This is an archived article that was published on in 2014, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

There seems to be some confusion about an action by the Utah State Board of Education on Aug. 8. Although the board approved applying for a waiver from some parts of the federal law known as the No Child Left Behind Act, this was not the same waiver that the board had approved in 2012.

This year, the board approved several alternative assurances as part of its application to the U.S. Department of Education. For example, instead of assuring the department that the Common Core State Standards will be used, the state board assured that its standards are college and career-ready, and that Utah may change its standards at any time. Assurances about accountability testing and educator evaluations were likewise changed to state what Utah is doing and currently intends to do, but without any commitment to refrain from making changes in the future.

These changes are best stated in the following paragraph that the board explicitly adopted as a clarification to be included in the new waiver:

"The State Board reserves its absolute and exclusive right to modify, without negative effects with respect to its Waiver, its Utah Core Standards, SAGE testing, UCAS report card, and PEER teacher and principal evaluations without approval of the U.S. Department of Education. The State Board further reserves its right to withdraw from the Waiver if the State Board finds that such Waiver violates Utah Code Ann. 53A-1-402.6(7)."

In addition to the confusion over what the board did, there appears to be misunderstanding about what may happen going forward. We are not in a situation where the U.S. Department of Education can issue Utah a warning, as they did with other states. The old waiver will expire, and the department will act upon the newly amended waiver application. Therefore, the likely outcomes for Utah will be (1) to receive a waiver with much less policy intrusion from the federal sources, (2) to receive notice of a federal rejection of our amended waiver, or (3) to begin negotiations on how the amended waiver might be further modified to suit both the U.S. Department of Education and the state board.

Under the first scenario, Utah would get a waiver that provides an exemption from the worst parts of No Child Left Behind, but without the policy commitments of the old waiver.

The second scenario would indicate that the policy commitments in the old waiver really did matter, and there would be an extremely compelling case that the federal administration is reaching beyond the boundaries of the Tenth Amendment of the U.S. Constitution as well as violating other federal statutes, including No Child Left Behind.

Under the third scenario, the state board would negotiate for what is best for Utah and could help frame the national discussion about the efforts of a federal agency to set national public education policies.

The public generally and especially state legislators should pay attention to these possible outcomes. If Utah ends up in negotiations with the U.S. Department of Education over its amended waiver, the Legislature and state board would need to decide what to do in terms of policy and funding. Such collaboration would ensure that Utah would have a strong negotiating position for the benefit of Utah schools.

Jennifer Johnson represents District 8 on the State Board of Education, and Jefferson Moss represents District 11. Their view is not necessarily the opinion of the Utah State Board of Education.