Section 9401 of the Elementary and Secondary Education Act (ESEA) provides the Secretary of Education (hereinafter referred to as the Secretary) with broad waiver authority with respect to programs authorized under the act. While this waiver authority is limited in some respects, such as its applicability to fiscal accountability and civil rights requirements, at the request of specified entities, the Secretary may choose to grant a waiver of various ESEA requirements, including those related to academic accountability. The decision to grant the waiver is left to the Secretary's discretion. This broad waiver authority was initially included in the ESEA through the Improving America's Schools Act ( P.L. 103-382 ). The authority was retained through enactment of the No Child Left Behind Act of 2001 (NCLB; P.L. 107-110 ), the most recent amendments to the ESEA. The Secretary has used the authority provided under Section 9401 to grant numerous waivers over time, including waivers of accountability and general administrative requirements. For example, since the enactment of NCLB, the Secretary has granted waivers of various ESEA requirements in response to the Gulf Coast hurricanes of 2005 and to address issues raised by the American Recovery and Reinvestment Act (ARRA; P.L. 111-5 ). On June 13, 2011, the Secretary announced that he might begin to use the authority provided under Section 9401 to issue broad sweeping waivers if Congress fails to reauthorize the ESEA. Subsequently, on August 8, 2011, it was announced at a White House press briefing that President Obama had directed the Secretary to "move forward with plans to provide flexibility to states." On September 23, 2011, President Obama and the Secretary of Education formally announced the availability of an ESEA flexibility package for states that included 11 waivers of ESEA requirements, as well as four principles for "improving student academic achievement and increasing the quality of instruction" that must be met to receive the waivers. With the exception of one optional waiver, state educational agencies (SEAs) applying for the ESEA flexibility must apply for all 10 waivers and must agree to implement all four principles related to receiving the waivers. The waivers would apply to school years 2011-2012, 2012-2013, and 2013-2014. States would have the option to apply for a one-year waiver extension for the 2014-2015 school year. The Administration has argued that the ESEA flexibility package is needed because Congress has failed to reauthorize the ESEA. The ESEA was authorized through FY2008; however, ESEA programs continue to receive annual appropriations. The Administration has suggested that this lack of congressional action is particularly an issue as there are requirements contained in the ESEA, including academic accountability requirements, that have become problematic for state educational agencies, local educational agencies (LEAs), and schools to implement, and various states have sought waivers of these provisions. A commonly cited problem is that under the performance-based accountability provisions enacted in NCLB, all students are expected to perform at a proficient level on state administered reading/language arts and mathematics assessments by the end of the 2013-2014 school year. As this deadline approaches, and performance expectations under the law increase, an increasing share of the nation's schools are failing to meet adequate yearly progress (AYP)—the measure that determines whether a school is or is not meeting the academic accountability requirements. There is broad concern that states and LEAs may become increasingly taxed with regard to their ability to undertake required activities to help schools that fail to make AYP. This report begins with a general discussion of the ESEA flexibility package and current congressional efforts to reauthorize the ESEA. Also included is an update on state applications for the ESEA flexibility package. Following these brief discussions, the report examines the waiver authority provided to the Secretary under Section 9401, beginning with a brief history of the provisions, followed by a discussion of how waiver requests are granted and limitations on the Secretary's waiver authority. The next section of the report provides an examination of how the Secretary has used waiver authority in the past and a legal analysis of the scope of the Secretary's waiver authority and the Secretary's authority to grant a waiver in exchange for another action. The next part of the report focuses on describing and analyzing the waivers and related principles that collectively comprise the Administration's ESEA flexibility package. Taken together, the waivers and accompanying principles included in the ESEA flexibility package being offered to SEAs could be viewed as a fundamental redesign of key elements of the ESEA. Through the use of secretarial authority to waive various ESEA provisions, the ESEA flexibility package being offered by ED would alter the existing accountability requirements under Title I-A in such a way that they would have little resemblance to the accountability requirements included in statute. For example, requisite adoption of college- and career-ready standards that are either common to a "significant" number of states or that have been approved by a state network of institutions of higher education (IHEs) is not in current law. Rather, this is a new condition that would be placed on SEAs by the Administration. Under current law, states are required to implement accountability systems that establish content and performance standards in reading/language arts and mathematics and include aligned assessments that are administered annually in grades 3-8 and once in grades 10-12. States are also required to have content and performance standards and aligned assessments in science that are administered once in grades 3-5, 6-9, and 10-12. In meeting these requirements, states have the latitude to independently select their own content and performance standards and assessments. There are no requirements that the standards be "college- and career-ready" standards or be approved by a state network of IHEs. The ESEA flexibility package would also eliminate the requirement that all schools receiving Title I-A funds that fail to make AYP for at least two consecutive years be required to implement a series of increasingly severe outcome accountability requirements. Rather, prescribed interventions would be limited to the lowest performing 5% of schools (priority schools) and some type of intervention would be required in the next lowest performing 10% of schools (focus schools). The outcome accountability requirements that currently apply to all Title I-A schools that fail to meet AYP would be replaced by more prescriptive requirements for priority schools and a requirement for non-specified interventions to be implemented in focus schools. The mechanisms used to identify schools in need of intervention would no longer be based solely on whether the school made AYP. Rather, other measures could be taken into account in making these decisions. Finally, the identification of schools as priority schools would be based on the performance of all students in the school or student graduation rates rather than the performance of individual subgroups. Under current law, the performance of all students, the performance of subgroups of students, and graduation rates are taken into account in determining AYP. The ESEA flexibility package would also substantially alter accountability requirements applicable to educators. While current law focuses on having highly qualified teachers, the ESEA flexibility package would alter existing teacher requirements to focus on teacher (and school leader) effectiveness, determined, in part, based on student achievement. To date, no provisions in the ESEA address how teachers and school leaders should be evaluated. The 112 th Congress continues to work on ESEA reauthorization. The Senate Health, Education, Labor, and Pensions (HELP) Committee has ordered reported an ESEA reauthorization bill that would incorporate some of the changes included in the ESEA flexibility package being offered by the Administration. The chairman of the House Education and Workforce Committee has released two draft ESEA reauthorization bills that would collectively provide for a comprehensive reauthorization of the ESEA. It is difficult to gauge at this stage in the process whether the 112 th Congress will pass a bill to reauthorize the ESEA, and whether Congress would include provisions similar to those of the ESEA flexibility package in a final bill. Most states have either applied for the ESEA flexibility package or have indicated an intention to do so. If those packages are approved by ED, they may be in effect in many states by the end of the current school year if ESEA reauthorization does not occur prior to that time. If the ESEA flexibility package is implemented by numerous states prior to reauthorization, it may complicate an eventual reauthorization, as the ESEA flexibility package may become the de facto ESEA law under which many states are operating. If Congress does not take this into account in its reauthorization process, states and LEAs may have to retool their accountability systems to comply with a new round of requirements from the federal government. Alternatively, states that have received the ESEA flexibility package could be permitted to continue to operate under waivers and principles similar to those included in the ESEA flexibility package, while other states could be required to comply with new ESEA requirements, thus creating two different systems of accountability under which states would be operating. Following the announcement of the ESEA flexibility package, 39 states, the District of Columbia, and Puerto Rico indicated that they intended to apply for it. Eleven states applied for the ESEA flexibility package by the first deadline of November 14, 2011. On February 26, 2012, 26 additional states and the District of Columbia submitted applications for the flexibility package. The next deadline for the submission of applications is September 6, 2012. On February 9, 2012, the Administration announced that it was granting flexibility to 10 of the 11 states that applied in the first round for the ESEA flexibility package. These states include Colorado, Florida, Georgia, Indiana, Kentucky, Massachusetts, Minnesota, New Jersey, Oklahoma, and Tennessee. New Mexico was not approved to receive the ESEA flexibility package. Of these states, Florida, Georgia, and Oklahoma received conditional approval of their requests for flexibility. Each of these states is required to make additional amendments to their requests based on a prescribed timeline in order to receive the ESEA flexibility package through the 2013-2014 school year.