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Calendar No. 570
105th Congress Report
2d Session 105-327
EDUCATION FLEXIBILITY AMENDMENTS OF 1998
September 14, 1998.--Ordered to be printed
Mr. Jeffords, from the Committee on Labor and Human Resources,
submitted the following
R E P O R T
[To accompany S. 2213]
The Committee on Labor and Human Resources, to which was
referred the bill (S. 2213) to allow all States to participate
in activities under the Education Flexibility Partnership
Demonstration Act, having considered the same, reports
favorably thereon with an amendment in the nature of a
substitute and recommends that the bill (as amended) do pass.
I. Purpose and summary..............................................1
II. Background and need for the legislation..........................2
III. History of the legislation and votes in committee................3
IV. Explanation of the bill and committee views......................4
V. Cost estimate....................................................5
VI. Regulatory impact statement......................................6
VII. Application of law to the legislative branch.....................6
IX. Additional views.................................................9
X. Changes in existing law.........................................12
I. Purpose and Summary
The purpose of S. 2213, as amended by the Senate Committee
on Labor and Human Resources, is to authorize the expansion of
the Education Flexibility Partnership Demonstration Program.
The primary objective is to give all States, that are qualified
and choose to do so, the opportunity to participate in the
education flexibility initiative.
S. 2213 amends section 311(e) of the Goals 2000: Educate
America Act. All States that participate in the Education
Flexibility Partnership Program (which will be referred to as
Ed-Flex throughout this report) would be allowed to waive
certain Federal regulations and requirements related to
elementary and secondary education to the extent it is
determined that the regulations and requirements were impeding
effective education reform.
Those 12 States currently participating in the Ed-Flex
program would be grandfathered into S. 2213. Any new State
choosing to participate in the Ed-Flex program must meet the
following eligibility requirements: 1) a State must either have
an approved Title I plan as described in section 1111(b) of the
Improving America's Schools Act or the State must demonstrate
substantial progress toward having an approved Title I plan; 2)
a State must waive its own State regulations and requirements
governing the implementation of Federal education programs; and
3) a State must hold local educational agencies accountable for
meeting the educational goals submitted in their local waiver
Under S. 2213, State educational agencies would not be
allowed to waive certain requirements such as those pertaining
to health, safety, or civil rights. In addition, States cannot
waive requirements pertaining to maintenance of effort,
comparability of services, nor those requirements that meet the
underlying purposes of the programs from which waivers have
II. Background and Need for the Legislation
More than 46 million children attend public schools in the
United States. These 46 million youngsters are enrolled in
87,000 public schools.
Federal education funding accounts for only 7 percent of
total resources allocated for education. Some experts suggest
that despite this rather low percentage in actual Federal
education spending, Federal education programs may result in
excessive administrative costs. Frank Brogan, Florida's
Commissioner of Education, has reported that Florida has 297
State employees overseeing $1 billion in federally funded
education programs and 374 employees to oversee $7 billion in
State education initiatives. In using this comparison,
Commissioner Brogan comments that it appears that more
individuals are required to oversee Federal programs than State
programs--``we at the State and local level feel the crushing
burden caused by too many Federal regulations, procedures, and
S. 2213 is a modest education reform. While giving States
flexibility, S. 2213 also demands high accountability
standards. Greater accountability is essential to improving our
Under the Ed-Flex program, the United States Department of
Education gives States the ability to grant individual school
districts temporary waivers from certain Federal requirements
that impede State and local efforts to improve education. To be
eligible, a State must also waiverelevant State education
regulations and must hold schools accountable for results. Many of the
12 States presently participating in Ed-Flex have used this flexibility
to enable school districts to maximize Federal resources for improved
Ed-Flex will also enhance program coordination and
strengthen planning processes. Through a better allocation of
resources, a simultaneous reduction of cumbersome regulations,
and the demand for greater accountability, the expansion of the
Ed-Flex program will be a positive contributing factor to
improving our education system.
III. History of the Legislation and Votes in Committee
The Education Flexibility Amendments of 1998, S. 2213 was
introduced by Senators Frist and Wyden. Cosponsors are Senators
Collins, DeWine, Ford, Glenn, Grassley, Helms, Kempthorne,
Kerrey, Roth, Smith of Oregon, Hagel, Levin, McConnell,
Hutchison, Domenici, and Bennett.
The Committee on Labor and Human Resources met in executive
session on July 22, July 29, and July 30, 1998 to consider S.
2213. Four amendments were unanimously adopted by voice vote.
The first amendment adopted was Senator Frist's amendment
package which strengthened State eligibility requirements,
removed Adult Education from the list of programs included as a
part of S. 2213, changed the scope of those technology programs
included in S. 2213, and authorized the continued existence of
the Ed-Flex program through 2002.
The second and third amendments the committee adopted were
offered by Senator Jeffords. The first amendment created an
Oregon Institute of Public Service and Constitutional Studies.
The second amendment established the Paul Simon Public Policy
The fourth amendment adopted by the committee encouraged
the Secretary of Education to review the progress that States
have made in establishing procedures for increasing the
percentage of teachers that are suitably prepared and
qualified. This amendment is not intended to be a precondition
or requirement for Ed-Flex eligibility.
Two amendments were offered by Senator Reed. The first
amendment would have required the Secretary of Education to
issue a report about the status of current Ed-Flex States which
would have had to be submitted to Congress before additional
States would have become eligible for Ed-Flex participation.
The second amendment offered by Senator Reed would have
required a public notice and a 30 day comment period prior to
the request for, or granting of waivers. Both of these
amendments were defeated by a 10-8 vote.
Senator Dodd proposed two amendments. The first modified
amendment would have increased the authorization levels for the
Child Care Block Grant and for 21st Century Community Learning
Centers. The second amendment would have authorized a grant
program to combat truancy. Both amendments were defeated by a
Senator Dodd also offered an amendment on behalf of Senator
Harkin which would have provided authority to buy down interest
rates for school infrastructure projects. This amendmentwas
defeated by a voice vote.
Senator Murray offered and withdrew an amendment pertaining
to teacher preparation in technology.
Senator Murray offered and withdrew a second amendment to
hire 100,000 teachers nationally to reduce class size.
Senator Murray also offered and withdrew a third amendment
to include parental involvement in school activities as an
allowable use under the Family and Medical Leave Act.
Senator Kennedy offered an amendment to establish
educational opportunity zones to assist urban and rural local
educational agencies to raise students' academic achievements.
The amendment was defeated by a 10-8 vote.
Following the consideration of all amendments, S. 2213, the
Education Flexibility Partnership Demonstration Act, was voted
out favorably by the committee by a vote of 17 yeas and 1 nay.
IV. Explanation of the Bill and Committee Views
The expansion of Ed-Flex waiver authority will allow for
the waiver of statutory and regulatory requirements that hinder
implementation of State and local educational improvement
The current Ed-Flex Demonstration Program is limited to 12
States: Colorado, Illinois, Iowa, Kansas, Maryland,
Massachusetts, Michigan, New Mexico, Ohio, Oregon, Texas, and
Vermont. S. 2213 will expand the availability of the program to
any eligible State. In determining the eligibility
requirements, the Department of Education was consulted and
their views were incorporated into the legislation as passed by
the committee. The eligibility requirements mirror those
contained in the current law.
The eligibility requirements of Section 3, of S. 2213
reflect those that have been established under Section 1111(b)
of the Improving America's Schools Act. The present Title I
plan has strict accountability measures that focus on content
standards, performance measures, and assessments.
Under S. 2213, a State must either have an approved Title I
plan or have made substantial progress toward having an
approved plan. The determination of whether a State has made
``substantial progress'' will largely be up to the discretion
of the Secretary. It should be noted, that the committee
believes that a State will have to, at the very least, have the
content standards required under section 1111(b) of the
Improving America's Schools Act in order to be eligible for
participation in the Ed-Flex program.
S. 2213 only adds one new covered program to the current
list of elementary and secondary education programs included
under the Education Flexibility Partnership Demonstration Act.
The program is the Technology Challenge Fund formula grant
program. In addition, S. 2213 extends the authority for Ed-Flex
for 5 years.
Ed-Flex is not a block grant proposal. States cannot pool
funds from various Federal education programs and they must
ensure that the underlying purposes of the program in question
will continue to be met. Ed-Flex simply allows States some
relief from the burgeoning mass of bureaucratic Federal
regulations and requirements that impede local education reform
Ed-Flex is a good first step toward granting States and
localities increased flexibility in using Federal funds more
effectively and efficiently while demanding greater
accountability. Our States and localities are the engines of
change. The committee believes that the States should be
provided with the mechanisms to positively impact and change
our education system for the better--Ed-Flex is such a
V. Cost Estimate
Congressional Budget Office,
Washington, DC, September 4, 1998.
Hon. James M. Jeffords,
Chairman, Committee on Labor and Human Resources,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 2213, the Education
Flexibility Amendments of 1998.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Josh O'Harra.
June E. O'Neill, Director.
S. 2213.--Education Flexibility Amendments of 1998
Summary: Title I of S. 2213 would allow all states to
participate in the Education Flexibility Demonstration Program
(ED-FLEX) that grants participating educational agencies the
ability to waive many federal and state education regulations.
Currently, only 12 states participate in the demonstration
project. Titles II and III would endow the Oregon Institute of
Public Service and Constitutional Studies and establish the
Paul Simon Public Policy Institute.
CBO estimates that this bill would cost $6 million in 1999,
subject to appropriation of the necessary funds. Because S.
2213 would not affect direct spending or receipts, pay-as-you-
go procedures would not apply.
S. 2213 contains no private-sector or intergovernmental
mandates as defined in the Unfunded Mandates Reform Act (UMRA).
Any costs to state and local governments resulting from
enactment of the bill would be incurred voluntarily.
Estimated costs to the Federal Government: The estimated
budgetary impact of S. 2213 is shown in the following table.
[By fiscal year, in millions of dollars]
1999 2000 2001 2002 2003
Authorization under S. 2213:
Authorization levels........ 6 0 0 0 0
Estimated outlays........... 6 0 0 0 0
The costs of this legislation fall within budget function
500 (education, training, employment, and social services).
Basis of estimate: Title I of this bill would allow state
education agencies that participate in ED-FLEX demonstration
projects to waive federal and state regulations deemed
unnecessary for educational attainment. CBO's analysis,
supported by conversations with staff at the Department of
Education, suggests that expanding the eligibility for these
demonstration projects to educational agencies in all 50 states
would not create any new federal costs.
Title II would authorize a grant of $3 million to endow the
Oregon Institute of Public Service and Constitutional Studies.
Similarly, Title III of S. 2213 would authorize $3 million
dollars in 1999 to establish the Paul Simon Public Policy
Institute at Southern Illinois University. The legislation
would make the funds available for the Paul Simon Pubic Policy
Institute available only if the university matches every $3 of
federal funding with $1 of its own. For the purposes of this
estimate, CBO assumes that the univesity would be able to
provide the $1 million to match the $3 million in federal
funding available. CBO expects the universites to access these
funds promptly, thus resulting in $6 million in outlays in
Intergovernmental and private-sector impact: S. 2213
contians no intergovernmental or private-sector mandates as
defined in UMRA. The bill would allow officials in all 50
states to participate in the Education Flexibility
Demonstration Program. Twelve states now participate in this
program, which gives state officials the authority to
temporarily free individual school districts from certain
federal requirements. The bill would also authorize
appropriations of $6 million to endow public policy programs at
two public universites. Participation in these programs would
be voluntary as would any associated costs.
Estimate prepared by: Federal Cost: Josh O'Harra. Impact on
State, Local, and Tribal Governments: Marc Nicole. Impact on
the Private Sector: Nabeel Alsalam.
Estimate approved by: Paul N. Van de Water, Assistant
Director for Budget Analysis.
VI. Regulatory Impact Statement
The committee has determined that S. 2213 may result in
some additional paperwork, time, and costs to the Department of
Education which would be entrusted with implementation and
enforcement of the act. It is difficult to estimate the volume
of additional paperwork necessitated by the act, but the
committee does not believe it will be significant.
VII. Application of the Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1, the Congressional
Accountability Act (CAA), requires a description of the
application of this bill to the legislative branch. S. 2213
amends title 311(e) of the ``Goals 2000: Educate America Act.''
Therefore, S. 2213 does not amend any act that applies to the
VIII. Section-by-Section Analysis
Title I--Education Flexibility
SECTION 101. SHORT TITLE.
Section 101 specifies the short title of the bill,
``Education Flexibility Amendments of 1998.''
SECTION 102. FINDINGS.
Section 102 finds that states differ significantly with
regard to elementary and secondary education, and that the
administrative and funding mechanisms that help schools in one
State improve may not prove successful in other States. In
addition, some Federal regulations may impede local efforts to
improve education. Because State educational agencies are
closer to the local schools than the Federal government, they
are in the best position to align Federal, State, and local
initiatives. The SEA has flexibility to waive certain Federal
requirements and related State requirements in 12 States
currently, and an expansion of this authority to other states
will serve to improve their education systems.
SECTION 103. EXPANSION OF THE EDUCATION FLEXIBILITY PARTNERSHIP
Section 103 expands the Education Flexibility Partnership
Demonstration Act by amending section 311(e) of the ``Goals
2000: Educate America Act.''
Section 103(a)(1)(a) which previously limited Ed-Flex to 6
States (amended in 1996 to grant 6 more States waiver authority
bringing the grand total to 12) is amended to allow all 50
States the opportunity to become an Ed-Flex State. The bill
adds Subpart 2 of Part a of Title III, the Technology for
Education Act, as another covered program under Ed-Flex
authority in addition to the current list of programs for which
certain statutory or regulatory requirements may be waived (the
list is found in section 311(b) of ``Goals''). The bill also
references the requirements that cannot be waived in section
Section 103(a)(1)(B) strikes subparagraph (B) and
redesignates subparagraph (C) as subparagraph (B).
Section 103(a)(2)(a) amends subparagraph (a) to specify
the eligibility of States for participation in the Ed-Flex
program by replacing it with the following:
(1) a State must either have an approved Title I plan
(have approved content standards, performance measures,
and assessments in place as described in section
1111(b) of ESEA), or have made substantial progress
towards having an approved Title I plan.
(2) a State must hold local educational agencies
accountable for meeting the educational goals submitted
in their local applications for waivers.
Subparagraph (B), which requires States to waive their own
state regulations and requirements governing the implementation
of federal education programs, remains.
Section 103(b), The Authority to Issue Waivers, authorizes
the Secretary to carry-out the Ed-Flex program through 2003.
Section 103(c), Accountability, authorizes the Secretary
to review the progress of the State educational agency to
determine if it has instituted the proper accountability
Section 103(d), Transition Rules, grandfathers the current
Title II--Oregon Institute of Public Service and Constitutional Studies
Title II authorizes appropriation of funds to award a grant
to Portland State University in Portland, Oregon for the
creation and support of the Oregon Institute of Public Service
and Constitutional Studies at the Mark O. Hatfield School of
Government at Portland State University. The Institute shall
further the knowledge and understanding of students about
public service, the United States Government, and the
Constitution of the United States, and will increase awareness
of the importance of public service.
Title III--Paul Simon Public Policy Institute
Title III authorizes appropriation of funds to award a
grant to Southern Illinois University for the creation and
support of the Paul Simon Public Policy Institute. This
Institute will engage in research, analysis, debate, and policy
recommendations affecting world hunger, mass media, foreign
policy, education, and employment.
IX. ADDITIONAL VIEWS OF SENATOR DODD
Although I supported S. 2213, the Education Flexibility
Amendments of 1998, I continue to have strong concerns
regarding this legislation as well as the committee's
consideration of it.
S. 2213 was introduced by Senator Frist and Senator Wyden a
little over a month before the committee took up the bill. The
committee held no hearings on this important bill and little
notice was provided to the committee that it would be
considered. The accountability provisions of the bill were
substantially strengthened in the days immediately before the
markup; however, the committee had little opportunity to
examine the fundamentals of this important initiative.
The legislation extends the education flexibility
demonstration program to all 50 states. With this extension,
Governors would have broad new authority to restructure some of
the key federal elementary and secondary education programs,
such as Title I and the Safe and Drug Free Schools and
Communities Program. And yet, we have no evidence that the
current demonstration, limited to 12 states, has resulted in
any increase in student achievement. I supported the original
enactment of this program, despite my concerns about ceding
waiver authority for federal laws to the states. However, the
original demonstration was limited to six states, then 12, and
was to be carefully evaluated for its impact. It concerns me
that the committee has moved forward to expand this to all 50
states in the absence of this evaluation. This is particularly
troubling given that the committee will take up the
reauthorization of the Elementary and Secondary Education Act
As part of this critical reauthorization, we will conduct a
comprehensive review, including hearings, of the many federal
efforts to improve our nation's schools and the interaction
between these efforts and those of state and local governments.
The Education Flexibility Demonstration program should rightly
be considered in this context. It is my expectation that we
will continue to address the appropriate balance between
accountability and flexibility raised by S. 2213 as well as
other critical needs of our students and schools during the
During the committee's mark up, several strong initiatives
were introduced to support the pressing needs of our schools. I
offered two amendments--one to support local communities in
meeting the needs of students during non-school hours and a
second to help schools address the growing problem of truancy.
These two initiatives are desperately needed by parents and
schools and are deserving of the committee's attention. I
regret we have been unable to move such clear, simple and
Christopher J. Dodd.
ADDITIONAL VIEWS OF SENATOR REED
S. 2213, the Education Flexibility Amendments of 1998, will
expand the current twelve state education flexibility (Ed-Flex)
demonstration program to all fifty states. While I supported S.
2213--primarily because the substitute version contained
stronger accountability provisions than the original version of
the bill--I have serious concerns about this legislation.
The Labor Committee acted on this legislation without the
benefit of research on the effectiveness of Ed-Flex. Had the
formal hearing process been observed with respect to S. 2213,
the Committee would have had the data and perspective to
properly assess the expansion of the Ed-Flex demonstration
program. Moreover, there have only been two reports issued by
the Department of Education on Ed-Flex--an October 1997 waivers
report and an April 1998 Goals 2000 report--which provide very
limited information on how a few of the twelve Ed-Flex states
are administering their waiver authority.
Indeed, these preliminary reports fail to provide any data
on student achievement gains in these states, let alone any
information that demonstrates an increase in student
achievement due to the waiver authority provided by the Ed-Flex
Student achievement gains should be the basis for Ed-Flex
expansion or any education policy. Until we have student
achievement data and fully understand the impact of Ed-Flex, it
is unwise to expand this authority--intended to be a limited
demonstration program--to the fifty states. For this reason, I
offered an amendment during the markup to require the Secretary
of Education to report on data collected on student achievement
gains in the twelve current Ed-Flex demonstration states before
the program could be expanded. Although this amendment failed,
I will continue to pursue this matter as S. 2213 moves to the
floor, and next year during the reauthorization of the
Elementary and Secondary Education Act--the proper vehicle for
the consideration of Ed-Flex expansion.
During the markup, I offered another amendment to bolster
the accountability provisions included in the bill. My
amendment would have required an open process to inform the
public of the waivers sought by a local educational agency
(LEA) and offered an opportunity for public comment on the
Members of the public, including individuals directly
impacted by waiver requests, such as parents, students, and
teachers, should be able to easily learn of such requests when
reading their local newspaper just as they learn about other
local issues. These individuals should also be provided with a
description of how the proposed waiver will improve student
performance--the intended goal of education flexibility. And,
lastly, to ensure that all voices are heard, these individuals
should be able to provide comments to the LEA and the state
educational agency (SEA) before the issuance of the waiver.
This is a common sense provision, which should be incorporated
into S. 2213 prior to floor consideration.
Lastly, I am disappointed that the Labor Committee did not
take the opportunity to act on amendments offered by my
Democratic colleagues to reduce class size, modernize our
public schools, and provide students with after school care--
reforms that are backed by research to strengthen our schools
and boost the achievement of students.
I hope that these concerns will be resolved before S. 2213
is taken to the floor. I look forward to working with the
sponsors of S. 2213 on this matter and with the Committee to
pass proven and needed education reforms.
X. Changes in Existing Law
In compliance with rule XXVI paragraph 12 of the Standing
Rules of the Senate, the following provides a print of the
statute or the part or section thereof to be amended or
replaced (existing law proposed to be omitted is enclosed in
black brackets, new matter is printed in italic, existing law
in which no change is proposed is shown in roman):
GOALS 2000: EDUCATE AMERICA ACT
* * * * * * *
TITLE III--STATE AND LOCAL EDUCATION SYSTEMIC IMPROVEMENT
SEC. 301. [20 U.S.C. 5881] FINDINGS.
The Congress finds that--
* * * * * * *
SEC. 311. [20 U.S.C. 5891] WAIVERS OF STATUTORY AND REGULATORY
(a) Waiver Authority.--
(1) In general.--* * *
* * * * * * *
(e) Flexibility Demonstration.--
(1) Short title.--The subsection may be cited as the
``Education Flexibility Partnership Demonstration
(2) Program authorized.--
[(A) In general.--The Secretary may carry out
an education flexibility demonstration program
under which the Secretary authorizes not more
than 6 State educational agencies serving
eligible States to waive statutory or
regulatory requirements applicable to 1 or more
programs or Acts described in subsection (b),
or other than requirements described in
subsection (c), for the State educational
agency or any local educational agency or
school within the State.]
(A) In general.--The Secretary may carry out
an education flexibility demonstration program
under which the Secretary authorizes a State
educational agency that serves an eligible
State to waive statutory or regulatory
requirements applicable to 1 or more programs
or Acts described in subsection (b) or 1 or
more programs described in subpart 2 of part A
of title III of the Elementary and Secondary
Education Act of 1965 (except section 3136 of
such Act), other than requirements described in
subsection (c) of this Act and section 14401(c)
of the Elementary and Secondary Education Act
of 1965, for the State educational agency or
any local educational agency or school within
[(B) Award rule.--In carrying out
subparagraph (A), the Secretary shall select
for participation in the demonstration program
described in subparagraph (A) three State
educational agencies serving eligible States
that each have a population of 3,500,000 or
greater and three State educational agencies
serving eligible States that each have a
population of less than 3,500,000 determined in
accordance with the most recent decennial
census of the population performed by the
Bureau of the Census.]
[(C)] (B) Designation.--Each eligible State
participating in the demonstration program
described in subparagraph (A) shall be known as
an ``Ed-Flex Partnership State''.
(3) Eligible state.--For the purpose of this
subsection the term ``eligible State'' means a State
[(A) has developed a State improvement plan
under section 306 that is approved by the
(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, including the requirements of
that section relating to disaggregation
of data, and for which local
educational agencies in the State are
producing the individual school
performance profiles required by
section 1116(a) of such Act; or
(II) made substantial progress, as
determined by the Secretary, toward
developing and implementing the
standards and assessments, and toward
having local educational agencies in
the State produce the profiles,
described in subclause (I); and
(ii) holds local educational agencies and
schools accountable for meeting the educational
goals described in the local applications
submitted under paragraph (5), and for taking
corrective actions, consistent with section
1116 of the Elementary and Secondary Education
Act of 1965, for the local educational agencies
that do not meet the goals; and
* * * * * * *
(8) Authority to issue waivers.--Notwithstanding any
other provision of law, the Secretary is authorized to
carry out the education flexibility demonstration
program under this subsection for each of the fiscal
years 1999 through 2003.
(f) Accountability.--In deciding whether to extend a
request for a waiver under subsection (a)(1), or a State
educational agency's authority to issue waivers under
subsection (e), the Secretary shall review the progress of the
State educational agency, local educational agency, or school
affected by such waiver or authority to determine if such
agency or school has made progress toward achieving the desired
results described in the application submitted pursuant to
subsection (a)(2)(B)(iii) or (e)(5)(A)(ii). In the case of
deciding whether to extend a State educational agency's
authority to issue waivers under subsection (e), the Secretary
also shall review the progress of the State educational agency
to determine if such agency--
(1) has established procedures for increasing the
percentage of elementary school and secondary school
teachers in the State who have demonstrated, by
traditional or alternative routes, the subject matter
knowledge and pedagogical skill necessary to provide
effective instruction in the content area or areas in
which the teachers provide instruction; and
(2) has decreased the percentage of elementary school
and secondary school teachers teaching in high poverty
elementary schools and secondary schools who do not
demonstrate such knowledge and skills.
* * * * * * *