federal education programs. We support
flexibility in the administration of Federal education
programs, but only if coupled with strong accountability
provisions, and an emphasis on serving poor children. H.R. 800
fails on both accounts. H.R. 800 provides inadequate
accountability to ensure valid and reliable reporting and
increased student achievement. Additionally, the bill would
allow States to significantly diminish the mission of Title I,
which is to serve our poorest schools and children first.
We are pleased that the latest data from the National
Assessment of Education Progress (NAEP) showed that 9-year olds
in the poorest schools improved their reading scores by eight
points or almost one grade level between 1992 and 1998. In
addition, in the recently released report, Promising Results,
Continuing Challenges, the achievement of elementary school
students in high poverty schools in 4 out of 5 states in
mathematics and in 5 out of 6 States in reading improved. Also,
10 out of 13 urban districts showed increases in the percentage
of elementary students in the highest-poverty schools achieving
in math and reading. Secretary Riley believes that these
results from 6 States and 13 urban school districts are
attributable to Title I assistance.
These indicators of measurable success should only serve to
broaden our commitment to increasing investment in public
schools, to continue our targeting to the poorest children, and
to insist on greater accountability for results.
We think it is irresponsible to allow States to waive our
major elementary and secondary programs before we have even
begun the process of reauthorization. How does it make sense to
authorize waiving a law before it's drafted?
Other than an attempt by the Majority to score political
points, there is no urgency for this bill. Current law
authorizes Secretary Riley to waive Federal education laws, and
he has granted hundreds of such waivers. Secretary Riley
testified that he believes this measure should be considered
with the overall ESEA reauthorization. Further, the GAO
recently reported that the Department of Education has
insufficient information to assess the Ed-Flex Pilot that
allowed waivers in 12 states. And recently, the Leadership
Conference on Civil Rights wrote that Ed-Flex, as drafted,
``could undermine the fundamental objectives of Title I.''
Title I targeting
Under H.R. 800, States which receive Ed-Flex authority may
allow waivers of both the threshold for schools to operate
``schoolwide programs,'' and provisions which require school
districts to send higher per-pupil allocations to needy
schools. Presently, the Title I statute allows schools with at
least 50 percent of their children from low-income families to
operate a schoolwide program. Schoolwide programs allow schools
with high concentrations of poverty to combine funding from
various Federal education programs with the goal of enacting
whole school reform aimed at increasing the educational
achievement of all students. This provision has been a vital
reform in Title I schools with high percentages of poor
children because it allows schools to coordinate efforts among
Federal programs targeted at the most needy children that would
not happen without such authority. Unfortunately, this bill
would allow waivers for schools with practically zero poor
children to implement schoolwide programs and neglect the needs
of disadvantaged children. Congressmen Scott and Payne offered
an amendment to prohibit the approval of waivers which allowed
schools with less than 35 percent poverty from operating a
schoolwide program. This amendment failed on a party-line vote.
Under current law, if a school district sends funds to
schools with less than 35 percent of their students from low-
income families, they must allocate, to each school, a 125
percent per-pupil allocation. This prevents school districts
from succumbing to political pressure to spread Title I funding
too thinly. Very simply, the waiver of the 125 percent
provision will mean that higher poverty schools will receive
substantially less in funding. While the introduced bill would
have addressed this issue, the manger's package of amendments
removed language that would have prevented a waiver of this
provision.
This bill would also allow school districts to waive the
requirement that prohibits giving wealthier schools more per
student than poorer schools.
The Majority claims that H.R. 800 will not reduce funding
for poor children. In fact, with the lack of data on Ed-Flex
justifying its expansion, we presently know little about the
impact of waiving Title I targeting provisions. However, an
initial report from the Department of Education found that
waivers reduced funds for poor children by 18 percent in 1995-
96. If this trend was extended nationwide, it would have a
devastating effect on our most disadvantaged school children.
Accountability
The Majority claims that this legislation provides the
proper balance between accountability and flexibility--
demanding results without dictating how to achieve them. While
the Committee reported bill is improved in this respect over
the introduced version, we believe the accountability
provisions in this legislation must be strengthened.
Representatives Miller and Kildee offered three amendments
to improve the accountability provisions in this legislation.
The first amendment would require States, in order to be
eligible to participate in Ed-Flex, to have their content and
performance standards and aligned assessments required under
the Title I statute in place. In addition,this amendment would
reinforce that assessments should be designed to measure change in
student performance from year to year and disaggregate data based on
categories of at-risk children. Lastly, the amendment would require
States to hold LEAs accountable for both State level and local level
educational objectives and goals required by the Act, including closing
the achievement gap between disadvantaged students and their peers.
This amendment is based on the Texas statute and seeks to
adopt the sensible accountability provisions that have made the
Texas model so successful, especially at driving increases in
the achievement of at-risk youth. Its requirement to set
numerical goals and disaggregate data are essential to
measuring the achievement of all students. The Majority
rejected this amendment.
The second amendment would require States to report on the
specific characteristics of waivers they issue and their impact
on student performance. States, in reporting this data to the
Secretary in the State's annual report, would have to certify
the data as valid and reliable or state how they will attempt
to make such data reliable and valid in the future. The
Secretary, in reporting to Congress, would also have to assess
the validity and reliability of the data. The Majority rejected
this amendment.
This amendment was written in close collaboration with the
Inspector General's Office (IG) of the Department of Education
and addressed one of the key findings of a November General
Accounting Office (GAO) Report.\1\ The focus of the Inspector
General, both in a recent report to this Committee and in
compliance with the Government Performance and Results Act, has
been to ensure programmatic data is valid and reliable. This
amendment would not only seek to fill in the gaps that GAO and
the Department have identified in reporting on Ed-Flex, but
would also seek to ensure that the enhanced reporting we would
receive under this bill would contain data that would allow us
to accurately judge program results. Included in these views
are two letters, one from the IG expressing support for this
amendment and the other from Representatives Armey and Horn to
the IG supporting the concept of valid and reliable
programmatic data. This amendment was withdrawn with a
commitment between Chairmen Goodling and Castle and
Representatives Roemer and Miller to work out differences prior
to floor consideration of this legislation.
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\1\ GAO/HEHS-99-17.
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The third amendment would require States to terminate
waivers issued to school districts which experience two
consecutive years of decreasing academic performance after
notice and opportunity for a hearing. This amendment was
adopted by voice vote.
All of these amendments attempt to strengthen the
accountability in this legislation and ensure that this program
produces results. Taxpayers are entitled to receive strong
accountability for the Federal educational investments. This
bill will provide most States with new, sweeping authority to
waive Federal law. Given that the Federal government will
invest an additional $50 billion in education funding over the
next several years, these accountability provisions are quite
appropriate.
ESEA reauthorization
This Congress, we are scheduled to reauthorize the
Elementary and Secondary Education Act (ESEA), the National
Assessment Governing Board, the National Assessment of
Education Progress, the Office of Educational Research and
Improvement, and other related elementary and secondary
education programs. Presently, these programs address a wide
array of critical educational needs: the education of
disadvantaged children, professional development for teachers,
technology in classrooms, high quality research aimed at
improving instructional practices and safety in our schools. In
total, our work this year will involve the review of the bulk
of the Federal elementary and secondary education arena.
Unfortunately, our consideration of this bill prior to a
thoughtful and comprehensive review of these programs simply
puts the cart before the horse. Allowing the waiver of existing
program provisions prior to our review of their importance
makes little sense. How can this Committee determine what
provisions should be waived without first deciding what these
provisions are supposed to accomplish?
To address this situation, Representative Kildee offered an
amendment to sunset this legislation's authority once the ESEA
is reauthorized. Specifically, the Kildee amendment will
terminate the authority provided in this bill when legislation
is passed, presumably later this Congress, to reauthorize ESEA.
This will require Congress to review the authority provided in
this legislation during our work on ESEA and make adjustments
should we find this bill inconsistent with our final policy
decisions. The Kildee amendment was adopted by voice vote.
Clinton/Clay Class Size Reduction Act
During the markup, Representative Wu offered an amendment
to authorize the Clinton/Clay Class Size Reduction Act. We are
disappointed that the Majority used a parliamentary device to
avoid passing this urgent priority.
Last year, Congress made a down payment on President
Clinton's plan to hire 100,000 new teachers over 7 years in
order to reduce the average class size to 18 students in the
early grades. We ought to send the message to these communities
that we intend to fulfill this commitment by authorizing this
initiative.
Conclusion
We believe that H.R. 800, in its present form, lacks
sufficient accountability, reporting requirements, and will
jeopardize the long-standing mission of Title I to assist in
the education of disadvantaged children. In addition, this
legislation should not be considered outside of a comprehensive
elementary and secondary reauthorization effort, as it allows
States to negate yet undecided Federal priorities. While the
Majority has sought to capitalize on the simplicity of the call
for more flexibility, we do not believe this should be at the
expense of targeting resources towards needy children or
eliminating our ability to ensure results from our Federal
investments in education.
William L. Clay.
Major R. Owens.
Patsy T. Mink.
Lynn Woolsey.
Chaka Fattah.
George Miller.
Donald M. Payne.
Bobby Scott.
John F. Tierney.
Dennis J. Kucinich.
ADDITIONAL VIEWS
While I supported final passage of H.R. 800, the Education
Flexibility Partnership Act of 1999, I want to voice several
concerns that must still be addressed in this legislation prior
to action by the House. The authors of H.R. 800 come close to
striking the proper balance between flexibility and
accountability. The bill could be improved, however, with the
inclusion of several provisions addressing the eligibility of
States, valid and reliable reporting requirements, and Title I
targeting.
During Committee consideration of this legislation, three
amendments were not adopted that would address the concerns I
have with this legislation. Congressman Miller and I offered
two of these amendments. The first amendment would have
required States to have their final assessments in place under
Title I and that these assessments disaggregate results of
categories of at-risk students and set numerical goals for
students with the specific aim of closing achievement gaps. The
second amendment sought to improve the validity and reliability
of, and expand upon, the existing reporting requirements of the
bill so we can get a better understanding of the impact of Ed-
Flex on student achievement.
The bill, as reported by Committee, does require States to
have interim assessments required by Title I in place, but
these assessments do not need to meet the disaggregation or
standards requirements required of final Title I assessments
which all States must have in place by the 2000-2001 school
year. Most importantly, little will be learned about Ed-Flex's
impact on student achievement or its success or failure, next
time this program is reviewed if we allow States to utilize
different categories of assessments and substantive data
reported by States under this program isn't valid and reliable.
The third critical amendment which was offered in
Committee, but failed, would prohibit States from approving
applications for schools to do schoolwide programs if they had
less than 35 percent poverty. Schoolwide programs, which allow
schools to combine and coordinate funding under various Federal
education programs, are utilized to do whole-school reform
aimed at improving the achievement of all students in a school.
This authority is appropriate when there is a high percentage
of low-income children in a school. However, it is not
appropriate to extend this authority to schools with relatively
few low-income students since resources will be expended on
children without special needs.
In total, I believe we need to more closely examine the
effects of Ed-Flex on the targeting of Title I resources.
Little is known of the extent to which Ed-Flex has altered
targeting of Title I funds to high-poverty schools, or what
impact this has had on student achievement. Fortunately, the
Committee approved my amendment to sunset Ed-Flex authority
when the next ESEA reauthorization bill is signed into law.
This will force the Committee to reexamine the effect of Ed-
Flex on Title I and student achievement generally.
As we proceed towards House action on this legislation, it
is my hope that differences on these three amendments can be
reconciled. While I believe that flexibility coupled with
sensible accountability can positively impact efforts to
increase student achievement, the issues encompassed by these
amendments would improve this legislation. It is important to
remember that expansion of Ed-Flex, from 12 existing States to
all 50, is new for most States. This bill will provide States
and school districts with increased flexibility, but we should
be careful to require sensible accountability that will lead to
students achieving high academic standards.
Harold E. Ford, Jr.
Dale E. Kildee.
ADDITIONAL VIEWS
H.R. 800, the ``Education Flexibility Partnership Act of
1999'', or ``Ed-Flex'' is an expansion of a demonstration
program that 12 states have successfully used to implement
reforms at the state and local level. This innovative program
moves the federal government towards developing a performance-
based, results oriented approach in education policy. It is a
``Third Way'' for federal education policy--a move away from
the restrictive requirements in programs that may handcuff
local schools, while strengthening the accountability that is
necessary in light of the significant investment that we make
in our children.
The ``Ed-Flex'' program has removed many federal and state
regulatory and statutory requirements that have hampered
creativity and innovation at the state and local level. Ed-Flex
will allow eligible States and local school districts to
experiment with innovative reforms in exchange for
demonstrating and improvement in student achievement.
In addition to fostering creativity and innovation at the
local level, States have effectively used Ed-Flex to facilitate
the seamless delivery of services to children. Ed-Flex helps
states better manage various federal and state programs that
may be duplicative at the local level. Some States, like
Oregon, have simplified the planning and application process,
while other States, such as Kansas, have used Ed-Flex to better
coordinate Title I and special education services.
The majority report notes the lack of sufficient data to
evaluate federal education programs. Additionally, the majority
has strongly encouraged federal agency efforts to develop and
implement, in coordination with agency Inspector Generals,
standards for determining progress towards performance goals
and program outcomes. In fact, the General Accounting Office
(GAO) raised concerns that the Ed-Flex program did not require
states and local education agencies to outline specific
performance goals and objectives. Subsequently, H.R. 800
responds to a number of these concerns, but additional language
about state and local level activity, in line with
recommendations related to the Government Performance and
Results Act (GPRA), should be adopted in H.R. 800 so that
Congress may effectively evaluate federal education programs,
including Ed-Flex.
Adequate data from the States and local education agencies
will also provide important information about the impact of Ed-
Flex on the Title I program. Under Ed-Flex, States and locals
are permitted to waive statutory requirements related to
allocation of Title I funds at the district level and the
poverty threshold for schoolwide programs. There is evidence
that more flexibility with the schoolwide poverty threshold can
show effective results. In Kent County, Maryland, Garnett
Elementary had a poverty threshold of 45 percent (which has
since increased to 55 percent), yet received an Ed-Flex waiver
to implement a schoolwide program. The school used the waiver
to develop early identification and special programs to meet
the needs of their minority children, and state assessment
results indicate that their African-American students are
quickly approaching the achievement level of the Caucasian
students. According to Dr. Lorraine Costella, who is the
Superintendent of Schools for Kent County Public Schools, the
third grade African-American males met the state standard, and
achieved a higher level in math on state assessments.
While some States have shown positive results from the use
of either the Ed-Flex or secretarial waiver authority for Title
I, not all 50 States have the necessary accountability systems
in place, nor has the Secretary or the Congress received
adequate data about the impact of these waivers. Therefore, it
is appropriate to adopt a provision in H.R. 800 to limit the
poverty threshold for the schoolwide program to 35%, which is
consistent with how the Secretary has used his waiver
authority.
Tim Roemer.
Harold E. Ford, Jr.
ADDITIONAL VIEWS OF REPRESENTATIVES RUSH HOLT OF NEW JERSEY
I support the overall goals of the Education Flexibility
Partnership Act--allowing local school districts flexibility to
use money where they need it most, in return for a greater
level of accountability.
I am concerned, however, that H.R. 800 as reported by the
Education and the Workforce Committee, may unintentionally
undermine the emphasis on math and science teacher training in
the Eisenhower Professional Development Program.
Through the Eisenhower Professional Development Program,
previous Congresses have ensured, both through law and through
allocation of money, that math and science teacher training
should be a priority. All students need a solid grounding in
these subjects to be productive in an increasingly
technological world. By the time they finish high school,
American students have fallen far behind their international
peers in these important subjects. We need to give them a
better competitive edge in these subjects if they are going to
succeed in the global economy. Clearly, Congress placed a
priority on math and science professional development in
allocation of these funds because math and science are two
areas where teachers have traditionally needed the most help.
The Eisenhower Professional Development Program is the main
federal program that helps teachers become better trained in
math and science. Because of the way that the math and science
priority is expressed in Title II, math and science
professional development could stand to lose significantly
through implementation of Ed Flex as it is currently written.
While I don't believe this is an intended change, the language
of the bill allows local schools to waive the math-science
priority in professional development with very little oversight
of how these important needs will be met.
I believe that Local Education Agencies who are applying
for a waiver of the math-science priority under the Eisenhower
Act should be required to explain in their application how the
professional development needs of their teachers in these vital
subject areas will be, or already are being met. This change
will preserve the importance of math science professional
development while still allowing LEA's to waive the math-
science priority if they need help in other areas. I believe
that this is a simple change, in keeping with the bill, and
maintains a needed focus on math and science education which
might be lost under the Education Flexibility Partnership Act
as it stands now. I am hopeful that this issue can be addressed
as H.R. 800 moves through the legislative process.