So in the face of Congressional gridlock, the U.S. Department of Education is planning an end-run on Congressional reauthorization of ESEA, using statutory language giving the Secretary of Education waiver authority. Rick Hess is sure this blows up the constitution. It's very possible that a court could theoretically rule that waiving all sorts of requirements goes well beyond the administrative discretion allowed by law, but that would depend first on someone upset with the waiver being able to claim standing in court. (Extreme nit-picking: I suspect that a substantive decision would rely more on statutory language than anything in the constitution. In other words, the substantive question would be whether Congress really intended to delegate as much of its authority in a waiver as Arne Duncan claims.) The obvious claimants with standing would be the states, but no state receiving a waiver will sue to stop its own waiver. With the narrowing of standing in federal courts, that leaves an open question of whether an organization such as Ed Trust would have standing (or organize people who would have standing) to sue. Then there's the question of which group would love to destroy their political relationships by suing to stop waivers that the states are desperate for. If the U.S. Department of Education wants to waive the 100% proficiency expectation, they'll probably get away with it in a legal sense.
That ability to get away with something legally is different from the political issues involved, and here, Hess has a point: apparently Duncan will waive the 100% proficiency standard as long as states adopt the Common Core, make at least 50% of teacher evaluations depend on test scores, and swallow everything else in the Duncan agenda that's set as a condition for the waiver. No money attached (unlike RTTT): just the partial release of AYP pressures. So the people who will object to this includes those committed to NCLB's AYP requirement as it stands, those who are opposed to whatever the conditions are, and those who realize this is a swap of unfunded mandates. Plus anybody in Congress who feels blindsided by this maneuver.
If I had a crystal ball, I would guess this trial balloon will sink ignominiously by the end of the summer, with an early-August Friday-afternoon announcement that based on feedback from Congress, states, and other leaders, Secretary Duncan will announce some new strategy-building talks aimed at flexibility, with the stakeholder talks to start in early September. But that sort of classic bury-the-story "we're going to announce an announcement" announcement would only appear in farces such as Yes, Prime Minister. It would never happen here, in reality. Nosirree.