K-12 Education: Special Forms of Flexibility in the Administration of Federal Aid Programs
Prepared for Members and Committees of Congress
Beginning with the Improving America’s Schools Act in 1994, and continuing through the
Education Flexibility Partnership Act of 1999 and the No Child Left Behind Act of 2001 (NCLB),
the authorization of special forms of flexibility for grantees has been a focus of federal K-12
education legislation. These flexibility authorities apply primarily to programs under the
Elementary and Secondary Education Act (ESEA), the largest source of federal aid to K-12
In general, federal K-12 education assistance program requirements include activities or
outcomes that state or local educational agencies (SEAs, LEAs) are expected to provide or
achieve in order to establish accountability for use of funds consistent with the purposes of
authorizing statutes. These requirements are usually intended to provide target accountability,
ensuring that funds are focused on eligible localities, pupils, and purposes; outcome
accountability, ensuring that funds are used effectively to improve student achievement and
improve the quality of K-12 instruction; and fiscal accountability, ensuring financial integrity and
providing that federal funds constitute a net increase in resources.
Special flexibility authorities allow exceptions to these general requirements; they include Ed-
Flex, Secretarial case-by-case waivers, ESEA Title I-A schoolwide programs, flexibility for small
rural LEAs, the Innovative Programs block grant, Transferability authority, plus the State and
Local Flexibility Demonstration Program (State-Flex and Local-Flex). In general, these
authorities: (a) increase the ability of states or LEAs to use federal aid more completely in
accordance with their own priorities; (b) are significantly limited in terms of the number of states
and LEAs that may participate, the number and size of the programs affected, or the range of
requirements that may be waived; (c) sometimes require a degree of accountability based on pupil
achievement outcomes in return for increased flexibility, although the primary outcome
requirements are applicable to all states and LEAs participating in Title I-A and other ESEA
programs; (d) often attempt to require reports on ways in which the authorities have been used
and the impact of flexibility on pupil achievement; and (e) have been adopted in a policy context
of substantially increased accountability requirements and authorized degrees of flexibility in
general with respect to some aspects of the ESEA and related programs.
Major issues regarding special forms of flexibility in federal K-12 education programs include the
following: How significant are the degrees of flexibility allowed under these authorities? Is there
substantial state or local interest in the authorized forms of flexibility? For what purposes have
special flexibility authorities been used in the past, and is there evidence that these have resulted
in increased pupil performance or had other major impacts? And are the outcome accountability
requirements consistent with the increased flexibility provided under these authorities? ESEA th
programs are authorized through FY2008, and the 110 Congress is considering whether to
amend and extend the ESEA. This report will be updated regularly to reflect major legislative
developments and available information.
Introduc tion ..................................................................................................................................... 1
General Nature of Federal K-12 Program Accountability Requirements........................................1
Sources and Forms of Accountability Requirements................................................................2
Non-Regulatory Policy Guidance.......................................................................................2
Purposes of Accountability Requirements................................................................................3
Concerns About Selected Federal Program Requirements........................................................5
Special Flexibility Authorities Initiated Before Enactment of the No Child Left Behind
Act of 2001...................................................................................................................................7
Ed-Flex ........................................................................................................................ .............. 7
Secretarial Case-by-Case Waiver Authorities...........................................................................9
Charter Schools Waiver Authority.....................................................................................11
School-Level Flexibility: ESEA Title I-A Schoolwide Programs............................................11
Flexibility for Small, Rural LEAs...........................................................................................12
The Federal K-12 Education Block Grant: ESEA Title V-A...................................................14
State and Local Experience with the ESEA Title V-A Block Grant..................................15
Other Pre-NCLB Flexibility Authorities.................................................................................16
Flexibility Authorities Initiated in the No Child Left Behind Act of 2001....................................16
State and Local Flexibility Demonstration Program...............................................................18
St ate-Flex ..................................................................................................................... ..... 18
Local-Flex ......................................................................................................................... 18
Competition for State-Flex and Local-Flex Authority......................................................19
Comparison With Other Flexibility Authorities in the No Child Left Behind Act...........20
Comparison With State and Local Flexibility Authorities in Earlier Senate- and th
House-Passed Versions of H.R. 1, 107 Congress.........................................................20
Major Cross-Cutting Issues Regarding Special Forms of Flexibility in Federal K-12
How Significant Are the Degrees of Flexibility Allowed under These Authorities?..............22
For What Purposes Have Special Flexibility Authorities Been Used, and Is There
Evidence That These Have Resulted in Increased Pupil Performance or Had Other
Impact of Flexibility.........................................................................................................25
Availability and Dissemination of Information on Use and Impact of Special
Are the Outcome Accountability Requirements Consistent with the Increased
Flexibility Provided under These Authorities?.....................................................................26
Author Contact Information..........................................................................................................28
Beginning with adoption of the Improving America’s Schools Act (IASA) in 1994 (P.L. 103-382),
and continuing through enactment of the Education Flexibility Partnership Act of 1999 (P.L. 106-
25) and the No Child Left Behind Act of 2001 (NCLB, P.L. 107-110), the authorization of special
forms of flexibility for grantees has been a major focus of most federal K-12 education assistance
legislation. In particular, the NCLB extended some flexibility authorities that had been
established earlier, and initiated new ones. This report provides an overview of these
authorizations for state and local flexibility in administering federal K-12 education programs. It
will be updated infrequently to incorporate major new developments in the implementation of
these authorities or new information on their use and impact.
“Flexibility” is defined for purposes of this report as authority under which federal program
requirements, particularly restrictions on the use of federal aid, may be waived by, or on behalf
of, state or local aid recipients meeting certain eligibility criteria. In some cases, this flexibility is
granted in return for meeting specified accountability requirements related to program outcomes.
Such flexibility includes provisions for consolidation of multiple programs, or for transfer of
funds among programs, so that federal assistance may be used for a broader range of activities or
purposes than ordinarily would be allowed, as well as the authority to waive specified types of
In general, these flexibility authorities apply to federal aid programs authorized by the
Elementary and Secondary Education Act (ESEA), the largest source of federal aid to K-12
education. In contrast, almost none of these authorities involve the second largest source of
federal aid, the Individuals with Disabilities Education Act (IDEA). For this reason, as well as the
existence of a number of issues regarding requirements and flexibility that are specific to that
program, the IDEA will not be discussed further in this report, and discussions of federal
involvement in K-12 education in this report should be understood to apply to the ESEA and to th
exclude the IDEA. ESEA programs are authorized through FY2008, and the 110 Congress is
considering whether to amend and extend the ESEA. This report will be updated regularly to
reflect major legislative developments and available information.
This report begins with a review of the general nature of federal K-12 education program
requirements, including their sources, purposes, and the concerns expressed by some grantees
about them. This is followed by a description of the current special flexibility authorities under
which many of these requirements may be waived or otherwise made inapplicable, along with an
analysis of issues specific to individual authorities. This section is divided between authorities
initially adopted before the NCLB and authorities initiated in that legislation. The report
concludes with an analysis of selected cross-cutting issues regarding these special flexibility
We begin this report with a brief review of the general types of program requirements applicable
to ESEA and related federal K-12 programs. Many of these requirements may be waived, in part
or in whole, for some or all states and LEAs under the special flexibility authorities discussed
later. We refer to these as “accountability requirements” because they are intended to provide
accountability by assuring that federal funds are used in ways that are consistent with the
purposes of the federal statutes authorizing the programs. Typically, federal programs of aid to
elementary and secondary education exhibit a mix of relatively specific and explicit requirements
in such areas as eligibility of pupils to be served, allocation of funds, or (increasingly) outcomes,
along with substantial flexibility in many other important respects, such as instructional methods
or grade levels to be served.
Federal K-12 education programs generally focus upon one or more of the following: (a) student
populations with special educational needs, such as disadvantaged or limited English proficient
(LEP) pupils; (b) a specific aspect of instructional services, such as educational technology or
recruitment and professional development of teachers; (c) development, demonstration, and
dissemination of innovative instructional approaches, such as charter schools or demonstrations
of comprehensive school reform; or (d) a specific subject area, such as instruction in math or
science. Most of the larger federal programs, such as ESEA Title I-A, fall into category (a), while
several programs of small to moderate size are in categories (b)-(d). Almost all federal K-12
education programs, in all of categories (a)-(d), are sometimes referred to as “categorical”
programs, because their focus is targeted or limited in one or more important respects. In contrast,
one ESEA program—the Innovative Programs authority of ESEA Title V-A—provides support
for such a broad range of activities that it is generally considered to be a “block grant” at the other
end of the intergovernmental assistance spectrum.
There are three general sources of federal requirements or related guidance to state and local
recipients of federal aid. An important distinction (at least in theory) can be made between
“requirements” and “non-regulatory policy guidance.” “Requirements” must be met by grantees,
as a matter of law. While they are always derived ultimately from the authorizing statute for a
program, or other federal statutes or judicial actions, they may appear in the form of regulations,
in addition to statutory text. Program regulations, which are published initially in the Federal
Register, then later integrated into annual updates of the Code of Federal Regulations,
supplement statutory language primarily with respect to a limited number of major issues or
topics which are complex, where U.S. Department of Education (ED) officials place high priority
on grantees taking certain specific actions, and where statutory text is deemed by ED to provide
insufficient guidance. One example would be ESEA Title I-A requirements regarding curriculum
content and pupil performance standards and assessments. In a few cases, authorizing statutes
explicitly provide that ED is to publish regulations addressing certain issues, although ED may
issue regulations with respect to any aid program which it administers.
In contrast, “non-regulatory policy guidance” is also published by ED for many programs. Such
“non-regulatory policy guidance” may be published in the form of extensive questions and
answers regarding several aspects of a program, or more specific “Dear Colleague” policy letters
from the U.S. Secretary of Education to chief state school officers or other state and local
officials. As this designation implies, grantees are not legally required to follow this “guidance,”
which is generally intended to answer relatively specific questions regarding topics such as uses
of funds or selection of pupils to be served. Nevertheless, the typical perception and use of “non-
regulatory” guidance may be more complex than this stated intent would imply. Grantees may
assume that they will face fewer effective challenges to their use of federal aid if they follow such
“non-regulatory” guidance, and may often treat such guidance as if it were equivalent to
regulations, even if they are not explicitly “required” to do so.
A somewhat analogous form of “non-regulatory guidance” may be found in the “competitive
priorities” established by ED for competitive or discretionary (i.e., not formula) grant programs.
In these grant competitions, ED typically sets certain priorities for applications which would
receive preferential consideration in the awarding of grants. For example, a priority might be
established for applicants which would use funds to provide services in schools with high
percentages of pupils from low-income families. While applicants are not required to meet these
priorities, it is obvious that they will have a much greater likelihood of receiving support if they
do so. These priorities are not “regulations”; they are typically published only in the
announcement of the grant competition in the Federal Register.
Over the past several years, especially since adoption of the IASA in 1994, there has been a trend
toward the publication of regulations which are less voluminous and address fewer aspects of
many federal elementary and secondary education programs than in the past. For several
programs, ED has published no regulations at all, implying that guidance in the statute is
sufficient and requires no supplementation by regulations, although in most cases some form of
“non-regulatory policy guidance” is provided.
For ESEA programs where some regulations are still published, such as ESEA Title I-A, the
regulations are generally somewhat briefer, and often address fewer issues, than was the case
prior to the early 1990s. For example, proposed program regulations for ESEA Title I-A after
enactment of the IASA in 1994 followed a rather “minimalist” approach in that they addressed
relatively few program issues, primarily standards, assessments, and accountability; schoolwide
programs; participation of children who attend private schools; and allocation of funds within
states and LEAs. More recently, following enactment of the NCLB of 2001, ED embraced a
similar strategy. With respect to ESEA Title I-A, for example, it has thus far published regulations 1
on a relatively limited number of topics. The Department has stated:
The Secretary intends to regulate only if absolutely necessary; for example, if the statute
requires regulations or if regulations are necessary to provide flexibility or clarification for
State and local educational agencies. Rather than regulating extensively, the Secretary
intends to issue nonregulatory guidance addressing particular legal and policy issues under
the Title I programs. This guidance will inform schools, parents, school districts, States, and
other affected parties about the flexibility that exists under the statute, including different 2
approaches they may take to carry out the statute’s requirements.
Federal K-12 education assistance program requirements include a broad range of activities,
services, or outcomes that SEAs, LEAs, and other aid grantees are expected to provide, perform,
or achieve with, or in return for, federal grants, in order to show evidence that program goals are
1 These topics include participation in the National Assessment of Educational Progress (NAEP), state accountability
systems (including assessments and adequate yearly progress requirements), schoolwide programs, LEA and school
improvement, qualifications of teachers and paraprofessionals, participation of eligible pupils attending private schools,
allocations to LEAs and schools, and fiscal requirements.
2 67 Federal Register, May 6, 2002, p. 30452.
being met—that is, to establish accountability for appropriate use of federal aid funds. Federal
elementary and secondary education program requirements are usually intended to provide one or
more of three basic types of accountability for use of funds consistent with the purposes of
statutes that authorize the programs. These intended forms of accountability include
• target accountability: assuring that funds are focused on eligible localities,
pupils, and purposes, usually for the ultimate purpose of promoting more equal
• outcome accountability: assuring that funds are used effectively to improve
student achievement and enhance the quality of K-12 instruction—either in
specific subject areas or for particular types of pupils, or overall; and
• fiscal accountability: assuring financial integrity and providing that federal aid
funds constitute a net increase in resources for the eligible pupils or purposes,
rather than potentially replacing (supplanting) state or local funds that would
otherwise be available for the same purpose.
Specific types of requirements intended to support one or more of these purposes include
• target resources on specific “high need” pupil groups or types of localities or
• limit the authorized uses of funds to certain high priority types of services,
• conduct audits or assure that federal funds supplement, and do not supplant, state
and local resources,
• enhance parental participation or provide for equitable treatment of pupils
attending non-public schools,
• implement minimum qualifications for school staff,
• report to parents and the general public of information on program activities and
• meet certain student achievement and other outcome goals, and
• evaluate the effectiveness of federally supported instructional services.
Grantees that violate any of these types of regulations implicitly face the possibility of having to
repay funds to the federal government, or being prohibited from receiving further grants, although
such sanctions are rarely invoked. In some cases, authorizing statutes explicitly provide for more 3
limited, specific sanctions for states or LEAs which fail to meet some requirements.
In addition to such program-specific requirements, a number of general requirements apply to all
recipients of federal education assistance under any program. Many of these are published in the
3 For example, the ESEA provides that the Secretary shall withhold 25% of funds otherwise available for state
administration and program improvement activities from states which fail to meet the ESEA Title I-A requirements
regarding standards and assessments which were originally adopted in the Improving America’s Schools Act of 1994,
and may withhold additional state administration funds for failure to meet new assessment requirements adopted under
Education Department General Administrative Regulations (EDGAR),4 as well as the financial
management requirements contained in relevant “circulars” published by the Office of 5
Management and Budget (OMB). Other regulations that are generally applicable to ED programs
include those related to civil rights and privacy of student records. LEAs that participate in the
federal child nutrition programs administered by the Department of Agriculture must comply with
a variety of related requirements—for example, they must provide free or reduced-price school
lunches to pupils from low-income families. Finally, federal regulations published by federal
agencies other than ED may be applicable to LEAs and schools in their role as employers (e.g.,
regulations related to workplace safety, environmental protection, access for persons with
disabilities, labor relations, etc.).
However, state and local educational agencies are given wide latitude in other aspects of the use
of federal education assistance. Such matters as grade levels, subject areas, and instructional
techniques have typically been left almost totally to state and local discretion. If a requirement is
applied to instructional methods under the ESEA and related programs—for example, the
requirement applied to selected programs under the NCLB that instructional methods be
“scientifically based”—it is almost always broad, leaving great scope to state and LEA discretion.
Complaints about ESEA and related program-specific requirements by proponents of greater
flexibility are often focused on a selected range of particular types of requirements. Program-
specific requirements that are often the focus of criticism include (a) explicit or implicit
prohibitions against commingling (mixing) of funds under different federal programs with each
other or with revenues from state and local programs; (b) restrictions on the use of resources
purchased with federal program funds for activities other than those conducted under that
program; (c) requirements that aid be targeted on certain types of pupils or schools; (d) eligibility
thresholds for special forms of flexibility (e.g., ESEA Title I-A schoolwide programs); and (e) 6
ESEA Title I-A outcome accountability requirements under the NCLB.
In general, prohibitions against commingling of funds—(a) above—arise from efforts to establish
fiscal accountability. Restrictions on the use of instructional resources to the pupils eligible to be
served (b), as well as requirements to target aid on pupils and schools with the greatest incidence
of poverty (c), are intended to focus limited federal funds on those with the greatest needs. The
eligibility thresholds for certain forms of flexibility, such as ESEA Title I-A schoolwide programs
(d), have rationales that are discussed later in this report. Finally, the new or expanded outcome
accountability requirements (e), which are a key element of the NCLB, are intended to increase
4 34 CFR 74-86.
5 The most important of the OMB Circulars for administration of federal K-12 education programs by states and LEAs
include Circular A-133, Audits of States, Local Governments, and Non-Profit Organizations (including the “Circular
A-133 Compliance Supplement”), Circular A-87, Cost Principles for State, Local, and Indian Tribal Governments, and
Circular A-102, Grants and Cooperative Agreements with State and Local Governments.
6 These provisions are discussed in CRS Report RL33731, Education for the Disadvantaged: Reauthorization Issues
for ESEA Title I-A Under the No Child Left Behind Act, by Wayne C. Riddle.
the effectiveness of federally supported education services and to help shift the focus away from
other types of requirements toward improved outcomes.
Nevertheless, from a state or local perspective, these requirements may sometimes seem to be
unnecessarily inflexible, especially in relatively low enrollment LEAs that may receive small
grants under each of a variety of federal programs. While the categorical approach of most of the
larger ED programs directs aid at high-need pupil groups like disadvantaged and LEP pupils, such
an approach may have undesirable (and unintended) effects. Some of these effects may include
fragmentation of services to children, with challenges for coordinating special program
instruction with their regular instruction; inefficient use of resources, that may remain unused
when not required by the special needs pupils; treatment of partial needs when a more coherent
focus on the whole child and her/his entire instructional program might be more effective,
especially with respect to children with multiple special needs; or instruction of pupils in separate
settings, whether or not this is explicitly required by the legislation, when this might not be the
most effective instructional technique. The traditional federal categorical approach has been
criticized as leading to fragmented instruction, and focusing more on targeting resources and
inputs than on improving achievement and other outcomes for pupils. Difficulties may also arise
from efforts to implement federal programs in states and LEAs with widely varying educational
policies and demographic conditions.
Some of these problems with categorical program structures and associated requirements may be
based on misunderstandings of the requirements of federal statutes and regulations, or overly
strict state or local interpretations of these. Others may be the inevitable effects of efforts to
ensure that federal aid is focused on pupils most in need, coupled with grantee efforts to avoid
problems with federal program monitoring and audits. Whatever their basis, and regardless of
whether regulatory burdens have been reduced in recent years, state and local education officials
sometimes complain about these, and other, constraints on the use of federal funds.
A 1998 Government Accountability Office (GAO) report,7 based on a survey of staff in a
nationally representative sample of LEAs, concluded that in addition to the program-specific
varieties of requirements discussed above, LEA staff frequently expressed concern about certain
cross-cutting requirements applicable to recipients of federal K-12 education assistance. First,
LEA staff complained that it was difficult to obtain current, accurate, and concise information on
the wide variety of federal requirements with which they must comply, and that existing sources
of technical assistance on these matters were inadequate. The authors of the GAO report
concluded that LEA staff often respond to such information gaps in a cautious manner that
unnecessarily limits their flexibility—namely, that they often are unaware of, or do not exercise,
degrees of flexibility that are available to them. Second, staff in most of the surveyed LEAs
expressed concern about the costs of meeting their administrative responsibilities under federal
education programs, including the preparation of required reports. Finally, LEA staff indicated
that meeting required timelines and other “logistical and management challenges” associated with
federal K-12 education programs presented substantial difficulties.
7 Government Accountability Office, Elementary and Secondary Education: Flexibility Initiatives Do Not Address
Districts’ Key Concerns About Federal Requirements, GAO/HEHS-98-232.
Prior to enactment of the NCLB, several authorities were adopted that allow the waiver of many
types of federal K-12 program requirements by, or on behalf of, SEAs and LEAs. Each of them is
limited with respect to either the types of requirements that can be waived, the specific ESEA and
other programs affected, or the number of states or LEAs that are currently eligible. Some require
waivers to be requested on a case-by-case basis, while others offer “blanket” waiver authority.
Further, some of these authorities require some form of additional accountability in terms of pupil
outcomes, while others do not.
In addition to two general types of waiver authorities, Ed-Flex and Secretarial case-by-case
waivers, a high degree of school-level flexibility in the use of funds under several federal
programs is provided under the schoolwide program authority under ESEA Title I-A, an
exceptional range of flexibility in the use of funds is provided under the Innovative Programs
block grant, and an authority for flexibility in small, rural LEAs was initially adopted as part of
FY2001 appropriations legislation for ED. These five types of special flexibility, which were
initiated before adoption of the NCLB of 2001, are described below. The succeeding section of
this report discusses forms of flexibility initiated in the NCLB. Note that in cases where a
previously initiated special flexibility authority was significantly amended by the NCLB, the
current (amended) version is described below.
Under Ed-Flex, ED is authorized to delegate to SEAs in participating states authority to waive, on
behalf of LEAs or schools in that state, a range of requirements under selected ESEA programs.
Ed-Flex authority was initially authorized for up to six states in the 1994 Goals 2000: Educate
America Act (P.L. 103-227). It was expanded to a maximum of 12 states in FY1996
appropriations legislation for ED (P.L. 104-134). It was modified, and the cap on the number of
participating states was removed, by the Education Flexibility Partnership Act of 1999 (P.L. 106-
25). Technical amendments were made to P.L. 106-25 by the NCLB of 2001. Finally, legislation
was enacted in 2006 to extend Ed-Flex authority until the next reauthorization of ESEA Title I,
Part A (P.L. 109-211).
The original Ed-Flex authority was granted to 12 states, and Ed-Flex status under P.L. 106-25 was
obtained by 10 states: Colorado, Delaware, Kansas, Maryland, Massachusetts, North Carolina, 8
Oregon, Pennsylvania, Texas, and Vermont. No state has been granted Ed-Flex authority since
January 2002, and the authority under P.L. 106-25 for ED to grant Ed-Flex authority to additional
states expired at the end of FY2004. Ed-Flex authority is granted to a state for up to five years,
8 The Ed-Flex authority established under P.L. 106-25 did not automatically or immediately replace the original
authority under the Goals 2000: Educate America Act. States that had obtained Ed-Flex authority under Goals 2000
retained that authority for the period for which it was granted (up to five years); they were required to obtain any
extension of their Ed-Flex authority under P.L. 106-25. Seven of the states that obtained Ed-Flex authority under P.L.
106-25—Colorado, Kansas, Maryland, Massachusetts, Oregon, Texas, and Vermont—were also among the 12 Ed-Flex
states under the previous authority. As for the remaining five states that had Ed-Flex authority under the original
legislation (Illinois, Iowa, Michigan, New Mexico, and Ohio), that authority has expired and was not replaced by new
authority under the 1999 legislation.
and the recent congressional action (P.L. 109-211) addressed the prospect that authority would
otherwise have expired for all of the 10 Ed-Flex states by January 2007. Under P.L. 109-211, all
states with Ed-Flex authority as of September 30, 2004 (this includes all 10 states that received
Ed-Flex authority under P.L. 106-25) retain that authority until enactment of legislation to
reauthorize ESEA Title I, Part A. However, P.L. 109-211 does not provide authority for ED to
extend Ed-Flex authority beyond these 10 states.
States participating in Ed-Flex must commit themselves to waiving state, as well as federal,
requirements affecting LEAs and schools in the state. States must also meet the requirements for
adoption of curriculum content and pupil performance standards, and assessments linked to these, 9
under ESEA Title I-A. States are to monitor the performance of LEAs and schools for which
federal or state requirements are waived, and submit annual reports on these outcomes to ED.
The federal programs to which Ed-Flex applies are ESEA Titles:
• I-A (Education for the Disadvantaged),
• I-B-3 (William F. Goodling Even Start Family Literacy Programs),
• I-C (Education of Migratory Children),
• I-D (Prevention and Intervention Programs for Children and Youth Who Are
Neglected, Delinquent, or At-Risk),
• I-F (Comprehensive School Reform Program),
• II-A (Teacher and Principal Training and Recruiting Fund),
• II-D-1 (State and Local Technology Grants),
• III-B-4 (Emergency Immigrant Education Act) if Title III-A is not in effect,10
• IV-A-1 (Safe and Drug-Free Schools and Communities), and
• V-A (Innovative Programs),
• the Carl D. Perkins Vocational and Applied Technology Education Act (Perkins
These include most of the ESEA programs that are administered via SEAs and that allocate funds 11
by formula (“state-administered programs”). ED has also interpreted the Ed-Flex statutes as
9 For a discussion of these requirements, see CRS Report RL31407, Educational Testing: Implementation of ESEA Title
I-A Requirements Under the No Child Left Behind Act, by Wayne C. Riddle.
10 Under provisions of the ESEA, as amended by the NCLB, the Emergency Immigrant Education Act (Title III-B-4)
may be funded only if Title III-A (English Language Acquisition and Enhancement) is not funded. This has not
occurred and seems unlikely to occur in the future.
11 State-administered formula grant programs authorized by the ESEA which are not subject to Ed-Flex authority
include Title I-B-1 (Reading First), Title I-B-4 (School Libraries), Title I-G (Advanced Placement Programs), Title I-H st
(School Dropout Prevention), Title III-A (English Language Acquisition and Enhancement), Title IV-B (21 Century
Community Learning Centers), and Title VI-B-2 (Rural and Low-Income School Program). Note that Title I-B-4 and
Title I-H would become formula grant programs only if minimum threshold amounts were appropriated, which has not
providing authority for participating states to waive some cross-cutting administrative
requirements of the General Education Provisions Act (GEPA) and the Education Department
General Administrative Regulations (EDGAR) that apply to the above programs.
Several types of requirements may not be waived by Ed-Flex states, unless the underlying
purposes of the statutory requirements are otherwise met to the satisfaction of the Secretary of
Education. These include requirements related to:
• fiscal accountability (e.g., requirements for LEAs or SEAs to maintain their level
of spending for specified educational services; to use federal aid only to
supplement, and not supplant, state and local funds for specified purposes; or to
provide state and local funding that is comparable in all schools of an LEA),
• equitable participation by private school pupils and teachers,
• parental involvement in program activities and services,
• allocation of funds to states or LEAs,
• certain ESEA Title I-A school selection requirements, and
• applicable civil rights requirements.
With the exception of statewide “blanket” waivers, LEAs or schools requesting waivers in Ed-
Flex states must apply to their SEA, providing information analogous to that required for LEAs
requesting waivers directly from ED (see the following section of this report). SEAs may not
waive requirements applicable to the SEAs themselves. In all cases, SEAs must be satisfied that
“the underlying purposes of the statutory requirements of each program or Act for which a waiver
is granted continue to be met.” Local waivers are to be terminated if student performance has
been inadequate to justify their continuation, or performance has declined for two consecutive
years (unless there are exceptional or uncontrollable circumstances).
States are required to submit annual reports on waivers they have granted; beginning with the
second annual report, information on the effects of waivers on student performance must be
included. Further, beginning two years after enactment of P.L. 106-25 (i.e., April 29, 2001), and
annually thereafter, ED is to make these state reports available to Congress and the public, and to
submit to Congress a report summarizing the state reports, including information on the effects of
Ed-Flex waivers on state reform efforts and pupil performance. While such a report was prepared
in 2001, it contained no information on the use of Ed-Flex authority by states or programmatic
impacts, in part because it focused only on activities under the new authority in P.L. 106-25,
overlooking ongoing activities in the 12 states that had received Ed-Flex authority earlier (even in 12
cases where the same states were involved). Apparently, no subsequent annual reports have been
published by ED.
A second type of federal education program flexibility authority consists of waivers that may be
granted to SEAs or LEAs on a case-by-case basis, directly by the U.S. Secretary of Education.
12 U.S. Department of Education, 2001 Report to Congress on the Implementation of the Education Flexibility
Partnership Act of 1999, July 25, 2001.
While there are at least three such authorities affecting K-12 education programs, the following
discussion will focus primarily on the most broadly applicable and frequently utilized of these,
which is in Title IX, Part D of the ESEA, as amended by the NCLB. Under this provision, the
Secretary of Education is authorized to waive most requirements associated with any program
authorized by the ESEA. The waivers must be specifically requested by SEAs, LEAs, Indian
tribes or schools (via their LEAs). Waiver requests must include “specific, measurable
educational goals ... and the methods to be used to measure annually such progress for meeting
such goals and outcomes” for pupils eligible to be served by the relevant programs.
With respect to types of requirements that may not be waived, the provisions regarding case-by-
case waivers are generally the same as those for the Ed-Flex program. However, there are four
types of requirements that may not be waived under the ESEA Title IX-D case-by-case waiver
authority in addition to those that cannot be waived under Ed-Flex: (1) prohibitions against
consideration of ESEA funds in state school finance programs; (2) prohibitions against use of
funds for religious worship or instruction; (3) certain prohibitions against use of funds for sex
education (under ESEA Title IX, Section 9526); and (4) the eligibility requirements for charter
schools under the Public Charter Schools program (ESEA Title V-B-1). ESEA Title IX-D also has
no authority analogous to the Ed-Flex provision that requirements generally not subject to waiver
may be waived if the underlying purposes of the statutory requirements continue to be met to the
satisfaction of the Secretary.
Waivers granted under the authority of ESEA Title IX-D may not exceed four years, except that
they may be extended if the Secretary determines that the waiver has contributed to improved
student achievement and is in the public interest. In contrast, waivers are to be terminated if the
Secretary determines that pupil performance or other outcomes are inadequate to justify
continuation of the waivers, or if the waiver is no longer necessary. The Secretary of Education is
required to publish a notice of the decision to grant a waiver in the Federal Register. According to
a memorandum from ED’s Office of the Inspector General dated April 5, 2007, the Department 13
had failed for several years to publish such notices. Apparently in response to a draft version of
this memorandum, ED did publish (on March 12, 2007) a list of waivers granted under ESEA
Title IX-D between the enactment of the No Child Left Behind Act of 2001 (P.L. 107-110) in
January 2002 and December 31, 2006. A total of 197 waivers were granted during this period;
however, relatively few of these were substantive. Almost two-thirds (128 or 65%) were waivers
of a 5.0% administrative cost limitation on formula grants for Indian education under ESEA Title
VII, Part A, and another 24 were extensions of the period during which funds under an ESEA
program could be obligated. Of the remaining 45 waivers granted, 18 were related to the impact
of Hurricanes Katrina and Rita in 2005, 5 were granted to allow states to participate in a pilot 14
program using growth models of adequate yearly progress, 6 allowed LEAs to provide
supplemental educational services (SES) rather than school choice in schools during their first 15
year of improvement under the ESEA Title I-A accountability provisions, and 6 allowed LEAs
identified as needing improvement to act as SES providers. The remaining 10 “general
programmatic waivers” allowed exceptions to the ESEA Title I-A requirements for fiscal
13 See http://www.ed.gov/about/offices/list/oig/aireports/i13h0003.pdf, accessed November 9, 2007.
14 For details, see CRS Report RL33032, Adequate Yearly Progress (AYP): Growth Models Under the No Child Left
Behind Act, by Wayne C. Riddle.
15 For details, see CRS Report RL31329, Supplemental Educational Services for Children from Low-Income Families
Under ESEA Title I-A, by David P. Smole.
accountability (comparability) or school selection and allocation, or to a limitation on authority to
consolidate state administrative funds under a variety of ESEA programs.
The Secretary is also required under ESEA Title IX-D to submit to Congress annual reports on the
effects and effectiveness of waivers that have been granted, beginning in FY2002. It is not clear
that any such reports have been submitted.
A second case-by-case waiver authority affects only schools participating in the Public Charter
Schools (PCS) program authorized by ESEA Title V, Part B. A distinctive aspect of the PCS
waiver authority (ESEA Section 5204(e)) is that none of the limitations on types of requirements
that may be waived, as listed above for Ed-Flex and the ESEA Title IX-D waiver authority, apply
to the PCS waiver authority. Under the PCS authority, any requirement over which the Secretary
of Education “exercises administrative authority” may be waived, with the sole exception of
requirements associated with the definition of a charter school eligible to receive PCS funds
(ESEA Section 5210(1)). However, this authority has been used infrequently and for relatively 16
limited purposes, and therefore will not be discussed further in this report.
Schools participating in the ESEA Title I-A program at which 40% or more of the pupils are from
low-income families are eligible to conduct schoolwide programs with a broad and substantial
degree of flexibility in the use of funds under almost all federal education programs. In a
schoolwide program, federal aid provided under Title I-A plus many other federal K-12 education
programs may be used to improve services to all pupils, rather than limiting services to particular
pupils deemed to be the most disadvantaged. If they meet the intent and purposes of Title I-A and
the other federal programs, and address the needs of the programs’ intended beneficiaries,
schoolwide programs are exempted from a variety of regulations under Title I-A and most other
programs, with specified exceptions, such as regulations regarding health, safety, civil rights,
parental participation, services to private school pupils and teachers, or fiscal accountability. Title
I-A and other federal program funds must be used so that they supplement, and do not supplant,
other federal and non-federal funds that the school would otherwise receive. Further, only
commingling or flexibility in the use of funds is authorized with respect to the IDEA in 17
schoolwide programs; all of the IDEA’s programmatic requirements must still be met.
Although the schoolwide program authority applies to a wide variety of federal K-12 education
programs, it is of significance primarily with respect to Title I-A. This is because almost all of the
other programs affected typically are focused on LEAs overall, not individual schools. Further, to
the extent that the non-Title I-A programs are focused on individual schools, they are not
16 According to John Fiegel of the U.S. Department of Education, as of August 1, 2002, eight waivers had been granted
under this authority. Five of these waivers were to allow SEAs to use more than a statutory cap of 10% of their Public
Charter Schools (PCS) program funds for dissemination grants; one waiver was to allow a state’s Governor, rather than
the SEA, to administer the PCS program (a practice which was later discontinued); and the final two approved requests
were to waive certain Impact Aid (ESEA Title VIII) provisions with respect to individual charter schools serving
17 The latest published guidance from ED on schoolwide programs may be found in the Federal Register of July 2,
2004, pages 40360-40365.
otherwise (i.e., in schools not eligible to conduct schoolwide programs) focused on groups of
pupils with specific educational needs (except for the IDEA, where the schoolwide program
authority is specifically limited). Nevertheless, the ability to use Title I-A funds on a schoolwide
basis, combining them with state and local funds without the need for separate accounting, is in
itself quite a significant form of flexibility in comparison to the traditional “targeted assistance”
Title I-A program format, under which funds may be used only to serve the lowest achieving
individual pupils in a school.
There are few additional requirements that schoolwide programs are required to meet in return for
this increased flexibility. The number of schoolwide programs has grown rapidly in recent years,
and a large majority of the pupils served by Title I-A are now in schoolwide programs; they
constitute more than half of Title I-A schools and a large majority of pupils participating in Title 18
I-A programs. The eligibility threshold for schoolwide programs was reduced from 50% to 40%
of pupils from low-income families by the NCLB. Before this, many of the Ed-Flex and other
waivers granted between 1994 and 2001 had allowed schools below the 50% threshold to operate
The rationale for providing schoolwide program authority to relatively high poverty schools is
that (a) in such schools, all pupils are disadvantaged, so most pupils are in need of special
assistance, and it seems less equitable to select only the lowest-achieving individual pupils to
receive Title I-A services, and (b) the level of Title I-A grants should be sufficient to meaningfully
affect overall school services in high poverty schools, since these funds are allocated on the basis
of the (relatively large) number of low-income pupils in these schools. The NCLB has reduced
the eligibility threshold to a level that is approximately the national average percentage of pupils
from low-income families, which may raise questions regarding the validity of both aspects of 19
this rationale for schools that just meet the new threshold. In addition, there is little direct
evidence of the achievement effects of this expansion of schoolwide programs.
A form of flexibility under which small, rural LEAs may transfer funds among selected ESEA
programs was initially authorized under P.L. 106-554, the Consolidated Appropriations Act of
The Rural Education Achievement Program (REAP), under ESEA Title VI-B, includes both a pair
of grant programs for rural and/or small and relatively high poverty LEAs, plus a special
18 According to the latest available data (published in State ESEA Title I Participation Information for 2003-2004),
55% of Title I-A schools were operating schoolwide programs in 2003-2004, and these schools served 85% of all
pupils served under Title I-A for that year.
19 At the level of individual schools, the most commonly used criterion for determining whether pupils are from low-
income families is eligibility for free and/or reduced-price school lunches (not the more narrow census poverty income
standard). The national average percentage of K-12 pupils meeting this criterion (in public schools participating in the
federal school lunch programs) is approximately 39%—1 percentage point less than the 40% schoolwide program
threshold. In addition, the free/reduced price school lunch data may overestimate the percentage of pupils from low-
income families, as there is evidence that more children and youth are counted than may be eligible based on family
income (see “Officials Seek to Refine Lunch Program Tallies,” Education Week, March 27, 2002).
flexibility authority for certain rural LEAs.20 Only the latter is relevant to this report and is
LEAs with total average daily attendance below 600 pupils, or which are located in a county with
a population density of fewer than 10 persons per square mile, and in which all schools are 21
classified as being in rural locations, may combine or transfer any funds received under ESEA
Titles II-A (Teacher and Principal Training and Recruiting Fund), II-D (Enhancing Education
Through Technology), IV-A (Safe and Drug-Free Schools and Communities), and V-A
(Innovative Programs block grant). These funds may be used for any activity authorized under
any of these programs or under ESEA Titles I-A (Education for the Disadvantaged), III (English st
Language Acquisition and Enhancement), and IV-B (21 Century Community Learning Centers).
The primary rationale for this authority is that the smallest LEAs need special flexibility due to
the small size of grants which they receive under a number of separate programs. These amounts,
typically based in large part on LEA enrollment, are often too small to support separate programs
of sufficient size and scope to be effective. Allowing such LEAs to combine and/or transfer funds
among a limited range of program activities may facilitate more effective use of those funds.
The degree of special flexibility provided to eligible small, rural LEAs under this “REAP Flex”
authority is similar to a different Transferability authority (described below) that is available to
almost all LEAs under the NCLB. The major differences are that the small, rural LEA authority
applies to 100% of the funds under the affected programs, while the broader Transferability
authority applies to only 50% (or in some cases less) of such funds; and the small, rural LEA
authority includes more programs into which funds may be transferred (ESEA Titles III and IV-
B). In addition, perhaps the greatest advantage of the small, rural schools flexibility authority is
that LEAs eligible for it are also eligible for supplementary grants that may be used for any of the
purposes for which combined or transferred funds may be used under the flexibility authority.
According to a study released by ED in July 2007,22 participation in REAP Flex is widespread,
with approximately 4,781 LEAs eligible and an estimated 51% of these participating in the rural
LEA flexibility authority in 2005-2006. LEAs participating in REAP Flex most often transferred
funds out of ESEA Titles II-A (Teacher and Principal Training and Recruiting Fund) and IV-A
(Safe and Drug-Free Schools and Communities), and most frequently into Titles I-A (Education
for the Disadvantaged) and V-A (Innovative Programs block grant). Rural LEAs reported that
they found this flexibility to be particularly useful because the amount of formula allocations they
received under many of the eligible programs was too small to fund substantial school
improvement activities. The authors of this evaluation also found a significant amount of
20 For additional information, see CRS Report RL33804, Rural Education and the Rural Education Achievement
Program (REAP): Overview and Policy Issues, by Jeffrey J. Kuenzi.
21 Under the statute, these would be schools with a locale code of 7 or 8, as determined by ED on the basis of a Census
Bureau classification system. These locale codes are currently in the process of being replaced by a new series of
“urban-centric” locale codes; see http://nces.ed.gov/ccd/rural_locales.asp. In addition, this specific criterion may be
waived if the LEA can demonstrate, with concurrence of its SEA, that it is located in a rural area, as defined by an
agency of that state.
22 The Urban Institute, “Evaluation of Flexibility Under No Child Left Behind: Volume I—Executive Summary of
Transferability, REAP Flex, and Local-Flex Evaluations,” prepared for the U.S. Department of Education, Office of
Planning, Evaluation, and Policy Development, Policy and Program Studies Service, 2007, available at
http://www.ed.gov/rschstat/eval/disadv/flexibility/execsum.html. Hereafter, in this report, this will be referred to as the
confusion at the LEA level between REAP Flex and the general Transferability authority, with
several LEAs that are eligible for both not clear on which authority they are using.
Finally, one individual ED program is worthy of mention in the context of special forms of
flexibility for states and LEAs in the use of federal aid funds: ESEA Title V-A, Innovative
Programs. Although the identification of aid programs as “categorical” versus “block grants” is
always somewhat judgmental, ESEA Title V-A is the one major K-12 education program
currently administered by ED that is almost universally considered to be a block grant. In the
field of education, block grants are aid programs covering an exceptionally wide range of
educational activities and types of students, and providing a great deal of flexibility to states and
LEAs in using the funds. They are often constructed through consolidation of a number of
preceding categorical programs that are more limited in the purposes or activities they support; in
the case of Title V-A, the initial consolidation took place in 1981.
After reservation of 1% of appropriations for grants to the Outlying Areas, ESEA Title V-A funds
are allocated to the 50 states, the District of Columbia and Puerto Rico in proportion to their total
population aged 5-17 years, except that no state is to receive less than 0.5% of total grants to
states. A majority of Title V-A funds must be allocated by SEAs to LEAs on the basis of state-
developed formulas. These formulas must meet general criteria of taking into consideration each
LEA’s enrollment of pupils in public and private (non-profit) schools, and incorporating
adjustments to provide increased grants per pupil to LEAs with the greatest numbers or
percentages of “high cost” pupils, including those from economically disadvantaged families and
those living in sparsely populated areas or areas of concentrated poverty.
The specific minimum percentage of funds that must be suballocated to LEAs varies depending
on the program’s aggregate funding level and whether the state receives the minimum grant
amount (0.5% of total grants to states). All states must suballocate to LEAs an amount equal to at
least 85% of the grant which they received under this program for FY2002. In addition, most
states are to suballocate to LEAs 100% of their Title V-A grants in excess of the FY2002 level;
however, for states receiving the minimum grant amount, the minimum share of Title V-A grants
above the FY2002 level that must be suballocated to LEAs is only 50%.
Of the funds that may be retained by states, no more than 15% may be used for administrative
costs; the remainder is to be used for one or more of seven specified types of programs and
services. The latter include the design and implementation of pupil assessments; implementation
of achievement standards; planning and implementation of charter schools; independent analysis
and reporting on LEA achievement; (apparently) the implementation of policies to offer public 23
school choice options to pupils attending unsafe schools; school repair and renovation; and a
broad category of “statewide education reform, school improvement programs and technical
assistance and direct grants to” LEAs (Section 5121(3)).
LEAs may use their Title V-A funds for any of 27 different types of “innovative assistance
programs” listed in Section 5131. Several of these are relatively specific, such as planning and
implementation of charter schools, “programs to provide same gender schools and classrooms
23 The language of ESEA Title V-A on this point contains an incorrect reference to a non-existent Section 9507. It
appears that the intended reference was to Section 9532.
(consistent with applicable law),” or programs to hire and support school nurses. Others are
broad, such as “promising education reform projects,” “activities that encourage and expand
improvements throughout the area served by the local educational agency,” or “programs to
improve the academic achievement of educationally disadvantaged elementary and secondary
school students.” It is essentially because of the existence of these broad, “catchall” categories of
authorized use of funds by LEAs and states that Title V-A is generally considered to be a block
grant. In addition, the statute includes a prohibition against SEAs exercising influence over LEA 24
decisions on how Title V-A funds will be used.
The program now authorized by ESEA Title V-A was first enacted in 1981 (P.L. 97-35) as
Chapter 2 of the Education Consolidation and Improvement Act (ECIA), which consolidated
more than 40 previous federal K-12 education programs. Chapter 2 was the legislative response
to a Reagan Administration proposal for a much broader block grant into which almost all federal
K-12 education programs would have been consolidated. The block grant initially reduced the
number of federal education programs. However, many new categorical programs were
authorized in the years immediately following adoption of the consolidated program, including
some that were essentially direct successors to programs initially consolidated into the block
grant (e.g., aid for magnet schools).
The most recent study by ED of the program (Study of Educational Resources and Federal
Funding: Final Report, August 2000), based on a survey of a representative sample of LEAs,
found that 58% of recipient LEAs used “a great deal” of their Title V-A funds for instructional
materials, while 39% of LEAs used substantial funds for educational technology, and 34% of
LEAs for supplemental targeted academic services. Large LEAs were found to be especially
likely to use Title V-A funds for teacher professional development services and school-based
improvement efforts. Resources or services funded by this program were found to be infrequently
targeted at particularly high-need pupils or schools. It was also reported that the primary factors
influencing decisions on the use of Title V-A funds were long-term LEA plans and the priorities
of individual schools.
Appropriations have steeply declined over the life of Title V-A, from $442 million in FY1982, the
first year of funding, to $99 million for FY2007. Further, P.L. 110-161, the Consolidated
Appropriations Act for FY2008, provides zero funds for Title V-A, raising the possibility that the
program is being effectively terminated, at least in terms of direct appropriations. One reason for
this trend is that there have been few constituencies promoting increased funding for the program.
Although it is apparently popular with a broad range of state and local public education officials,
as well as many private school administrators, its support seems to be diffuse. In recent years, the
direct appropriation for Title V-A has been supplemented by funds transferred into the programs
under the REAP Flex (see above) and Transferability (see below) authorities, and this trend seems
likely to continue as possibly the only source of funding for this program.
Limited information on the effects of Title V-A services may have reduced incentives to maintain
the program’s funding level. Title V-A has tended to receive less favorable treatment in funding
decisions than programs that could demonstrate targeting of funds, or a linkage to improved
24 This prohibition would not apply to states participating in a new State-Flex authority, which is described later in this
educational outcomes, particularly for high need pupil groups. In part to address this concern,
ESEA Title V-A was amended by the NCLB to require participating states to prepare, and submit
to ED, annual summaries of “how assistance under this part is contributing toward improving
student academic achievement or improving the quality of education for students” (Section
5122(a)(2)). As discussed in later sections of this report, authorities under the NCLB would allow
SEAs and LEAs to increase their Title V-A funding by transferring a portion of the funds they
receive under selected other federal programs into Title V-A, if they choose to do so.
Finally, a number of additional provisions initially adopted in the years preceding enactment of
the NCLB are sometimes cited as providing increased flexibility to states and LEAs. These are
not discussed in detail here because their potential impact is substantially more marginal than
those of the flexibility authorities described above, and/or their impact is primarily in the area of
administrative convenience for SEAs or LEAs. These additional forms of flexibility include
authority for consolidated SEA or LEA applications, plans, or reports for a number of ESEA and
related programs; and authority to consolidate certain funds used for SEA or LEA administration
of federal programs. These authorities are provided currently in Parts B and C of ESEA Title IX.
The No Child Left Behind Act of 2001 (NCLB), signed into law on January 8, 2002 (P.L. 107-
The NCLB also expanded and/or extended certain forms of flexibility which had been initiated
earlier, such as lowering the eligibility threshold of ESEA Title I-A schoolwide programs; these
NCLB amendments were discussed above.
Title VI, Part A, Subpart 2 of the ESEA, as amended by the NCLB, allows most LEAs to transfer
up to 50% of their formula grants among four ESEA programs: Teacher and Principal Training
and Recruiting Fund (Title II-A), State and Local Technology Grants (Title II-D-1), Safe and
Drug Free Schools and Communities (Title IV-A-1), and the Innovative Programs block grant
(Title V-A). The affected shares of funds may also be transferred into, but not from, ESEA Title I-
A. LEAs which have been identified as failing to meet state adequate yearly progress (AYP)
requirements will be able to transfer only 30% of their grants under these programs, and only to
activities intended to address the failure to meet AYP standards. Further, according to guidance
from ED, LEAs subject to corrective actions under Title I-A may not exercise this authority at 25
25 For a discussion of ESEA Title I-A adequate yearly progress and corrective action requirements, see CRS Report
RL31487, Education for the Disadvantaged: Overview of ESEA Title I-A Amendments Under the No Child Left Behind
Act, and CRS Report RL32495, Adequate Yearly Progress (AYP): Implementation of the No Child Left Behind Act,
both by Wayne C. Riddle. The ED guidance specifying that LEAs identified for corrective action may not transfer any
funds is contained in the document, Guidance on the Transferability Authority, June 8, 2004, found at
States may transfer up to 50% of the relatively limited amount of program funds over which they
have authority, except for administrative funds, among the first four of these programs plus the st
21 Century Community Learning Centers program. Thus, states could not transfer either any of
the funds they are required to suballocate to LEAs or funds reserved for state administration, so
the significance of this Transferability authority for states is limited.
The overall scale of the programs subject to this authority is moderately significant—the FY2008
appropriations for the four programs subject to LEA Transferability authority total approximately
$3.5 billion. The Transferability authority is relatively simple and straightforward; it is available
to most LEAs without the need for specific application or approval (although state or LEA plans
must be modified to reflect the transfers, and LEAs must inform their SEA). Further, the range of
purposes for which transferred funds might be used is especially wide, given that one of the
programs into which funds could be shifted is the Innovative Programs block grant. Nevertheless,
all program requirements continue to apply to the transferred funds, including any requirements
regarding shares of program funds which must or may be used for specified purposes; funds
cannot be transferred across fiscal years; and all of the affected programs would continue to exist
in places where the authority is exercised, since no state or LEA could transfer more than 50% of
its funds out of any program.
According to a study released by ED in July 2007,26 participation in Transferability is relatively
modest, with approximately 12-16% of LEAs participating in 2005-2006. Estimates of the level
of participation are complicated in part by the significant confusion at the LEA level between
REAP Flex and Transferability authorities, as well as many instances of conflicting reports on use
of Transferability between LEAs and SEAs (i.e., cases where states identified LEAs as
participating in the programs but the LEAs reported that they did not, and vice-versa). As with
REAP Flex, LEAs participating in Transferability most often moved funds out of ESEA Title II-A
(Teacher and Principal Training and Recruiting Fund) and, to a lesser extent, Title IV-A (Safe and
Drug-Free Schools and Communities), and most frequently into Titles I-A (Education for the
Disadvantaged) and V-A (Innovative Programs block grant).
Many LEAs reported using Transferability to partially compensate for reductions in formula
grants under ESEA Title I-A and V-A, to better target resources on schools failing to meet
adequate yearly progress standards under Title I-A, or to be able to use funds with the high degree
of flexibility allowed under Title V-A. According to this evaluation report, the reasons most
frequently cited by LEAs for not participating in Transferability included a lack of information
about the authority, satisfaction with the existing level of flexibility under affected federal
programs, or funding levels too low to carry out desired activities even if the Transferability
authority were exercised.
26 “Flexibility Evaluation.”
Under a new State and Local Flexibility Demonstration Act (ESEA Title VI, Part A, Subpart 3),
up to seven states, selected on a competitive basis after peer review, may be authorized to
consolidate all of their state administration and state activity funds under the Education for the
Disadvantaged (Title I-A), Reading First (Title I-B-1), Even Start (Title I-B-3), Teacher and
Principal Training and Recruiting Fund (Title II-A), State and Local Technology Grants (Title II-st
D-1), Safe and Drug Free Schools and Communities (Title IV-A-1), 21 Century Community
Learning Centers (Title IV-B), and Innovative Programs block grant (Title V-A) programs. Under
this “State-Flex” authority, the consolidated funds can be used for any purpose authorized under
any ESEA program (i.e., not just the activities authorized by the programs whose funds may be
This authority would be granted to states for a period of five years; states would lose the authority
if they fail to meet state AYP requirements for two consecutive years. ED may also terminate the
authority at any time if a state fails to comply with the terms of the flexibility authority. On the
other hand, if all of the requirements associated with this authority have been met at the end of
five years, the authority is to be renewed.
Each of the selected states is to enter into local performance agreements with between 4 and 10
LEAs; at least one-half of these LEAs must have school-age child poverty rates of 20% or more
(slightly above the national average of approximately 18%). These LEAs may consolidate funds
under the provisions of the local flexibility authority described below. These LEAs would be
required to align the use of the funds they consolidate under this authority with the state’s uses of
the funds which it consolidates. In addition, participating states may specify the purposes for
which all LEAs in the state use the funds they receive under the ESEA Title V-A Innovative
Programs block grant. This is in contrast to the general rule, noted above, that LEAs may use
Title V-A funds for whatever purpose they choose (among the wide range of purposes authorized
in Title V-A).
Thus far, State-Flex authority has been granted to only one state, Florida. However, Florida
withdrew before beginning to implement its State Flex plan. Therefore, thus far, no state has ever
participated in the State-Flex program.
Under a companion “Local-Flex” authority, up to 80 LEAs27 (no more than three per state
initially), plus the 4-10 LEAs per state that enter into agreements under the state flexibility
demonstration above, would be allowed to consolidate all of their funds under the Teacher and
Principal Training and Recruiting Fund (Title II-A), State and Local Technology Grants (Title II-
D-1), Safe and Drug Free Schools and Communities (Title IV-A-1), and Innovative Programs
block grant (Title V-A) programs, and to use these funds for any purpose authorized under any
27 Note: Section 6133 provides that single-LEA states (and entities treated as if they were states under the ESEA),
which would include the District of Columbia, Hawaii and Puerto Rico, are only eligible for the state flexibility
authority, not the separate LEA authority.
ESEA program. LEAs may use no more than 4% of the consolidated funds for administration.
The authority would be granted for a period of five years; LEAs would lose the authority if they
fail to meet state AYP requirements for two consecutive years, or if they fail to comply with the
requirements of the flexibility agreement. If LEAs meet the goals established in their agreements,
their authority would be renewed for another two-year term.
Under both the state and local flexibility demonstration programs, a limited number of specified
types of requirements—including those regarding civil rights, fiscal accountability (particularly
the requirement that funds be used only to supplement, and not supplant, non-federal funds), and
equitable participation by private school pupils and teachers—may not be waived. Participating
states and LEAs must also prepare and widely disseminate annual reports on how consolidated
funds are used under this authority. However, program requirements other than those specified
would not apply to the consolidated funds.
Only one LEA—Seattle, Washington—has ever participated in the Local-Flex program. Seattle’s
eligibility to participate has at least temporarily been suspended, because the LEA failed to make
AYP for two consecutive years. Reportedly, Seattle has recently applied for a new Local-Flex 28
Beginning in Spring 2002, ED conducted a multifaceted, sometimes complex, series of
competitions for State-Flex and Local-Flex authority. However, there has ultimately been very
little interest by states and LEAs in obtaining these authorities. As noted above, currently only
one LEA has ever participated in Local-Flex, and no states in State-Flex. One state, and eight
associated LEAs, initially received approval to participate in these programs, but they 29
subsequently withdrew. With respect to both State-Flex and Local-Flex, a recent ED study
reported that major barriers to participation included additional responsibilities but few or no
clear benefits, limited organizational capacity (especially during a period when many new NCLB
requirements had to be met), and limited dissemination of information about the programs.
A new round of competition for these authorities began on March 18, 2004, when ED published
in the Federal Register an announcement of a new, simultaneous round of competition for both
State-Flex and Local-Flex. There is no deadline for this competition. The announcement indicated
that, as an extra inducement to apply, states and LEAs participating in State-Flex or Local-Flex
would receive preference in future competitions for grants under relevant discretionary grant
programs administered by the Department. The rationale offered for this preference is that
“...State-Flex and Local-Flex participants have undergone comprehensive planning to improve
teacher quality and the academic achievement of all students, especially disadvantaged students, 30
and are held to a higher degree of accountability....”
28 “Flexibility Evaluation,” p. 7.
29 “Flexibility Evaluation”
30 Federal Register, March 18, 2004, p. 12481.
In comparison to the Transferability authority described earlier, State-Flex and Local-Flex are
relatively broad, since all of the funds under the affected programs may be involved, the funds
may be used for any purpose authorized under any ESEA program (including the exceptionally
wide range of activities authorized under Title V-A), and only a comparatively small number of
specified program requirements apply to the use of these funds. At the same time, the scope of
State-Flex and Local-Flex is more narrow in the sense that only a maximum of seven states (and
4-10 LEAs in each of these), plus up to 80 LEAs in other states, may participate. Nevertheless, as
indicated above, interest in these provisions on the part of SEAs and LEAs has thus far been very
limited, in spite of multiple invitations to compete for them over an extended period of time.
The scope of the State-Flex authority in particular is limited in at least two respects. First,
although state administration funds may be used for other purposes under this authority, states are
still responsible for meeting their administrative responsibilities under each program. Second, for
many of these programs, the overall share of funds that may be used for state administration plus
state-level activities is relatively small, and it is smallest for the largest affected program. This
relevant share of state total grants varies from 1% for ESEA Title I-A, by far the largest program
involved, to a high of 26.5% under the Safe and Drug-Free Schools and Communities program.
However, participating states would also be given substantial influence over the use of funds
consolidated by the 4-10 LEAs with local performance agreements, and over the use of
Innovative Programs block grant funds in all of the states’ LEAs.
In some respects, participating LEAs in the state demonstration program might have diminished
flexibility, because their use of consolidated funds must be aligned with the state use of funds
which they may consolidate, and because of the authority given to participating states to specify
LEA use of Title V-A funds. Finally, the inclusion of the ESEA Title V-A Innovative Programs
block grant in the Local-Flex authority (i.e., in states which do not participate in State-Flex) is of
limited significance in the sense that those funds may already be used for an exceptionally wide
range of activities.
It is instructive to compare the State-Flex and Local-Flex authority with flexibility authorities that
were contained in the earlier House- and Senate-passed versions of H.R. 1, the legislation which
was enacted as the NCLB. The final provisions are in most respects similar to language in the
House version of H.R. 1 authorizing local flexibility demonstrations in up to 100 LEAs, but may
be contrasted with a broader state and local flexibility/performance agreement authority that was
contained in the Senate version of H.R. 1. Even though the Senate program was not included in
the final legislation, it is worthy of mention because of the amount of debate it stimulated during 31
Senate and conference committee consideration of this legislation.
31 For a discussion of the flexibility authorities in the Senate- and House-passed versions of H.R. 1, see CRS Report
RL30835, Elementary and Secondary Education: Accountability and Flexibility in Federal Aid Proposals, by Wayne
C. Riddle, out of print but available from the author on request.
Overall, the flexibility/performance agreement provisions of the Senate-passed version of H.R. 1
would have provided significantly greater flexibility than the enacted State-Flex and Local-Flex
authorities, in return for at least marginally increased outcome accountability. At the same time,
all of these authorities are substantially more limited than optional performance agreement/grant th32
consolidation proposals considered, but not enacted, during the 106 Congress.
The scope of the H.R. 1/Senate flexibility/performance agreement authority was the same in
terms of the maximum number of participating states (7), and more narrow in number of LEAs in
other states (25), which could participate. The types of program requirements (e.g., civil rights,
fiscal accountability) which continued to apply to the use of consolidated funds was similar.
However, the range of ESEA programs subject to the flexibility authority was much more broad
and involved substantially higher levels of funding, incorporating most state-administered
formula grant programs authorized by the ESEA, including such programs as Title I-A grants for 33
Education of the Disadvantaged, and Limited English Proficient/Immigrant Education. As with
State-Flex and Local-Flex, funds could be used for activities authorized under any of the
combined programs, including the exceptionally wide range of authorized activities under the
Innovative Programs block grant. Under the performance agreement authority, participating states
could in general have reallocated funds under all of the affected programs among and within
LEAs as long as the resulting allocations targeted funds on concentrations of poor children at
least as well as the statutory formulas; State-Flex provides no similar authority to reallocate funds
The additional element of outcome accountability required of participating states and LEAs under
the Senate version of H.R. 1 is that they would have been required to exceed AYP goals by a
statistically significant amount. This would mean that achievement gains in excess of those
required under state AYP standards must be sufficiently large that they are unlikely to have
resulted from random variations in pupil achievement scores. While statistically significant, such
an amount would not necessarily be large, especially in a state or LEA with a large pupil
This report concludes with an analysis of selected cross-cutting issues that have arisen with
respect to the special forms of flexibility described above. We introduce this topic with a brief
review of the common themes of both the new forms of flexibility included in the NCLB, and the
special flexibility authorities enacted previously. In general, these flexibility authorities exhibit
the following characteristics.
32 See CRS Report RL30393, “Academic Achievement for All Act (Straight A’s Act)”—Background and Analysis, by
Wayne C. Riddle, out of print but available from the author on request.
33 Most requirements regarding uses of funds in Title I-A schoolwide and targeted assistance programs would have
continued to apply (with the schoolwide eligibility percentage reduced to 35%), as would the Title I-A requirements
regarding standards, assessments, accountability, and parental involvement.
• They increase the ability of states and/or LEAs to use federal aid funds more
thoroughly in accordance with their own priorities (which may or may not be
consistent with federal priorities) than would otherwise be possible.
• Each of the special flexibility authorities is significantly limited in terms of the
number of states and LEAs that may participate, the number and size of the
ESEA and related programs affected, and/or the range of program requirements
that may be waived.
• With the major exceptions of the Transferability authority, the Innovative
Programs block grant, and Title I-A schoolwide programs, states and/or LEAs are
allowed to waive a variety of federal program requirements in return for some
degree of accountability based on pupil achievement outcomes. However, the
outcome accountability requirements are essentially just increased attention to,
and/or consequences related to, outcome accountability requirements that are
applicable to all states and LEAs participating in Title I-A and other ESEA
• These special flexibility authorities, particularly those enacted as part of the
NCLB, have been adopted in a policy context of substantially increased
accountability requirements and authorized degrees of flexibility in general for
the ESEA and related federal programs.
• At least one of the flexibility authorities adopted under the NCLB has been
utilized by an estimated 12-16% of all LEAs (Transferability), while interest in
others has been very limited (State-Flex, Local-Flex). However, REAP Flex is
the most widely used flexibility authority among eligible small, rural LEAs.
• The flexibility authorities often include a variety of requirements for regular
reporting on ways in which the authorities have been used, and the impact of
increased flexibility on pupil achievement. However, there is very limited
information regarding the specific impact of special forms of flexibility on pupil
Selected cross-cutting issues associated with these and other common characteristics of special
flexibility authorities are discussed below.
The current flexibility authorities are restricted in many important respects, and it may be
questioned whether they address the primary concerns of states and LEAs about restrictions on
the use of federal funds or administrative burdens accompanying participation in federal
programs. While broad in terms of the potential uses of funds and federal programs covered, the
ESEA Title I-A schoolwide program authority is limited to the school level, and only schools with
low-income pupil rates somewhat above average may generally qualify. Further, as noted earlier,
the significance of this authority with respect to programs other than Title I-A is quite limited.
The Secretarial case-by-case waiver authorities are limited by the necessity of submitting
individual requests to the U.S. Secretary of Education. In most cases, LEAs must similarly apply
to their SEAs for waivers under the Ed-Flex authority. While almost all states and most LEAs
may exercise the fund Transferability authority, none may transfer more than 50% of the funds
received under any program, and therefore all of the requirements associated with participating in
any of the affected programs must still be met. The rural LEA flexibility authority is available to
only a select group of exceptionally low-enrollment LEAs.
In addition, the amount of funds subject to State-Flex authority is limited, and only seven states
may participate. Local-Flex authority affects only a limited range of programs and is available in
a maximum of only 80 LEAs plus 28-70 LEAs in State-Flex states. The limited increase in
flexibility provided by these authorities is a probable reason for the very low rate of participation
in these authorities thus far.
Importantly, there are several types of requirements that cannot be waived under any of these
authorities, including those involving fiscal accountability, participation by private school pupils
and staff, or the increasingly important ESEA Title I-A requirements regarding standards,
assessments, and school/LEA accountability for pupil achievement. It is noteworthy that many of
the flexibility authorities do not include the largest ESEA program, Title I-A, and none of them
would allow states to reallocate funds among LEAs.
Further, the authors of a 1999 Government Accountability Office (GAO) report (Elementary and
Secondary Education: Ed-Flex States Vary in Implementation of Waiver Process. HEHS-99-17)
found that the flexibility authorities enacted as of that time do not address the main regulatory
burdens of states and LEAs, which are associated with requirements under the IDEA, the
Americans with Disabilities Act, child nutrition program administration, and environmental
requirements (e.g., underground storage tanks and asbestos removal). According to this GAO
report, SEA staff in some states think Ed-Flex is of limited value because of the relatively few
programs and requirements that may be waived. In contrast, SEA staff in other states think its
usefulness extends beyond specific use of the authority, through creating a “climate that
encourages innovation and flexibility.” These remarks would apply also to the new authorities
enacted in 2001 and 2002.
Finally, it is significant that these authorities have been adopted during a period when “regular”
federal program requirements have become more flexible in some important respects. For
programs such as ESEA Title I-A, the increased emphasis on outcome accountability beginning in
1994 and continuing under the NCLB has been accompanied by generally increased flexibility for
all LEAs and schools in determining how funds may be used, especially in the schoolwide
programs which have become the dominant service mode for this program. The NCLB
consolidated major groups of programs related to teachers and educational technology, giving
states and LEAs substantially greater flexibility in deciding how to use these funds. In this
context, the additional flexibility provided by the special authorities described above seems
relatively marginal in many respects.
Proponents of increased flexibility in federal education programs often argue that waivers can
remove federal regulatory barriers to local educational reform and initiative. Very limited
information is available on the use of the new forms of flexibility authorized under the NCLB,
partly because of low participation in some of them. Available information on waivers granted
under pre-NCLB authorities indicates that they have been used for relatively few purposes, at
least some of which were not clearly related to innovation or reform. In addition, several of the
requirements which were frequently waived in the past were subsequently eliminated or made
less restrictive for all states and LEAs by the NCLB. At the same time, the ESEA Title IX-D
authority has been used to allow a limited number of states to participate in a growth model pilot
for determining adequate yearly progress (AYP) under the ESEA Title I-A accountability
provisions, a widely supported modification of that program.
As was discussed above, a recent study prepared for ED34 found that under the two recently-
adopted forms of flexibility authority that are widely used—REAP Flex and Transferability—this
authority was most often used to move funds out of ESEA Title II-A (Teacher and Principal
Training and Recruiting Fund) and, to a lesser extent, Title IV-A (Safe and Drug-Free Schools and
Communities), and most frequently into Titles I-A (Education for the Disadvantaged) and V-A
(Innovative Programs block grant). Many LEAs reported using these authorities to partially
compensate for reductions in formula grants under ESEA Title I-A and V-A, to better target
resources on schools failing to meet adequate yearly progress standards under Title I-A, or to be
able to use funds with the high degree of flexibility allowed under Title V-A.
In the pre-NCLB era, Secretarial waivers, Ed-Flex and other pre-NCLB flexibility authorities
during the mid- to late-1990s were most often used to waive the following requirements: (1) the
minimum low-income pupil percentage threshold for ESEA Title I-A schoolwide program
eligibility (before this was reduced under the NCLB); (2) within-LEA targeting of Title I-A funds
on schools with the highest number or percentage of pupils from low-income families; (3)
deadlines for adoption and implementation of standards and assessments under ESEA Title I-A;
and (4) a series of limitations on the use of funds under two pre-NCLB programs related to
teacher recruitment and training: the Class Size Reduction (CSR) and Eisenhower Professional 35
Development Programs. Each of these categories is briefly discussed below.
Although schoolwide programs offer a great deal of flexibility to use funds under not only Title I-
A but also most other federal programs in ways that might not ordinarily be allowed, it has been
questioned whether schools with relatively low percentages of their pupils from low-income
families should be granted this authority. If schools with relatively low poverty rates receive
permission to operate schoolwide programs, the scope of these programs might be limited (since
the size of a school’s Title I-A grant is based on its number of children from low-income
families), and it would be difficult for such a modest program to have a significant schoolwide
impact. Further, no systematic evidence is available that schoolwide programs are more effective
than more traditional “targeted assistance” Title I-A programs in improving the education of
The use of waivers to maintain or expand the number of schools participating in Title I-A would
tend to disperse Title I-A funds among an increased number of relatively low-poverty schools,
reducing the concentration of funds on high-poverty schools. As noted above, Ed-Flex places
restrictions on, but does not prohibit, waivers regarding ESEA Title I-A school selection.
The use of waivers to delay meeting deadlines for implementing ESEA Title I-A standard and
assessment requirements arguably undercut the most substantial pre-NCLB outcome
34 “Flexibility Evaluation.”
35 See, for example, the Notice of Waivers Granted, Federal Register, May 2, 2000.
accountability requirement. This increasingly important aspect of federal requirements is
discussed further below.
With respect to the former CSR and Eisenhower programs, LEAs and states frequently requested
the waiver of requirements intended to: focus teacher hiring on the early elementary grades;
require small LEAs to form consortia if their CSR grants were too small to pay the salary of a
new teacher; ensure that minimum shares of teacher training funds would be used to support
instruction in the subject areas of mathematics and science; or to limit the share of CSR funds
used for professional development (as opposed to hiring new teachers). Such waivers appear
generally to have been requested to accommodate relatively strict and specific limitations on the
use of funds to varying local conditions.
Following enactment of the NCLB, some of these formerly common uses of Ed-Flex and other
pre-NCLB flexibility authorities are no longer as relevant as in the past. As noted earlier, the
NCLB lowered the schoolwide program eligibility threshold to 40% of pupils from low-income
families nationwide (although some may still seek Ed-Flex or Secretarial waivers for schools
below 40% to conduct schoolwide programs). The CSR and Eisenhower programs were
consolidated into a broader and more flexible ESEA Title II program supporting teacher and
principal recruitment and training. As noted earlier, relatively few substantive waivers have been
grated under the ESEA Title IX-D during the post-NCLB era.
Regarding the impact of special forms of flexibility on pupil achievement or other outcomes, only
limited information has been available. Although states that received Ed-Flex authority have been
required to submit annual reports to ED on waivers granted and their impact, the information
reported by the original 12 Ed-Flex states (under the pre-P.L. 106-25 authority) was of limited
value, and no reports have yet been published on the actual purposes of waivers or their effects in 36
states under the Ed-Flex authority enacted in 1999. Anecdotal information on the achievement
effects of a number of Ed-Flex and Secretarial waivers in a limited number of LEAs was included
in a 1999 ED report (Waivers: Flexibility to Achieve High Standards). The information in this
report was primarily limited to whether affected LEAs or schools met state AYP standards in
effect at the time.
At the same time, supporters of special flexibility authorities often point to broader forms of
evidence of their impact on state and local public education systems. These arguments are 37
reflected in a 1998 ED report on Ed-Flex, the authors of which concluded that Ed-Flex authority
has supported standards-based reform in the affected states in three major ways:
• Ed-Flex “facilitates the coordination of programs and strengthens the planning
process,” by encouraging LEAs and schools to develop instructional programs
without regard to the perceived constraints of many standard federal or state
36 See 2001 Report to Congress on the Implementation of the Education Flexibility Partnership Act of 1999, July 25,
37 Goals 2000: Reforming Education to Improve Student Achievement, Appendix B, April 30, 1998.
• Ed-Flex “provides the opportunity for States to streamline the administration of
programs” by reducing paperwork deemed unessential to meeting basic purposes
of federal programs.
• Ed-Flex “supports the use of resources in a way that can, together with the
implementation of standards-based approaches, lead to increased student
achievement and reduction in the gap in achievement between different
populations” by shifting oversight focus away from inputs or procedures and
Given the limited amount of data showing improved pupil achievement outcomes in states, LEAs,
or schools to which special forms of flexibility have been granted, the conclusions by ED
(immediately above) should presumably be considered to be debatable. This is related to a final
aspect of this set of issues: Will sufficient information be available on the use of special flexibility
authorities, and their effects on pupil achievement, to make it possible to analyze or judge their
benefits and impact?
As mentioned earlier, while the statutes authorizing several forms of flexibility include significant
requirements for reporting to and by ED on the use of waivers and other special authorities, and
the pupil achievement and other effects of these activities, little relevant information has been
disseminated by ED. Efforts by ED to compile and publish information on the use of waiver or
other special flexibility authorities seem to have been a priority only infrequently. This makes it
very difficult to evaluate the significance, advantages, and disadvantages of these flexibility
A basic question regarding all special forms of flexibility is whether the increased emphasis on
outcomes that is typically associated with them—whether or not such additional outcome
requirements are substantial—is an adequate substitute for other forms of accountability
requirements, such as required targeting of services on priority activities or high need pupil
groups, which may be diminished through the grant of flexibility.
In general, the outcome accountability requirements associated with either obtaining or
maintaining the special flexibility authorities in this report are a combination of (a) goals
established by the states and LEAs themselves, either in the implementation of programs such as
Ed-Flex or in competing for (and ultimately implementing) State-Flex or Local-Flex authority;
and (b) meeting the state-established adequate yearly progress (AYP) requirements under ESEA
Title I-A. In some cases, such as the Innovative Programs block grant or Title I-A schoolwide
programs, there is no direct linkage between the flexibility authority and any form of outcome 38
38 Like all schools participating in Title I-A, schoolwide programs must meet AYP standards, but their eligibility to
operate as a schoolwide program is not dependent on meeting the AYP requirements.
Regarding (a) above, the most substantial evidence is contained in a GAO study,39 which found
that states granted Ed-Flex authority under the original (pre-P.L. 106-25) legislation differed
substantially in the clarity and specificity of their outcome goals related to the granting of
waivers. Five of the original 12 Ed-Flex states had set no specific objectives at all for LEAs or
schools being granted waivers, and only one of the states had established outcome objectives that
were specifically linked to the LEAs, schools, and pupils affected by the waivers. The GAO study
further concluded that ED oversight of Ed-Flex implementation by the states was limited,
involving mostly the collection of annual reports from the states with highly varying degrees of
detail in the information they provided.
If such practices continue, then the most significant (and the only concrete) outcome
accountability requirement associated with any of the special flexibility authorities is (b) above,
meeting AYP requirements. Thus, the current flexibility authorities do not actually require
substantial additional outcome accountability for participating LEAs and states—that is,
accountability for pupil outcomes beyond that which is applicable to all other states and LEAs
participating in Title I-A and other ESEA programs. Instead, they place increased emphasis on,
attention to, and consequences for failing to meet, generally applicable outcome accountability
Although this outcome requirement is not an additional one, in comparison to states and LEAs
which do not receive special flexibility authority, it may nevertheless be substantial, as states 40
continue to implement the AYP and related requirements under the NCLB. While all schools,
LEAs, and states are required to meet these requirements, and are to face a variety of
consequences if they fail to do so, those with special flexibility authority would have an
additional incentive to meet the requirements (i.e., to maintain their eligibility to exercise the
flexibility authority), and an additional negative consequence of failing to do so.
While limited, such an enhancement of outcome accountability requirements may be consistent
with the nature of the special flexibility authorities described in this report. In many respects, both
the additional flexibility and the increased outcome accountability are quite limited. At the same
time, these provisions take effect in the context of recent legislation, particularly the NCLB,
which substantially expands both outcome accountability requirements and, at least in some
major respects, flexibility in the use of federal aid funds for all states, LEAs, and schools,
whether or not they have been granted one of the special flexibility authorities described in this 41
Finally, some proponents of high degrees of state and local flexibility in the use of federal K-12
education aid funds often argue that no increase in outcome or other accountability requirements
is necessary to justify the granting of special forms of flexibility. To such proponents, increasing
the ability of states and LEAs to use federal funds for purposes which they deem to be most
appropriate and effective is sufficient justification for such policies, and is most likely to lead to
improved pupil outcomes.
39 Elementary and Secondary Education: Ed-Flex States Vary in Implementation of Waiver Process, (GAO/HEHS-99-
17, November 13, 1998).
40 For a discussion of the AYP and other ESEA Title I-A accountability requirements under the NCLB, see CRS Report
RL32495, Adequate Yearly Progress (AYP): Implementation of the No Child Left Behind Act, by Wayne C. Riddle.
41 For an overview of the accountability, flexibility, and other provisions of the NCLB overall, see CRS Report
RL31284, K-12 Education: Highlights of the No Child Left Behind Act of 2001 (P.L. 107-110), coordinated by Wayne
At the same time, critics of these authorities might argue that there is no justification for granting
special forms of flexibility in return for little or nothing more than the same outcome
accountability requirements which are applicable to states, LEAs, and schools which have not
been granted such authority. Such critics often defend the full range of generally applicable
accountability requirements as embodying important national priorities, and are concerned that
special flexibility authorities not only have insufficient accountability provisions, but have been
used thus far largely for purposes that have not been proven to increase program effectiveness.
Wayne C. Riddle
Specialist in Education Policy