Sen. Margaret Dayton: The Conundrum of the Common Core Waiver

DaytonMBy Senator Margaret Dayton

I had the opportunity to address the State School Board today (on Friday, August 8, 2014) about the legislative intent of a bill that I passed nearly a decade ago.

HB 135 was passed in 2005, but the drafting and crafting process took a full two years. During the 2004 interim, every single education committee meeting discussed the onerous ramifications of No Child Left Behind (NCLB) and what could be done. HB 135 was the result of some of those discussions.

When the bill was considered in the 2005 Legislative Session, each committee and floor vote was unanimous in favor. However, the clock ran out and session ended before the final vote was taken in the senate. A month later, in special session, the same bill passed with only a few dissenting votes. In addition to the strong legislative backing, I had notes and letters of support from Congressman Matheson, Congressman Cannon, UEA, PTA and State School Board members as well as many, many parents and teachers.

On the very day that the bill passed its final reading in the Senate, Governor Huntsman was in Washington D.C. meeting with the Department of Education to express the how the burdensome NCLB requirements had forced us to divert our limited state funds to meet the new and unfunded federal reporting mandates. Everyone knew even then that the requirements of NCLB were unattainable, and through its mandates Utah was being required to redirect our precious education dollars away from local discretionary spending and into these new and useless regulations.

When then Senate President Valentine cast his affirmative vote, he noted that this bill was indeed the best way to respond to the deceptive promises that were given to the states from the Department of Education regarding our ability to maintain local control through NCLB.

HB 135 did not debate the merits of federal education programs. That is the task of the State School Board. What it did do was give the state, a way to navigate these deceptive promises and created a plan for sorting out conflicts between federal legislation and state issues.

HB 135 was designed to empower the State Board to

[I]nterpret the provisions of federal programs in the best interest of students in this state; maximize local control and flexibility; minimize additional state resources that are diverted to implement federal programs beyond the federal monies that are provided to fund the programs; [and] request changes to federal educational programs, especially programs that are underfunded or provide conflicts with other state or federal programs.

It further directs school officials to “seek waivers from all possible federal statutes, requirements, regulations and program provisions from federal education [and] to maximize state flexibility in implementing programs and provisions.”

Some may have interpreted this now codified direction to mean that the State Board must now reapply for this waiver from NCLB. This is a point I want to clarify.

School officials are directed, if certain criteria are met–such as contradictions or conflicts between state and federal program requirements or excessive use of state funds for federal program implementation–to lobby for exemptions. In fact, the law clearly states that school officials are to lobby federal officials for these exemptions as part of their “normal duties.”

I suspect that part of the current confusion about this particular waiver is two-fold.

First, you do not need to seek this waiver. In fact this “waiver” is not actually a waiver at all, but simply an alteration of required mandates.

This first problem leads to the second problem, which is that the Federal Department of Education seems to have redefined the word “waiver” so that it no longer means “exemption” which was clearly the meaning when it is referenced and allowed in NCLB. But now “waiver” seems to mean “we won’t hold you accountable for one set onerous unconstitutional obligations if you will agree to another set of onerous unconstitutional obligations.” (Section 9401 of NCLB refers to the waiver process.)

In fact, HB 135 gave very specific direction as to what the trigger should be to requesting a waiver from federal education programs. It states, “School officials shall request a waiver under Section 9401 of the No Child Left Behind Act of any provision of the No Child left Behind Act that violates Section 9527.” (Emphasis added)

This is what section 9527 says:


(a) GENERAL PROHIBITION- Nothing in this Act shall be construed to authorize an officer or employee of the Federal Government to mandate, direct, or control a State, local educational agency, or school’s curriculum, program of instruction, or allocation of State or local resources, or mandate a State or any subdivision thereof to spend any funds or incur any costs not paid for under this Act.

(b) PROHIBITION ON ENDORSEMENT OF CURRICULUM- Notwithstanding any other prohibition of Federal law, no funds provided to the Department under this Act may be used by the Department to endorse, approve, or sanction any curriculum designed to be used in an elementary school or secondary school.


(1) IN GENERAL- Notwithstanding any other provision of Federal law, no State shall be required to have academic content or student academic achievement standards approved or certified by the Federal Government, in order to receive assistance under this Act.

(2) RULE OF CONSTRUCTION- Nothing in this subsection shall be construed to affect requirements under title I or part A of title VI.

(d) RULE OF CONSTRUCTION ON BUILDING STANDARDS- Nothing in this Act shall be construed to mandate national school building standards for a State, local educational agency, or school.

Clearly the intent of HB 135, which is now Utah code, is to direct and support the State School Board in seeking waivers that would protect local control, not “waivers” that would just subject our curriculum and standards to federal approval.

Along those lines, the U.S. Secretary of Education has broken the law. Current federal law clearly says that the federal government may not be involved in curriculum content, nor can they require specific academic standard content as a contingency for federal funds. But by requiring states to adopt Common Core standards, prior to applying for Race to the Top Funds, that is what was done.

Last week, in a court filings for Louisiana, Gov. Bobby Jindal stated that federal involvement with the Common Core is a “carefully orchestrated scheme to control curriculum in the states” and that the current administration is “trying to accomplish very indirectly what Congress has told them they can’t do.”

The right of educating children has always been reserved for the states. HB 135 was designed to empower the State Board to push back and maintain that right. HB 135 led out and established a way for our state to stand firm in the face exactly what is happening with current waiver conundrum.

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