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A state that has been awarded a No Child Left Behind (NCLB) flexibility waiver and that now
decides to rescind its previous adoption of the Common Core State Standards has three options
with respect to the waiver: 1) seek to retain the waiver by changing its commitment regarding
Common Core standards (option A on the waiver application) to another set of standards
approved by the states institutions of higher education (option B on the application); 2) apply
for a waiver through NCLBs statutory (non-flexibility) waiver provision; and 3) relinquish the
waiver. These options are discussed below.
Retain the Waiver by Changing From Option A to Option B
The NCLB waiver application issued by the U.S. Department of Education (USED) requires an
applicant state to choose one of two options regarding K-12 curriculum standards:
Option A: The State has adopted college- and career-ready standards in at least
reading/language arts and mathematics that are common to a significant number of
States, consistent with part (1) of the definition of college- and career-ready standards.
[As a practical matter, this means adopting Common Core.]

Option B: The State has adopted college- and career-ready standards in at least
reading/language arts and mathematics that have been approved and certified by a
State network of institutions of higher education (IHEs), consistent with part (2) of the
definition of college- and career-ready standards. [Part (2) requires the IHEs to certify
that students who meet the standards will not need remedial coursework at the
postsecondary level. This must be certified by state four-year IHEs that educate at least
half of Oklahoma students.]
When applying for its NCLB waiver, Oklahoma chose Option A.
1
However, if Oklahoma decides
to exit Common Core and return to its previous standards, it could simply submit those
standards to its IHEs for their approval and then amend its application (or its application for a
waiver extension) to reflect its reliance on Option B rather than Option A. Since even the
Thomas B. Fordham Institute, a Common Core proponent, admits that Oklahomas previous

1
Oklahoma State Department of Education, ESEA Flexibility Request (Nov. 11, 2011), available at
http://www2.ed.gov/policy/eseaflex/approved-requests/ok.pdf.



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standards were essentially as good as, and in some ways superior to, Common Core,
2
there
should be little problem in obtaining the necessary approval from the IHEs.
Other states (Alaska
3
and Virginia
4
) that have not adopted Common Core have obtained NCLB
waivers via Option B. This is further evidence that Oklahoma, which had standards superior to
these states, could retain its waiver through the Option B process.
On September 30, 2013, USED awarded Texas a NCLB waiver.
5
Under Governor Perry, Texas
refused participation in the Common Core Standards program from the beginning. Its math and
English standards embody traditional curricula education philosophies and are considered to be
among the best in the nation perhaps even better than the old Massachusetts standards.
Given that it has awarded Texas a NCLB waiver, it would be very difficult, if not politically
impossible, for USED to argue that OK must retain the Common Core.
Nonetheless, it is worthwhile to consider the consequences if OK loses its waiver.
6
Several
former USED officials have explained how this would happen. Under section 1004 of NCLB,
7
1%
of Title I funding is set aside for administrative functions of the state. If USED argues that a state
violated its waiver commitment and refused to allow an amended waiver based on other IHE-
approved standards, USED probably would threaten to withdraw the 1% administrative set-
aside not the entire Title I funding amount. Taking Title I (intended to help underprivileged,
underperforming children) money from the schools themselves has always been seen as
politically non-viable, since USED would be harming the children it is supposedly defending. In
fact, the former USED officials who were consulted said that trying to withdraw anything more
than the 1% set-aside would be unprecedented. Moreover, these officials said, USED would
probably take, at most, 5%-10% of the set-aside; otherwise, USED would worry that the state
would be left without capacity to monitor USED programs or respond to USED requests. This
means that since Oklahoma is scheduled to receive roughly $155 million in Title I funding in
2014,
8
it might expect to lose at most 10% of $1.55 million, or $155,000.

2
http://edexcellencemedia.net/publications/2010/201007_state_education_standards_common_standards/Oklahoma.
pdf.

3
Alaska Department of Education, ESEA Flexibility Request for Window 3, p. 28 (June 7, 2012), available at
http://www2.ed.gov/policy/eseaflex/ak.pdf; see also http://www2.ed.gov/policy/eseaflex/amo-letters/ak-amo-
letter.pdf.
4
Virginia Department of Education, ESEA Flexibility Request, p. 15 (Feb. 23, 2012), available at
http://www2.ed.gov/policy/eseaflex/va.pdfp;http://www2.ed.gov/policy/eseaflex/approved-requests/va.pdf; see also
http://www.ed.gov/esea/flexibility/requests. In addition, because Minnesota adopted Common Core in English
language arts but not in mathematics, that state received an NCLB waiver while relying on both Option A and
Option B. See Minnesota Department of Education, ESEA Flexibility Request, p. 16 (Nov. 14, 2011), available at
http://www2.ed.gov/policy/eseaflex/mn.pdf; see also http://www2.ed.gov/policy/eseaflex/secretary-
letters/mn.html.
5
http://www2.ed.gov/policy/eseaflex/approved-requests/txrequestltr092613.pdf;
http://www2.ed.gov/policy/eseaflex/secretary-letters/txapprovalltr.html.
6
20 U.S.C. 1234c (general penalties USED may apply to states that fail to comply with terms of education grant).
7
20 U.S.C. 6304.
8
https://www2.ed.gov/about/overview/budget/statetables/14stbyprogram.pdf



Page 3 of 5

These officials emphasized that the entire issue of compliance is more political than statutory. If
the state makes a good case that it wants to implement superior standards, USED will find it
politically difficult to penalize the state for that especially when USED has been insisting for
two years that Common Core is not a federal mandate. Realistically, Oklahoma should be able
to modify its waiver commitments in this manner without penalty.
Apply for a Statutory Waiver
Forgotten amid the publicity surrounding USEDs fabricated NCLB waiver program is the fact
that NCLB itself contains a provision allowing states to apply for waivers.
9
Under this provision,
a state may seek a waiver of any statutory or regulatory requirement of this chapter by
describing how a waiver will increase the quality of instruction and improve the academic
achievement of students. Given that Oklahomas previous standards were at least as good as
and in some ways superior to Common Core, it should certainly be possible for the state to
make such a showing.
In this regard, many congressmen, including former U.S. Secretary Lamar Alexander and House
Education Committee Chairman John Kline, have criticized the new waiver program as an
executive rewrite of the statute and thus a violation of separation of powers. As Senator Marco
Rubio warned, This initiative is an overstep of authority that undermines existing law, and
violates the constitutional separation of powers. The responsibility for legislating lies with
Congress, and forcing policy reforms through NCLB waivers violates this most basic of
constitutional structures.
10

Relinquish the Waiver
In the unlikely event Oklahoma decides it does not want a waiver, loses it, or simply decides not
to renew it, the consequences would be less significant than popularly assumed.
The most important point to remember is that losing the waiver would not reduce the amount
of funding Oklahoma receives. The waiver merely allows a bit more flexibility in spending Title I
funds. Under NCLB, failing schools (schools in need of improvement) must allocate 20% of
their Title I funds to Supplemental Education Services (SES), typically after-hours tutoring. The
waiver does not change the amount of funding those schools receive but simply allows them to
redirect 20% of it to other Title I uses.
11
The waiver is thus about flexibility (USED even refers to
the waivers as flexibility waivers), not money.

9
20 U.S.C. 7861.
10
NCLB Waivers Come With Strings Attached, Education Reporter (October 2011), available at
http://www.eagleforum.org/educate/2011/oct11/NCLB.html.
11
ESEA Flexibility Request for Window 3, U.S. Department of Education (updated June 7, 2012), pp. 10-11,
available at
https://www.google.com/search?q=ESEA+Flexibility+U.S.+Department+of+Education+June+7%2C+2012&oq=ESEA
+Flexibility+U.S.+Department+of+Education+June+7%2C+2012&aqs=chrome..69i57.22239j0j8&sourceid=chrome&
espv=210&es_sm=93&ie=UTF-8.



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Even this limited flexibility, however, does not involve substantial amounts of funding. In the
2011-2012 school year, Oklahoma public schools had 666,120 K-12 students
12
and received
approximately $170 million in Title I funding.
13
Twenty percent of that funding divided by the
number of Oklahoma students equals slightly over $51 per student per year. And the flexibility
would constitute a new benefit not to all schools, most of which already have it, but only to the
schools that have been designated as needing improvement.
14
Thus, the primary economic
benefit of the waiver is that it will allow a limited number of schools to redirect a small amount
of funding to other federally dictated categories of expenditure.
The waiver also allows schools to escape the consequences of failing to make Adequate Yearly
Progress (AYP) under NCLB. But according to the former USED officials, it would be
extraordinarily unpalatable, politically, for USED to begin penalizing thousands of schools across
the country for failing to achieve an impossible objective. Unwillingness to do that was the
reason USED came up with the waiver scheme in the first place. The political calculus in the AYP
situation favors Oklahoma.
But wont the waiver release the state from other onerous provisions of NCLB?
As some states are discovering, not to the extent they originally thought and some onerous
provisions are merely being replaced by others. USEDs ESEA Flexibility guidelines
15
outline
pages of detailed mandates that states must fulfill in order to qualify for the waiver, relating to
curriculum standards and assessments; differentiated recognition, accountability, and support
(requiring [f]air, flexible, and focused accountability and support systems to improve the
academic achievement of all students, close persistent achievement gaps, and improve
equity); effective instruction and leadership (requiring new teacher-evaluation systems that
meet myriad federal requirements); and reduced duplication and unnecessary burden. It is
clear that USED, unencumbered by actual legislation, is exercising little restraint in imposing its
policy preferences through the waiver program it created out of whole cloth.
As predicted by the Heritage Foundation
16
, among others, some states are already struggling to
adapt their education policies to the USED waiver mandates. In Washington State, for example,
the legislature passed a bill to revamp its teacher-evaluation system to more closely track USED
preferences. In July of last year, however, USED granted only a one-year waiver and warned

12
http://nces.ed.gov/pubs2013/2013441.pdf, p. 7.
13
Digest of Education Statistics, 2011 Tables and Figures, Table 390, National Center for Education Statistics,
available at http://nces.ed.gov/programs/digest/d11/tables/dt11_390.asp.
14
In the most recent report on the percentage of schools identified as not making AYP (2011), 30% of Oklahoma
schools fell into that category. See State Education Reforms, Publications & Products, Table 1.2, National Center
for Education Statistics, available at http://nces.ed.gov/programs/statereform/tab1_2.asp.
15
ESEA Flexibility, U.S. Department of Education, pp. 4-7 (updated June 7, 2012), available at
https://www.google.com/search?q=ESEA+Flexibility+U.S.+Department+of+Education+June+7%2C+2012&oq=ESEA
+Flexibility+U.S.+Department+of+Education+June+7%2C+2012&aqs=chrome..69i57.22239j0j8&sourceid=chrome&
espv=210&es_sm=93&ie=UTF-8.
16
Lindsey Burke, No Child Left Behind Waivers Surrender Educational Control to Washington (Feb. 9, 2012),
available at http://blog.heritage.org/2012/02/09/no-child-left-behind-waivers-surrender-education-control-to-
washington/.



Page 5 of 5

that Washington will have to rewrite its new evaluation program if the state hopes to have its
waiver renewed (the Washington statute provides that student-learning data, i.e., test scores
and other measures, account for 20% of a teachers evaluation; USED requires a greater
percentage, perhaps as much as 50%).
17
Legislators who believe that their sovereign state
should retain the authority to evaluate its own teachers (or control its own standards, or
perform any other function now dictated by USED through the waiver) must adjust to a
subordinate role.
Some states have decided that the waiver simply isnt worth it. Vermont, for example, grew
weary of complying with all the federal requirements just to have its waiver application
considered, and decided it would be easier simply to live under NCLB. There was no room to
do much of anything under the waiver, said the State Board of Education chairman. All of the
requirements of No Child Left Behind remained in place. In my opinion it is not accurate to call
it a waiver.
18
A Vermont Department of Education spokeswoman agreed: As the Vermont
Department of Education has continued to negotiate for the flexibility that was promised since
we started in August, it has become clear that the U.S. Education Department is interested in
simply replacing one punitive, prescriptive model of accountability with another.
In sum, the NCLB waiver has little effect on education funding in Oklahoma and will substitute
new federal mandates for those it waives. Thus, even if Oklahoma were to lose the waiver,
negative consequences would be less significant than imagined.
Conclusion
Because Oklahoma has two avenues of retaining/obtaining an NCLB waiver even if it withdraws
from Common Core, it is unlikely that the state would have to revert to operation under NCLB.
Even if it did, however, the applicable NCLB mandates would not be substantially more
oppressive than the waiver mandates. Any downside would be a small price to pay for
reasserting state autonomy and control over its K-12 standards.


17
Liv Finne, Federal Government Tells Washington State to Rewrite Its Teacher Evaluation Law (July 21, 2012),
available at http://www.washingtonpolicy.org/blog/post/federal-government-tells-washington-state-rewrite-its-
teacher-evaluation-law.
18
Vermont Drops Waiver Request for No Child, Bennington Banner (May 31, 2012), available at
http://www.districtadministration.com/news/vermont-drops-waiver-request-no-child.