Correction: A previous version of this article included Oklahoma state chief Ryan Walters among the signers of a letter asking for federal funding flexibility. He was not part of that effort.
With a wholesale revamping of the U.S. Department of Education underway, some state leaders are now gearing up to test just how much leeway the agency is willing to grant through its waiver authority to change key rules about how federal funds are distributed and schools held accountable for progress.
State education chiefs are already asking the agency to give them more latitude over federal requirements for accountability outlined in the Every Student Succeeds Act, legislation that has guided testing and data collection for nearly a decade.
And though the department can’t change through a waiver how it allocates funds to school districts, experts say, state leaders are beginning to test those limits. And with a diminished federal Education Department, policy watchers anticipate a process with less scrutiny than usual.
Ryan Walters, Oklahoma’s Republican elected superintendent of public instruction, is in talks with the department about a waiver that could allow federal funding provided under the Individuals with Disabilities Education Act—the main law governing services for students in special education—to be used in education savings accounts that would follow students to the school of their parents’ choice, ideally including private schools or independent tutors.
“What I want is families to be empowered to utilize it as they wish,” Walters said.
He is also interested in pursuing leeway from ESSA’s assessment requirements, which call for students to take annual tests in reading and math in grades 3-8 and once in high school, or rethink the way his state’s ESSA plan handles graduation. He’s less certain, however, about what shape that waiver ask might take.
“We’re exploring how the tests can look different,” Walters said.
In Iowa, the state education department earlier this month requested that the Education Department distribute its school district formula and competitive grants as a lump sum, rather than through various, separate programs with different requirements that result “in fragmented local investments,” a spokesperson for the department said in an email. (It is unclear how that request jibes with language already in the law allowing for broad transferability between different funding streams.)
“Over time, superintendents and education leaders have shared difficulty implementing differing programmatic and fiscal requirements for each ESEA program,” the spokesperson said.
The single fund would be managed by the state’s education department under Director McKenzie Snow.
Snow was among a dozen Republican state chiefs who made it clear earlier this winter they’re looking for broader authority over how their states can spend federal dollars.
“By prioritizing state leadership and flexibility, the Trump administration can unleash the full potential of America’s schools and students,” the chiefs said in a letter to McMahon, sent Jan. 28. The letter, first reported by The 74, asked McMahon and her team to “please defer to state and local decision-making as much as possible in your actions.”
Limitations within law guiding waivers
Through ESSA, the 2015 update of the Elementary and Secondary Education Act, states must require testing and provide data on results; submit plans on accountability goals for testing proficiency, graduation rates, and English-language proficiency; and identify and support low-performing schools.
But the secretary of education can grant states waivers for virtually all of these provisions. That’s how, for example, states were relieved of their standardized testing requirements during the COVID-19 pandemic.
There are legal limits to just how much the Education Department can relax requirements spelled out in ESSA, IDEA, and other federal K-12 laws. And states seeking waivers must make the case for their asks and explain how they’ll continue addressing the law’s requirements with the flexibility, as well as reach out to educators in their state for comment.
Those processes are “not very onerous, they’re not very difficult,” said David Cleary, who served as a top staffer to Republicans on the Senate and House education committees for more than two decades, including during the development of ESSA. As long as states stick to those directives and their request is within the scope of the department’s waiver authority, “I think McMahon will approve it pretty quickly,” he added.
McMahon has signaled she’s open to states’ proposals. Those proposals would come after the Trump administration has already taken significant steps toward deep-sixing the department, including halving its ranks of career staffers and enacting an executive order directing McMahon to prepare to dismantle the agency.
The reduction to the department’s ranks means McMahon and her team likely won’t have the manpower to scrutinize states’ requests for possible pitfalls.
“She’s not going to sit there with a microscope and try to determine the impact of every change, and what she thinks could happen,” Cleary said.
The department’s authority to waive provisions of IDEA is much more limited. In a financial emergency, the department can allow states wiggle room from two provisions of the law aimed at ensuring that federal funds aren’t used to replace local dollars—maintenance of effort and supplement-not-supplant.
Oklahoma’s request to allow federal special education funds to be used in ESAs—a suggestion that also appears in Project 2025, the conservative policy proposal—might be a bridge too far.
“I don’t think the Department of Education would approve a waiver that tries to turn IDEA into vouchers because it would violate the individualized right to a free, appropriate public education and be immediately blocked by the courts,” Cleary said. “Students with disabilities do have protections under the law and by Supreme Court rulings that can’t be overcome by a waiver.”
Using Title I grants for disadvantaged students for ESAs is also a no-go, Cleary said. “Unfortunately, I don’t see even a creative reading that allows [ESSA] as written to be used to support a school voucher program.”
One granted waiver could prompt others, experts say
Any request granted to one state could set off a ripple effect, said Anne Hyslop, director of policy development at All4Ed, a nonprofit that advocates for students of color and students from low-income families.
“When one state asks for a waiver and it’s granted, it kind of sets a template for other states to try,” said Hyslop, who served in the Education Department during the Obama administration.
Advocates for vulnerable students worry that the department may OK flexibility that makes it harder to ensure states and district provide schools with the resources needed to help those students succeed.
“We’re worried that the ability for us to hold states accountable for serving all students in particular populations that have been traditionally underserved by the system would be undermined, and we wouldn’t have that visibility of how that is being done,” said Nicholas Munyan-Penney, assistant director of P-12 policy for EdTrust, a nonprofit advocating for marginalized students.
Though Republican-led states appear most eager to push for waivers, Hyslop thinks it could ultimately be a “purple mix.”
For instance, more than two dozen states are working with the Learning Policy Institute, a research and policy organization, on crafting assessments that might rely on students to complete performance tasks, said Linda Darling-Hammond, its CEO and founder.
But it’s been historically difficult for states to get federal signoff to use those types of tests to meet ESSA’s accountability requirements, she said.
She cited the Advanced Placement Computer Science test, which requires students to work in teams to create an app, as an example of the kind of assessment to which many states would like to transition.
“I think many states would welcome flexibility” to try different kinds of tests, or to provide shorter tests using a technique called Matrix sampling that presents different items to different students to get broad information about learning outcomes, she said.
But she’s not sure the drastically diminished department will have the capacity to think through waivers that preserve a focus on regularly getting a picture of student performance that can be compared across schools and districts.
“I think that it’s going to be very dysfunctional,” said Darling-Hammond, who also serves as president of the California State Board of Education. “One of the things about waivers is that then somebody has to consider them,” and the department doesn’t have the staff to do that now.
What’s more, states may already have more leeway than they think under ESSA, said Lindsay Fryer, the president of Lodestone DC, a consulting organization.
“There’s a lot of flexibility in the law that states may not realize they have,” said Fryer, who served as a top aide to Republicans on the House and Senate education committees, including when ESSA was crafted. “If states want more, they should pursue waivers. At the same time, if Secretary McMahon is serious about getting back to the basics on reading, writing, and math—and I believe she is—there should be accountability for transparency around student outcomes.”
