§7861. Waivers of statutory and regulatory requirements

(a) In general

(1) Request for waiver by State or Indian tribe

A State educational agency or Indian tribe that receives funds under a program authorized under this chapter may submit a request to the Secretary to waive any statutory or regulatory requirement of this chapter.

(2) Local educational agency and school requests submitted through the State

(A) Request for waiver by local educational agency

A local educational agency that receives funds under a program authorized under this chapter and desires a waiver of any statutory or regulatory requirement of this chapter shall submit a request containing the information described in subsection (b)(1) to the appropriate State educational agency. The State educational agency may then submit the request to the Secretary if the State educational agency determines the waiver appropriate.

(B) Request for waiver by school

An elementary school or secondary school that desires a waiver of any statutory or regulatory requirement of this chapter shall submit a request containing the information described in subsection (b)(1) to the local educational agency serving the school. The local educational agency may then submit the request to the State educational agency in accordance with subparagraph (A) if the local educational agency determines the waiver appropriate.

(3) Receipt of waiver

Except as provided in subsection (b)(4) or (c), the Secretary may waive any statutory or regulatory requirement of this chapter for which a waiver request is submitted to the Secretary pursuant to this subsection.

(b) Request for waiver

(1) In general

A State educational agency, acting on its own behalf or on behalf of a local educational agency in accordance with subsection (a)(2), or Indian tribe that desires a waiver shall submit a waiver request to the Secretary, which shall include a plan that-

(A) identifies the Federal programs affected by the requested waiver;

(B) describes which Federal statutory or regulatory requirements are to be waived;

(C) describes how the waiving of such requirements will advance student academic achievement;

(D) describes the methods the State educational agency, local educational agency, school, or Indian tribe will use to monitor and regularly evaluate the effectiveness of the implementation of the plan;

(E) includes only information directly related to the waiver request; and

(F) describes how schools will continue to provide assistance to the same populations served by programs for which waivers are requested and, if the waiver relates to provisions of subsections (b) or (h) of section 6311 of this title, describes how the State educational agency, local educational agency, school, or Indian tribe will maintain or improve transparency in reporting to parents and the public on student achievement and school performance, including the achievement of the subgroups of students identified in section 6311(b)(2)(B)(xi) of this title.

(2) Additional information

Such requests-

(A) may provide for waivers of requirements applicable to State educational agencies, local educational agencies, Indian tribes, and schools; and

(B) shall be developed and submitted-

(i)(I) by local educational agencies (on behalf of those agencies and schools) to State educational agencies; and

(II) by State educational agencies (on behalf of those agencies or on behalf of, and based on the requests of, local educational agencies in the State) to the Secretary; or

(ii) by Indian tribes (on behalf of schools operated by the tribes) to the Secretary.

(3) General requirements

(A) State educational agencies

In the case of a waiver request submitted by a State educational agency acting on its own behalf, or on behalf of local educational agencies in the State under subsection (a)(2), the State educational agency shall-

(i) provide the public and any interested local educational agency in the State with notice and a reasonable opportunity to comment and provide input on the request, to the extent that the request impacts the local educational agency;

(ii) submit the comments and input to the Secretary, with a description of how the State addressed the comments and input; and

(iii) provide notice and a reasonable time to comment to the public and local educational agencies in the manner in which the applying agency customarily provides similar notice and opportunity to comment to the public.

(B) Local educational agencies

In the case of a waiver request submitted by a local educational agency that receives funds under this chapter-

(i) the request shall be reviewed and approved by the State educational agency in accordance with subsection (a)(2) before being submitted to the Secretary and be accompanied by the comments, if any, of the State educational agency and the public; and

(ii) notice and a reasonable opportunity to comment regarding the waiver request shall be provided to the State educational agency and the public by the agency requesting the waiver in the manner in which that agency customarily provides similar notice and opportunity to comment to the public.

(4) Waiver determination, demonstration, and revision

(A) In general

The Secretary shall issue a written determination regarding the initial approval or disapproval of a waiver request not more than 120 days after the date on which such request is submitted. Initial disapproval of such request shall be based on the determination of the Secretary that-

(i) the waiver request does not meet the requirements of this section;

(ii) the waiver is not permitted under subsection (c);

(iii) the description required under paragraph (1)(C) in the plan provides insufficient information to demonstrate that the waiving of such requirements will advance student academic achievement consistent with the purposes of this chapter; or

(iv) the waiver request does not provide for adequate evaluation to ensure review and continuous improvement of the plan.

(B) Waiver determination and revision

Upon the initial determination of disapproval under subparagraph (A), the Secretary shall-

(i) immediately-

(I) notify the State educational agency, local educational agency (through the State educational agency), school (through the local educational agency), or Indian tribe, as applicable, of such determination; and

(II) provide detailed reasons for such determination in writing to the applicable entity under subclause (I) to the public, such as posting in a clear and easily accessible format to the Department's website;

(ii) offer the State educational agency, local educational agency (through the State educational agency), school (through the local educational agency), or Indian tribe an opportunity to revise and resubmit the waiver request by a date that is not more than 60 days after the date of such determination; and

(iii) if the Secretary determines that the resubmission under clause (ii) does not meet the requirements of this section, at the request of the State educational agency, local educational agency, school, or Indian tribe, conduct a hearing not more than 30 days after the date of such resubmission.

(C) Waiver disapproval

The Secretary may ultimately disapprove a waiver request if-

(i) the State educational agency, local educational agency, school, or Indian tribe has been notified and offered an opportunity to revise and resubmit the waiver request, as described under clauses (i) and (ii) of subparagraph (B); and

(ii) the State educational agency, local educational agency (through the State educational agency), school (through the local educational agency), or Indian tribe-

(I) does not revise and resubmit the waiver request; or

(II) revises and resubmits the waiver request, and the Secretary determines that such waiver request does not meet the requirements of this section after a hearing conducted under subparagraph (B)(iii), if such a hearing is requested.

(D) External conditions

The Secretary shall not disapprove a waiver request under this section based on conditions outside the scope of the waiver request.

(c) Restrictions

The Secretary shall not waive under this section any statutory or regulatory requirements relating to-

(1) the allocation or distribution of funds to States, local educational agencies, Indian tribes, or other recipients of funds under this chapter;

(2) maintenance of effort;

(3) comparability of services;

(4) use of Federal funds to supplement, not supplant, non-Federal funds;

(5) equitable participation of private school students and teachers;

(6) parental participation and involvement;

(7) applicable civil rights requirements;

(8) the requirement for a charter school under part C of subchapter IV;

(9) the prohibitions-

(A) in subpart 2 of part F;

(B) regarding use of funds for religious worship or instruction in section 7885 of this title; and

(C) regarding activities in section 7906 of this title; or

(10) the selection of a school attendance area or school under subsections (a) and (b) of section 6313 of this title, except that the Secretary may grant a waiver to allow a school attendance area or school to participate in activities under part A of subchapter I if the percentage of children from low-income families in the school attendance area or who attend the school is not more than 10 percentage points below the lowest percentage of those children for any school attendance area or school of the local educational agency that meets the requirements of subsections (a) and (b) of section 6313 of this title.

(d) Duration and extension of waiver; limitations

(1) In general

Except as provided in paragraph (2), a waiver approved by the Secretary under this section may be for a period not to exceed 4 years.

(2) Extension

The Secretary may extend the period described in paragraph (1) if the State demonstrates that-

(A) the waiver has been effective in enabling the State or affected recipient to carry out the activities for which the waiver was requested and the waiver has contributed to improved student achievement; and

(B) the extension is in the public interest.

(3) Specific limitations

The Secretary shall not require a State educational agency, local educational agency, school, or Indian tribe, as a condition of approval of a waiver request, to-

(A) include in, or delete from, such request, specific academic standards, such as the Common Core State Standards developed under the Common Core State Standards Initiative or any other standards common to a significant number of States;

(B) use specific academic assessment instruments or items, including assessments aligned to the standards described in subparagraph (A); or

(C) include in, or delete from, such waiver request any specific elements of-

(i) State academic standards;

(ii) academic assessments;

(iii) State accountability systems; or

(iv) teacher and school leader evaluation systems.

(e) Reports

A State educational agency, local educational agency, school, or Indian tribe receiving a waiver under this section shall describe, as part of, and pursuant to, the required annual reporting under section 6311(h) of this title-

(1) the progress of schools covered under the provisions of such waiver toward improving student academic achievement; and

(2) how the use of the waiver has contributed to such progress.

(f) Termination of waivers

The Secretary shall terminate a waiver under this section if, after notice and an opportunity for a hearing, the Secretary-

(A) presents a rationale and supporting information that clearly demonstrates that the waiver is not contributing to the progress of schools described in subsection (e)(1); or

(B) determines that the waiver is no longer necessary to achieve its original purposes.

(g) Publication

A notice of the Secretary's decision to grant each waiver under subsection (a) shall be published in the Federal Register and the Secretary shall provide for the dissemination of the notice to State educational agencies, interested parties, including educators, parents, students, advocacy and civil rights organizations, and the public.

(Pub. L. 89–10, title VIII, §8401, formerly title IX, §9401, as added Pub. L. 107–110, title IX, §901, Jan. 8, 2002, 115 Stat. 1972 ; renumbered title VIII, §8401, and amended Pub. L. 114–95, title VIII, §§8001(a)(4), 8013, Dec. 10, 2015, 129 Stat. 2088 , 2089, 2103.)

Editorial Notes

Prior Provisions

A prior section 7861, Pub. L. 89–10, title IX, §9141, as added Pub. L. 103–382, title I, §101, Oct. 20, 1994, 108 Stat. 3792 , related to national activities, prior to the general amendment of former subchapter IX of this chapter by Pub. L. 107–110.

Amendments

2015-Subsec. (a). Pub. L. 114–95, §8013(1), added subsec. (a) and struck out former subsec. (a). Prior to amendment, text read as follows: "Except as provided in subsection (c) of this section, the Secretary may waive any statutory or regulatory requirement of this chapter for a State educational agency, local educational agency, Indian tribe, or school through a local educational agency, that-

"(1) receives funds under a program authorized by this chapter; and

"(2) requests a waiver under subsection (b) of this section."

Subsec. (b)(1). Pub. L. 114–95, §8013(2)(A)(i), in introductory provisions, substituted "acting on its own behalf or on behalf of a local educational agency in accordance with subsection (a)(2)," for "local educational agency," and inserted ", which shall include a plan" after "to the Secretary".

Subsec. (b)(1)(B) to (E). Pub. L. 114–95, §8013(2)(A)(iii), added subpars. (B) to (E) and struck out former subpars. (B) to (D) which required a waiver request to contain a description of the Federal statutory or regulatory requirements to be waived, a description of the measurable educational goals for each school year affected by the waiver, and an explanation of how the waiver would provide assistance. Former subpar. (E) redesignated (F).

Subsec. (b)(1)(F). Pub. L. 114–95, §8013(2)(A)(ii), (iv), redesignated subpar. (E) as (F) and inserted "and, if the waiver relates to provisions of subsections (b) or (h) of section 6311 of this title, describes how the State educational agency, local educational agency, school, or Indian tribe will maintain or improve transparency in reporting to parents and the public on student achievement and school performance, including the achievement of the subgroups of students identified in section 6311(b)(2)(B)(xi) of this title" after "waivers are requested".

Subsec. (b)(2)(B)(i)(II). Pub. L. 114–95, §8013(2)(B), substituted "(on behalf of those agencies or on behalf of, and based on the requests of, local educational agencies in the State)" for "(on behalf of, and based on the requests of, local educational agencies)".

Subsec. (b)(3)(A). Pub. L. 114–95, §8013(2)(C)(i), inserted "or on behalf of local educational agencies in the State under subsection (a)(2)," after "acting on its own behalf," in introductory provisions, added cls. (i) to (iii), and struck out former cls. (i) to (iii) which read as follows:

"(i) provide all interested local educational agencies in the State with notice and a reasonable opportunity to comment on the request;

"(ii) submit the comments to the Secretary; and

"(iii) provide notice and information to the public regarding the waiver request in the manner in which the applying agency customarily provides similar notices and information to the public."

Subsec. (b)(3)(B). Pub. L. 114–95, §8013(2)(C)(ii), added cls. (i) and (ii) and struck out former cls. (i) and (ii) which read as follows:

"(i) the request shall be reviewed by the State educational agency and be accompanied by the comments, if any, of the State educational agency; and

"(ii) notice and information regarding the waiver request shall be provided to the public by the agency requesting the waiver in the manner in which that agency customarily provides similar notices and information to the public."

Subsec. (b)(4). Pub. L. 114–95, §8013(2)(D), added par. (4).

Subsec. (c)(1). Pub. L. 114–95, §8013(3)(A), inserted ", Indian tribes" after "local educational agencies".

Subsec. (c)(8). Pub. L. 114–95, §8013(3)(B), substituted "part C of subchapter IV" for "subpart 1 of part B of subchapter V".

Subsec. (c)(9). Pub. L. 114–95, §8013(3)(C), added par. (9) and struck out former par. (9) which read as follows: "the prohibitions regarding-

"(A) State aid in section 7902 of this title;

"(B) use of funds for religious worship or instruction in section 7885 of this title; and

"(C) activities in section 7906 of this title; or".

Subsec. (d). Pub. L. 114–95, §8013(4)(A), inserted "; limitations" after "waiver" in heading.

Subsec. (d)(2). Pub. L. 114–95, §8013(4)(B), substituted "State demonstrates" for "Secretary determines" in introductory provisions.

Subsec. (d)(3). Pub. L. 114–95, §8013(4)(C), added par. (3).

Subsec. (e). Pub. L. 114–95, §8013(5), added subsec. (e) and struck out former subsec. (e) which required certain reports to State educational agencies, the Secretary, and Congress concerning waivers under this section.

Subsec. (f). Pub. L. 114–95, §8013(6), substituted "if, after notice and an opportunity for a hearing, the Secretary-" for "if the Secretary determines, after notice and an opportunity for a hearing, that the performance of the State or other recipient affected by the waiver has been inadequate to justify a continuation of the waiver or if the waiver is no longer necessary to achieve its original purposes." and added pars. (A) and (B).

Statutory Notes and Related Subsidiaries

Effective Date of 2015 Amendment

Amendment by Pub. L. 114–95 effective Dec. 10, 2015, except with respect to certain noncompetitive programs and competitive programs, see section 5 of Pub. L. 114–95, set out as a note under section 6301 of this title.

National Emergency Educational Waivers

Pub. L. 116–136, div. A, title III, §3511, Mar. 27, 2020, 134 Stat. 400 , provided that:

"(a) In General.-Notwithstanding any other provision of law, the Secretary may, upon the request of a State educational agency or Indian tribe, waive any statutory or regulatory provision described under paragraphs (1) and (2) of subsection (b), and upon the request of a local educational agency, waive any statutory or regulatory provision described under paragraph (2) of subsection (b), if the Secretary determines that such a waiver is necessary and appropriate due to the emergency involving Federal primary responsibility determined to exist by the President under the [sic] section 501(b) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5191(b)) with respect to the Coronavirus Disease 2019 (COVID–19).

"(b) Applicable Provisions of Law.-

"(1) Streamlined waivers.-The Secretary shall create an expedited application process to request a waiver and the Secretary may waive any statutory or regulatory requirements for a State educational agency (related to assessments, accountability, and reporting requirements related to assessments and accountability), if the Secretary determines that such a waiver is necessary and appropriate as described in subsection (a), under the following provisions of law:

"(A) The following provisions under section 1111 of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 6311):

"(i) Paragraphs (2) and (3) of subsection (b).

"(ii) Subsection (c)(4).

"(iii) Subparagraphs (C) and (D) of subsection (d)(2).

"(iv) The following provisions under subsection (h) of such section 1111:

     "(I) Clauses (i), (ii), (iii)(I), (iv), (v), (vi), (vii), and (xi) of paragraph (1)(C).

     "(II) Paragraph (2)(C) with respect to the waived requirements under subclause (I).

     "(III) Clauses (i) and (ii) of paragraph (2)(C).

"(B) Section 421(b) of the General Education Provisions Act (20 U.S.C. 1225(b)).

"(2) State and locally-requested waivers.-For a State educational agency, local educational agency, or Indian tribe that receives funds under a program authorized under the Elementary and Secondary Education Act of 1965 (20 U.S.C. 6301 et seq.) that requests a waiver under subsection (c), the Secretary may waive statutory and regulatory requirements under any of the following provisions of such Act:

"(A) Section 1114(a)(1) [20 U.S.C. 6314(a)(1)].

"(B) Section 1118(a) [20 U.S.C. 6321(a)] and section 8521 [20 U.S.C. 7901].

"(C) Section 1127 [20 U.S.C. 6339].

"(D) Section 4106(d) [20 U.S.C. 7116(d)].

"(E) Subparagraphs (C), (D), and (E) of section 4106(e)(2) [20 U.S.C. 7116(e)(2)].

"(F) Section 4109(b) [20 U.S.C. 7119(b)].

"(G) The definition under section 8101(42) [20 U.S.C. 7801(42)] for purposes of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 6301 et seq.).

"(3) Applicability to charter schools.-Any waivers issued by the Secretary under this section shall be implemented, as applicable-

"(A) for all public schools, including public charter schools within the boundaries of the recipient of the waiver;

"(B) in accordance with State charter school law; and

"(C) pursuant to section 1111(c)(5) of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 6311(c)(5)).

"(4) Limitation.-Nothing in this section shall be construed to allow the Secretary to waive any statutory or regulatory requirements under applicable civil rights laws.

"(5) Accountability and improvement.-Any school located in a State that receives a waiver under paragraph (1) and that is identified for comprehensive support and improvement, targeted support and improvement, or additional targeted support in the 2019–2020 school year under section 1111(c)(4)(D) or section 1111(d)(2) of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 6311(c)(4)(D) or (d)(2)) shall maintain that identification status in the 2020–2021 school year and continue to receive supports and interventions consistent with the school's support and improvement plan in the 2020–2021 school year.

"(c) State and Local Requests for Waivers.-

"(1) In general.-A State educational agency, local educational agency, or Indian tribe that desires a waiver from any statutory or regulatory provision described under subsection (b)(2), may submit a waiver request to the Secretary in accordance with this subsection.

"(2) Requests submitted.-A request for a waiver under this subsection shall-

"(A) identify the Federal programs affected by the requested waiver;

"(B) describe which Federal statutory or regulatory requirements are to be waived;

"(C) describe how the emergency involving Federal primary responsibility determined to exist by the President under the [sic] section 501(b) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5191(b)) with respect to the Coronavirus Disease 2019 (COVID–19) prevents or otherwise restricts the ability of the State, State educational agency, local educational agency, Indian tribe, or school to comply with such statutory or regulatory requirements; and

"(D) provide an assurance that the State educational agency, local educational agency, or Indian tribe will work to mitigate any negative effects, if any, that may occur as a result of the requested waiver.

"(3) Secretary approval.-

"(A) In general.-Except as provided under subparagraph (B), the Secretary shall approve or disapprove a waiver request submitted under paragraph (1) not more than 30 days after the date on which such request is submitted.

"(B) Exceptions.-The Secretary may disapprove a waiver request submitted under paragraph (1), only if the Secretary determines that-

"(i) the waiver request does not meet the requirements of this section;

"(ii) the waiver is not permitted pursuant to subsection (b)(2); or

"(iii) the description required under paragraph (2)(C) provides insufficient information to demonstrate that the waiving of such requirements is necessary or appropriate consistent with subsection (a).

"(4) Duration.-A waiver approved by the Secretary under this section may be for a period not to exceed the 2019–2020 academic year, except to carry out full implementation of any maintenance of effort waivers granted during the 2019–2020 academic year.

"(d) Reporting and Publication.-

"(1) Public notice.-A State educational agency, Indian Tribe, or local educational agency requesting a waiver under subsection (b)(2) shall provide the public and all local educational agencies in the State with notice of, and the opportunity to comment on, the request by posting information regarding the waiver request and the process for commenting on the State website.

"(2) Notifying congress.-Not later than 7 days after granting a waiver under this section, the Secretary shall notify the Committee on Health, Education, Labor, and Pensions of the Senate, the Committee on Appropriations of the Senate, the Committee on Education and Labor [now Committee on Education and the Workforce] of the House of Representatives, and the Committee on Appropriations of the House of Representatives of such waiver.

"(3) Publication.-Not later than 30 days after granting a waiver under this section, the Secretary shall publish a notice of the Secretary's decision (including which waiver was granted and the reason for granting the waiver) in the Federal Register and on the website of the Department of Education.

"(4) Report.-Not later than 30 days after the date of enactment of this Act [Mar. 27, 2020], the Secretary shall prepare and submit a report to the Committee on Health, Education, Labor, and Pensions and the Committee on Appropriations of the Senate, and the Committee on Education and Labor [now Committee on Education and the Workforce] and the Committee on Appropriations of the House of Representatives, with recommendations on any additional waivers under the Individuals with Disabilities Education Act (20 U.S.C. 1401 [1400] et seq.), the Rehabilitation Act of 1973 (29 U.S.C. 701 et seq.), the Elementary and Secondary Education Act of 1965 (20 U.S.C. 6301 et seq.), and the Carl D. Perkins Career and Technical Education Act of 2006 (20 U.S.C. 2301 et seq.) the Secretary believes are necessary to be enacted into law to provide limited flexibility to States and local educational agencies to meet the needs of students during the emergency involving Federal primary responsibility determined to exist by the President under section 501(b) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5191(b)) with respect to the Coronavirus Disease 2019 (COVID–19).

"(e) Terms.-In this section, the term 'State educational agency' includes the Bureau of Indian Education, and the term 'local educational agency' includes Bureau of Indian Education funded schools operated pursuant to a grant under the Tribally Controlled Schools Act of 1988 (25 U.S.C. 2501 et seq.), or a contract under the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5301 et seq.)."

[For definitions of terms as used in section 3511 of Pub. L. 116–136, set out above, see section 3502 of Pub. L. 116–136, set out in a note under section 1001 of this title.]