§ 5891b. — Education flexibility partnership.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 20USC5891b]
TITLE 20--EDUCATION
CHAPTER 68--NATIONAL EDUCATION REFORM
SUBCHAPTER III--STATE AND LOCAL EDUCATION SYSTEMIC IMPROVEMENT
Sec. 5891b. Education flexibility partnership
(a) Educational flexibility program
(1) Program authorized
(A) In general
The Secretary may carry out an educational flexibility
program under which the Secretary authorizes a State educational
agency that serves an eligible State to waive statutory or
regulatory requirements applicable to one or more programs
described in subsection (b) of this section, other than
requirements described in subsection (c) of this section, for
any local educational agency or school within the State.
(B) Designation
Each eligible State participating in the program described
in subparagraph (A) shall be known as an ``Ed-Flex Partnership
State''.
(2) Eligible State
For the purpose of this section the term ``eligible State''
means a State that--
(A) has--
(i) developed and implemented the challenging State
content standards, challenging State student performance
standards, and aligned assessments described in section
1111(b) of the Elementary and Secondary Education Act of
1965 [20 U.S.C. 6311(b)], and for which local educational
agencies in the State are producing the individual school
performance profiles required by section 1116(a)(3) of such
Act; \1\ or
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\1\ See References in Text note below.
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(ii)(I) developed and implemented the content standards
described in clause (i);
(II) developed and implemented interim assessments; and
(III) made substantial progress (as determined by the
Secretary) toward developing and implementing the
performance standards and final aligned assessments
described in clause (i), and toward having local educational
agencies in the State produce the profiles described in
clause (i);
(B) holds local educational agencies and schools accountable
for meeting the educational goals described in the local
applications submitted under paragraph (4) and for engaging in
technical assistance and corrective actions consistent with
section 1116 of the Elementary and Secondary Education Act of
1965 [20 U.S.C. 6316], for the local educational agencies and
schools that do not make adequate yearly progress as described
in section 1111(b)(2) of such Act [20 U.S.C. 6311(b)(2)]; and
(C) waives State statutory or regulatory requirements
relating to education while holding local educational agencies
or schools within the State that are affected by such waivers
accountable for the performance of the students who are affected
by such waivers.
(3) State application
(A) In general
Each State educational agency desiring to participate in the
educational flexibility program under this section shall submit
an application to the Secretary at such time, in such manner,
and containing such information as the Secretary may reasonably
require. Each such application shall demonstrate that the
eligible State has adopted an educational flexibility plan for
the State that includes--
(i) a description of the process the State educational
agency will use to evaluate applications from local
educational agencies or schools requesting waivers of--
(I) Federal statutory or regulatory requirements as
described in paragraph (1)(A); and
(II) State statutory or regulatory requirements
relating to education;
(ii) a detailed description of the State statutory and
regulatory requirements relating to education that the State
educational agency will waive;
(iii) a description of clear educational objectives the
State intends to meet under the educational flexibility
plan;
(iv) a description of how the educational flexibility
plan is consistent with and will assist in implementing the
State comprehensive reform plan or, if a State does not have
a comprehensive reform plan, a description of how the
educational flexibility plan is coordinated with activities
described in section 1111(b) of the Elementary and Secondary
Education Act of 1965 [20 U.S.C. 6311(b)];
(v) a description of how the State educational agency
will evaluate, (consistent with the requirements of title I
of the Elementary and Secondary Education Act of 1965) [20
U.S.C. 6301 et seq.], the performance of students in the
schools and local educational agencies affected by the
waivers; and
(vi) a description of how the State educational agency
will meet the requirements of paragraph (8).
(B) Approval and considerations
The Secretary may approve an application described in
subparagraph (A) only if the Secretary determines that such
application demonstrates substantial promise of assisting the
State educational agency and affected local educational agencies
and schools within the State in carrying out comprehensive
educational reform, after considering--
(i) the eligibility of the State as described in
paragraph (2);
(ii) the comprehensiveness and quality of the
educational flexibility plan described in subparagraph (A);
(iii) the ability of the educational flexibility plan to
ensure accountability for the activities and goals described
in such plan;
(iv) the degree to which the State's objectives
described in subparagraph (A)(iii)--
(I) are clear and have the ability to be assessed;
and
(II) take into account the performance of local
educational agencies or schools, and students,
particularly those affected by waivers;
(v) the significance of the State statutory or
regulatory requirements relating to education that will be
waived; and
(vi) the quality of the State educational agency's
process for approving applications for waivers of Federal
statutory or regulatory requirements as described in
paragraph (1)(A) and for monitoring and evaluating the
results of such waivers.
(4) Local application
(A) In general
Each local educational agency or school requesting a waiver
of a Federal statutory or regulatory requirement as described in
paragraph (1)(A) and any relevant State statutory or regulatory
requirement from a State educational agency shall submit an
application to the State educational agency at such time, in
such manner, and containing such information as the State
educational agency may reasonably require. Each such application
shall--
(i) indicate each Federal program affected and each
statutory or regulatory requirement that will be waived;
(ii) describe the purposes and overall expected results
of waiving each such requirement;
(iii) describe, for each school year, specific,
measurable, educational goals for each local educational
agency or school affected by the proposed waiver, and for
the students served by the local educational agency or
school who are affected by the waiver;
(iv) explain why the waiver will assist the local
educational agency or school in reaching such goals; and
(v) in the case of an application from a local
educational agency, describe how the local educational
agency will meet the requirements of paragraph (8).
(B) Evaluation of applications
A State educational agency shall evaluate an application
submitted under subparagraph (A) in accordance with the State's
educational flexibility plan described in paragraph (3)(A).
(C) Approval
A State educational agency shall not approve an application
for a waiver under this paragraph unless--
(i) the local educational agency or school requesting
such waiver has developed a local reform plan that is
applicable to such agency or school, respectively;
(ii) the waiver of Federal statutory or regulatory
requirements as described in paragraph (1)(A) will assist
the local educational agency or school in reaching its
educational goals, particularly goals with respect to school
and student performance; and
(iii) the State educational agency is satisfied that the
underlying purposes of the statutory requirements of each
program for which a waiver is granted will continue to be
met.
(D) Termination
The State educational agency shall annually review the
performance of any local educational agency or school granted a
waiver of Federal statutory or regulatory requirements as
described in paragraph (1)(A) in accordance with the evaluation
requirement described in paragraph (3)(A)(v), and shall
terminate any waiver granted to the local educational agency or
school if the State educational agency determines, after notice
and an opportunity for a hearing, that the local educational
agency or school's performance with respect to meeting the
accountability requirement described in paragraph (2)(C) and the
goals described in paragraph (4)(A)(iii)--
(i) has been inadequate to justify continuation of such
waiver; or
(ii) has decreased for two consecutive years, unless the
State educational agency determines that the decrease in
performance was justified due to exceptional or
uncontrollable circumstances.
(5) Oversight and reporting
(A) Oversight
Each State educational agency participating in the
educational flexibility program under this section shall
annually monitor the activities of local educational agencies
and schools receiving waivers under this section.
(B) State reports
(i) Annual reports
The State educational agency shall submit to the
Secretary an annual report on the results of such oversight
and the impact of the waivers on school and student
performance.
(ii) Performance data
Not later than 2 years after the date a State is
designated an Ed-Flex Partnership State, each such State
shall include, as part of the State's annual report
submitted under clause (i), data demonstrating the degree to
which progress has been made toward meeting the State's
educational objectives. The data, when applicable, shall
include--
(I) information on the total number of waivers
granted for Federal and State statutory and regulatory
requirements under this section, including the number of
waivers granted for each type of waiver;
(II) information describing the effect of the
waivers on the implementation of State and local
educational reforms pertaining to school and student
performance;
(III) information describing the relationship of the
waivers to the performance of schools and students
affected by the waivers; and
(IV) an assurance from State program managers that
the data reported under this section are reliable,
complete, and accurate, as defined by the State, or a
description of a plan for improving the reliability,
completeness, and accuracy of such data as defined by
the State.
(C) Secretary's reports
The Secretary, not later than 2 years after April 29, 1999,
and annually thereafter, shall--
(i) make each State report submitted under subparagraph
(B) available to Congress and the public; and
(ii) submit to Congress a report that summarizes the
State reports and describes the effects that the educational
flexibility program under this section had on the
implementation of State and local educational reforms and on
the performance of students affected by the waivers.
(6) Duration of Federal waivers
(A) In general
The Secretary shall not approve the application of a State
educational agency under paragraph (3) for a period exceeding 5
years, except that the Secretary may extend such period if the
Secretary determines that such agency's authority to grant
waivers--
(i) has been effective in enabling such State or
affected local educational agencies or schools to carry out
their State or local reform plans and to continue to meet
the accountability requirement described in paragraph
(2)(C); and
(ii) has improved student performance.
(B) Performance review
Three years after the date a State is designated an Ed-Flex
Partnership State, the Secretary shall review the performance of
the State educational agency in granting waivers of Federal
statutory or regulatory requirements as described in paragraph
(1)(A) and shall terminate such agency's authority to grant such
waivers if the Secretary determines, after notice and an
opportunity for a hearing, that such agency's performance
(including performance with respect to meeting the objectives
described in paragraph (3)(A)(iii)) has been inadequate to
justify continuation of such authority.
(C) Renewal
In deciding whether to extend a request for a State
educational agency's authority to issue waivers under this
section, the Secretary shall review the progress of the State
educational agency to determine if the State educational
agency--
(i) has made progress toward achieving the objectives
described in the application submitted pursuant to paragraph
(3)(A)(iii); and
(ii) demonstrates in the request that local educational
agencies or schools affected by the waiver authority or
waivers have made progress toward achieving the desired
results described in the application submitted pursuant to
paragraph (4)(A)(iii).
(7) Authority to issue waivers
Notwithstanding any other provision of law, the Secretary is
authorized to carry out the educational flexibility program under
this section for each of the fiscal years 1999 through 2004.
(8) Public notice and comment
Each State educational agency seeking waiver authority under
this section and each local educational agency seeking a waiver
under this section--
(A) shall provide the public with adequate and efficient
notice of the proposed waiver authority or waiver, consisting of
a description of the agency's application for the proposed
waiver authority or waiver in a widely read or distributed
medium, including a description of any improved student
performance that is expected to result from the waiver authority
or waiver;
(B) shall provide the opportunity for parents, educators,
and all other interested members of the community to comment
regarding the proposed waiver authority or waiver;
(C) shall provide the opportunity described in subparagraph
(B) in accordance with any applicable State law specifying how
the comments may be received, and how the comments may be
reviewed by any member of the public; and
(D) shall submit the comments received with the agency's
application to the Secretary or the State educational agency, as
appropriate.
(b) Included programs
The statutory or regulatory requirements referred to in subsection
(a)(1)(A) of this section are any such requirements for programs that
are authorized under the following provisions and under which the
Secretary provides funds to State educational agencies on the basis of a
formula:
(1) The following provisions of the Elementary and Secondary
Education Act of 1965 [20 U.S.C. 6301 et seq.]:
(A) Part A [20 U.S.C. 6311 et seq.] (other than sections
1111 and 1116 [20 U.S.C. 6311, 6316]), subpart 3 of part B [20
U.S.C. 6381 et seq.], and parts C, D, and F [20 U.S.C. 6391 et
seq., 6421 et seq., 6511 et seq.] of title I.
(B) Subparts 2 and 3 of part A of title II [20 U.S.C. 6621
et seq., 6631 et seq.].
(C) Subpart 1 of part D of title II [20 U.S.C. 6761 et
seq.].
(D) Subpart 4 of part B of title III [20 U.S.C. 6961 et
seq.], if the funding trigger in section 3001 of such Act [20
U.S.C. 6801] is not reached.
(E) Subpart 1 of part A of title IV [20 U.S.C. 7111 et
seq.].
(F) Part A of title V [20 U.S.C. 7201 et seq.].
(2) The Carl D. Perkins Vocational and Technical Education Act
of 1998 (20 U.S.C. 2301 et seq.).
(c) Waivers not authorized
The Secretary and the State educational agency may not waive under
subsection (a)(1)(A) of this section any statutory or regulatory
requirement--
(1) relating to--
(A) maintenance of effort;
(B) comparability of services;
(C) equitable participation of students and professional
staff in private schools;
(D) parental participation and involvement;
(E) distribution of funds to States or to local educational
agencies;
(F) serving eligible school attendance areas in rank order
under section 1113(a)(3) of the Elementary and Secondary
Education Act of 1965 [20 U.S.C. 6313(a)(3)];
(G) the selection of a school attendance area or school
under subsections (a) and (b) of section 1113 of the Elementary
and Secondary Education Act of 1965 [20 U.S.C. 6313(a), (b)],
except that a State educational agency may grant a waiver to
allow a school attendance area or school to participate in
activities under part A of title I of such Act [20 U.S.C. 6311
et seq.] if the percentage of children from low-income families
in the school attendance area of such school or who attend such
school is not less than 10 percentage points below the lowest
percentage of such children for any school attendance area or
school of the local educational agency that meets the
requirements of such subsections (a) and (b) of this section;
(H) use of Federal funds to supplement, not supplant, non-
Federal funds; and
(I) applicable civil rights requirements; and
(2) unless the underlying purposes of the statutory requirements
of the program for which a waiver is granted continue to be met to
the satisfaction of the Secretary.
(d) Treatment of existing Ed-Flex Partnership States
(1) In general
Except as provided in paragraphs (3) and (4), this section shall
not apply to a State educational agency that has been granted waiver
authority under the provisions of law described in paragraph (2) for
the duration of the waiver authority.
(2) Applicable provisions
The provisions of law referred to in paragraph (1) are as
follows:
(A) Section 311(e) of the Goals 2000: Educate America Act.
(B) The proviso referring to such section 311(e) under the
heading ``education reform'' in the Department of Education
Appropriations Act, 1996 (Public Law 104-134; 110 Stat. 1321-
229).
(3) Special rule
If a State educational agency granted waiver authority pursuant
to the provisions of law described in subparagraph (A) or (B) of
paragraph (2) applies to the Secretary for waiver authority under
this section--
(A) the Secretary shall review the progress of the State
educational agency in achieving the objectives set forth in the
application submitted pursuant to section 311(e) of the Goals
2000: Educate America Act; and
(B) the Secretary shall administer the waiver authority
granted under this section in accordance with the requirements
of this section.
(4) Technology
In the case of a State educational agency granted waiver
authority under the provisions of law described in subparagraph (A)
or (B) of paragraph (2), the Secretary shall permit a State
educational agency to expand, on or after April 29, 1999, the waiver
authority to include programs under subpart 2 of part A of title III
of the Elementary and Secondary Education Act of 1965 (other than
section 3136 of such Act).\1\
(e) Publication
A notice of the Secretary's decision to authorize State educational
agencies to issue waivers under this section, including a description of
the rationale the Secretary used to approve applications under
subsection (a)(3)(B) of this section, shall be published in the Federal
Register and the Secretary shall provide for the dissemination of such
notice to State educational agencies, interested parties (including
educators, parents, students, and advocacy and civil rights
organizations), and the public.
(Pub. L. 106-25, Sec. 4, Apr. 29, 1999, 113 Stat. 42; Pub. L. 107-110,
title X, Sec. 1073, Jan. 8, 2002, 115 Stat. 2090.)
References in Text
Section 1116(a)(3) of such Act, referred to in subsec. (a)(2)(A)(i),
means section 1116(a)(3) of Pub. L. 89-10. Section 1116 of Pub. L. 89-
10, which was classified to section 6317 of this title, was omitted in
the general amendment of subchapter I (Sec. 6301 et seq.) of chapter 70
of this title, and a new section 1116, which is classified to section
6316 of this title, was enacted, by Pub. L. 107-110, title I, Sec. 101,
Jan. 8, 2002, 115 Stat. 1439. The new section 1116 does not contain a
subsec. (a)(3).
The Elementary and Secondary Education Act of 1965, referred to in
subsecs. (a)(3)(A)(v), (b)(1), and (c)(1)(G), is Pub. L. 89-10, Apr. 11,
1965, 79 Stat. 27, as amended, which is classified generally to chapter
70 (Sec. 6301 et seq.) of this title. Title I of the Act is classified
generally to subchapter I (Sec. 6301 et seq.) of chapter 70 of this
title. Part A of title I of the Act is classified generally to part A
(Sec. 6311 et seq.) of subchapter I of chapter 70 of this title. Subpart
3 of part B of title I is classified generally to subpart 3 (Sec. 6381
et seq.) of part B of subchapter I of chapter 70 of this title. Parts C,
D, and F of title I are classified generally to parts C (Sec. 6391 et
seq.), D (Sec. 6421 et seq.), and F (Sec. 6511 et seq.), respectively,
of subchapter I of chapter 70 of this title. Subparts 2 and 3 of part A
of title II are classified generally to subparts 2 (Sec. 6621 et seq.)
and 3 (Sec. 6631 et seq.), respectively, of part A of subchapter II of
chapter 70 of this title. Subpart 1 of part D of title II is classified
generally to subpart 1 (Sec. 6761 et seq.) of part D of subchapter II of
chapter 70 of this title. Subpart 4 of part B of title III is classified
generally to subpart 4 (Sec. 6961 et seq.) of part B of subchapter III
of chapter 70 of this title. Subpart 1 of part A of title IV is
classified generally to subpart 1 (Sec. 7111 et seq.) of part A of
subchapter IV of chapter 70 of this title. Part A of title V is
classified generally to part A (Sec. 7201 et seq.) of subchapter V of
chapter 70 of this title. For complete classification of this Act to the
Code, see Short Title note set out under section 6301 of this title and
Tables.
The Carl D. Perkins Vocational and Technical Education Act of 1998,
referred to in subsec. (b)(2), is Pub. L. 88-210, Dec. 18, 1963, 77
Stat. 403, as amended, which is classified generally to chapter 44
(Sec. 2301 et seq.) of this title. For complete classification of this
Act to the Code, see Short Title note set out under section 2301 of this
title and Tables.
Section 311(e) of the Goals 2000: Educate America Act, referred to
in subsec. (d)(2), (3)(A), is section 311(e) of Pub. L. 103-227, which
was classified to section 5891(e) of this title and was repealed by Pub.
L. 106-113, div. B, Sec. 1000(a)(4) [title III, Sec. 310(i)], Nov. 29,
1999, 113 Stat. 1535, 1501A-265.
The proviso referring to such section 311(e) under the heading
``education reform'' in the Department of Education Appropriations Act,
1996, referred to in subsec. (d)(2)(B), is Pub. L. 104-134, title I,
Sec. 101(d) [title III], Apr. 26, 1996, 110 Stat. 1321-211, 1321-229;
renumbered title I, Pub. L. 104-140, Sec. 1(a), May 2, 1996, 110 Stat.
1327, which is set out as a note below.
Subpart 2 of part A of title III of the Elementary and Secondary
Education Act of 1965, referred to in subsec. (d)(4), means subpart 2 of
part A of title III of Pub. L. 89-10, as added by Pub. L. 103-382, title
I, Sec. 101, Oct. 20, 1994, 108 Stat. 3644, which related to State and
local programs for school technology resources, and was classified
generally to subpart 2 (Sec. 6841 et seq.) of part A of subchapter III
of this chapter prior to the general amendment of title III of Pub. L.
89-10 by Pub. L. 107-110, title III, Sec. 301, Jan. 8, 2002, 115 Stat.
1689, which enacted a new subpart 2 of part A, relating to
accountability and administration.
Section 3136 of such Act, referred to in subsec. (d)(4), means
section 3136 of Pub. L. 89-10, as added by Pub. L. 103-382, title I,
Sec. 101, Oct. 20, 1994, 108 Stat. 3648, which was classified to section
6846 of this title prior to the general amendment of title III of Pub.
L. 89-10 by Pub. L. 107-110, title III, Sec. 301, Jan. 8, 2002, 115
Stat. 1689.
Codification
Section was enacted as part of the Education Flexibility Partnership
Act of 1999, and not as part of the Goals 2000: Educate America Act
which comprises this chapter.
Amendments
2002--Subsec. (b). Pub. L. 107-110 reenacted heading without change
and amended text generally. Prior to amendment, text read as follows:
``The statutory or regulatory requirements referred to in subsection
(a)(1)(A) of this section are any such requirements for programs carried
out under the following provisions:
``(1) Title I of the Elementary and Secondary Education Act of
1965 (other than subsections (a) and (c) of section 1116 of such
Act).
``(2) Part B of title II of the Elementary and Secondary
Education Act of 1965.
``(3) Subpart 2 of part A of title III of the Elementary and
Secondary Education Act of 1965 (other than section 3136 of such
Act).
``(4) Title IV of the Elementary and Secondary Education Act of
1965.
``(5) Title VI of the Elementary and Secondary Education Act of
1965.
``(6) Part C of title VII of the Elementary and Secondary
Education Act of 1965.
``(7) The Carl D. Perkins Vocational and Technical Education Act
of 1998.''
Effective Date of 2002 Amendment
Amendment by Pub. L. 107-110 effective Jan. 8, 2002, except with
respect to certain noncompetitive programs and competitive programs, see
section 5 of Pub. L. 107-110, set out as an Effective Date note under
section 6301 of this title.
Additional State Educational Agencies Authorized To Waive Federal
Requirements
Pub. L. 104-134, title I, Sec. 101(d) [title III], Apr. 26, 1996,
110 Stat. 1321-211, 1321-229; renumbered title I, Pub. L. 104-140,
Sec. 1(a), May 2, 1996, 110 Stat. 1327, provided in part: ``That
notwithstanding section 311(e) of Public Law 103-227 [20 U.S.C.
5891(e)], the Secretary is authorized to grant up to six additional
State education agencies authority to waive Federal statutory or
regulatory requirements for fiscal year 1996 and succeeding fiscal
years''.
