Response to U.S. Dept. of Education communication regarding need for public comment on waiver extension requests:

In your e-mail response dated December 3, 2021, you indicated that public comment is only required under ESEA section 8401 for a State’s “original request for a waiver” of the 1.0 percent cap on the number of all students who may be assessed with an AA-AAAS, but is not required for “waiver extension requests under section 8401 of the [ESEA].” We believe this position is wrong as a matter of both law and policy.

You also noted that “34 C.F.R. §200.6(d)(which relates specifically to 1% waivers and waiver extensions) also does not explicitly require public comment for waiver extensions.” We presume that this regulatory reference is a typo and you intended to cite 34 C.F.R. §200.6(c) not (d).  In any case, we respectfully disagree with your conclusion.  

It is our position, based on the following, that any request to ED by a State for a waiver of the 1 percent cap [initial, extension, or combined] must be pursuant to section 8401, for one year. 20 U.S.C.§8401, 34 C.F.R. §200.6(c)(4). Section 8401 requires that the State provide a reasonable opportunity for public comment. 

Section 8401 of the statute expressly provides that “[i]n the case of a waiver request submitted by a State educational agency…” the State is required “to provide the public...with notice and a reasonable opportunity to comment and provide input on the request…” as well as “provide notice and a reasonable time to comment to the public…in the manner in which the applying agency customarily provides similar notice and opportunity to comment to the public.” 20 U.S.C. §8401(b)(3).  Notably this statutory language requiring public comment refers explicitly to a “waiver request”; it does not distinguish between a request for an “initial” waiver versus a waiver request for an “extension”, or a combined request for an “initial/new” waiver and/or a waiver for an “extension” as described in USED memorandum of June 9, 2020 re Additional Information Regarding the Requirements to Request a Waiver for the 2020-2021 School Year (SY) from the One Percent Cap.

Subsection (d)(2) of Section 8401 provides that ED may extend the period of a waiver that has been granted to a State if the State demonstrates that
“(A) the waiver has been effective in enabling the State or affected recipient to carry out the activities for which the waiver was requested and the waiver has contributed to improved student achievement; and
“(B) the extension is in the public interest.”

While it could be argued based on this language that once the waiver has been granted, there is no public comment requirement on a request to extend it, it makes little sense as a matter of law or policy for the Secretary to purport to make a determination as to whether a waiver “has been effective” in the terms set out in (A) and whether the extension “is in the public interest” under (B) without benefit of public comment from outside the State agency. 

Moreover, subsection (d)(2)’s failure to reiterate the requirements of subsection (b) for seeking a waiver of the 1 percent cap, does not negate nor undermine the prerequisites for a State requesting such a waiver, including, inter alia, providing an opportunity for public comment. Rather, as a matter of statutory interpretation, the language of subsequent subsection (d)(2), which describes additional indicia that the State must demonstrate for the Secretary to consider extending the period covered by a waiver, must be read in a manner consistent with the prerequisites set forth in subsection (b) of Section 8401. There is no statutory or regulatory basis for ED’s exempting the requirement for public comment.
This interpretation is consistent with ED’s own memorandums on the topic which provided information for States that may wish to apply to extend their existing one-year waiver for an additional year:

• Memorandum issued August 27, 2018 stated: “In preparing a waiver renewal request, States must continue to meet each requirement associated with the first-year waiver.”
• Memorandum issued June 9, 2020 stated: “In preparing a waiver renewal request, the State must continue to meet each requirement associated with the first waiver it received from this requirement.”
• Memorandum issued October 29, 2021 stated: “In preparing a waiver renewal request, the State must continue to meet each requirement associated with the first waiver it received from this requirement (except for the 95 percent participation rate, as discussed above).”

The final regulations at 34 C.F.R. §200.6(c)(4)(i)-(iv) set forth the requirements that must be met by a State requesting that ED “waive the [1.0 percent] cap for the relevant subject, pursuant to section 8401 of the Act, for one year” (emphasis added). The regulations do not expressly reference ‘public comment’ or distinguish (as suggested by your correspondence to us) between waivers and extensions with respect to public comment. However, they do expressly refer to Section 8401 of ESEA which contains the abovementioned statutory mandate that a State requesting a waiver of the 1.0 percent cap shall provide a reasonable opportunity for public comment. Furthermore, subsection (v) of 34 C.F.R. §200.6(c)(4) states that: “If the State is requesting to extend a waiver for an additional year, [such request must] meet the requirements in paragraph (c)(4)(i) through (iv) of this section [i.e., the regulations requirements for the waiver] and demonstrate substantial progress towards achieving each component of the prior year’s plan and timeline required under paragraph (c)(4)(iv) of this section.”

It should also be relevant to ED that the requirements in §200.6(c)(4)(v) for a State requesting to extend a waiver do not fully capture the statutory requirements of subsection 8401(d)(2) of the ESEA. In addition to meeting the requirements of (c)(4)(i)-(iv) [including public comment pursuant to Section 8401(b)(3)] and demonstrating “substantial progress” toward achieving each component of the prior year’s plan and timeline, the State must demonstrate that the waiver “has been effective” consistent with (A) of subsection 8401(d)(2), and “is in the public interest” under (B).

Lastly, we wish to point out that ED’s interpretation appears to be in conflict with the current administration’s emphasis on the involvement of stakeholders in all aspects of policy. This emphasis is apparent in ED’s regulations requiring “meaningful consultation” in the development of SEA and LEA plans for the spending of ESSER funds distributed via the American Rescue Plan Act as well as the January 20, 2021 Executive Order, Advancing Racial Equity and Support for Underserved Communities Through the Federal Government and the December 13, 2021 Executive Order, Transforming Federal Customer Experience and Service Delivery to Rebuild Trust in Government. In fact, the OMB report, required by the January 20, 2021 E.O. 13985 and submitted to the White House in July 2021, found that:

“The Federal Government needs to expand opportunities for meaningful stakeholder engagement. Stakeholder engagement has evolved into a vital tool to identify urgent problems and innovative solutions, inform and shape decision- and policy-making, and create deeper collaborative relationships between policymakers and communities.”

As we previously emphasized, a State’s providing only a statement of intent – rather than its waiver request – for public comment is essentially useless since there is nothing on which to comment. More importantly, it robs the public of the opportunity to review the states’ plan to achieve the 1% cap and provide meaningful comment.

We ask that your office correct and revise its position and immediately contact the states that have merely provided notice of intent to seek a waiver, advise them of their lack of compliance with Sec. 8401 regarding public comment and other regulatory provisions, and require that they post their proposed waiver extension requests to provide the public with a reasonable opportunity to comment. We further ask that all future memorandums to states regarding waiver requests include information on the requirements of Section 8401.

Thank you for your attention to this issue,

Candace Cortiella
Director
The Advocacy Institute
Email: Candace@AdvocacyInstitute.org

Ricki Sabia
Senior Education Policy Advisor
National Down Syndrome Congress
Email: ricki@ndsccenter.org