September 12, 2005

Honorable Hank M. Bounds
Superintendent of Education
State Department of Education
P.O. Box 771
Jackson, MS 39205

Dear Dr. Bounds:

Thank you for your careful and thoughtful presentation of Mississippi’s educational challenges in the wake of Hurricane Katrina. As you may know, I had the opportunity to travel to Southaven, Mississippi, last week. While there, I was moved by the hospitality of the people of Mississippi and the resilience of those who had just arrived from Louisiana. In conversations with students and parents, I was touched by their hope and their commitment to moving forward and rebuilding following these devastating events. Be assured that the Department of Education staff and I stand with you during these challenging times.

We have reviewed the specific requests you outlined in last Wednesday’s conference call and follow-up letter, and I am pleased to respond. First, with respect to additional funding, the President has asked me to develop a plan to ensure sufficient short- and long-term funding for the affected schools and children. We are making great progress and expect to complete our work very soon. Thereafter, and upon completion of appropriate Administration clearances, we will submit a proposal to Congress for its consideration. The information that you provided has been helpful in this process, and we will notify you of further developments regarding available resources. In the meantime, the Federal Emergency Management Agency (FEMA) has broad authority to use disaster relief funds in affected States. Specifically, FEMA may provide temporary school facilities, as well as transportation to and from schools. We are coordinating with FEMA to help ensure that they provide appropriate assistance in these areas as a part of their overall response to Hurricane Katrina.

Second, we have reviewed your waiver requests, and I have grouped the Department’s responses into four categories: (1) Waivers To Be Granted; (2) State Flexibility Is Available: Federal Waivers Not Needed; (3) No Current Legal Authority; and (4) Additional Information Needed.

You requested a waiver of the Title I maintenance-of-effort requirement for affected districts. The Department will grant your request for those school districts and we will work with you and your staff to obtain additional information on the names of these school districts, the amount of fiscal effort to be waived, and other relevant fiscal information that will help complete the waiver process.

You also requested a waiver of the “[f]unding timeline (30-month) for all FY04, FY05, and FY06 flow-through, discretionary and competitive grants to affected districts.” The Department is granting an immediate 12-month extension of the time within which Mississippi has to obligate funds that have been awarded under the Elementary and Secondary Education Act of 1965 (ESEA) and for which the obligation deadline is September 30, 2005. We will also continue to work with you and your staff on the funding deadlines for the other affected fiscal years if additional relief is needed as those deadlines occur.

You requested a waiver of the Title I (Education of the Disadvantaged) and Title IV (Safe and Drug-Free Schools) carryover provisions. In each of these cases, you do not need a waiver from the U.S. Department of Education (ED). Mississippi has authority to waive the 15% carryover limitation in Title I as provided under § 1127(b) of the ESEA. Further, Mississippi can waive the 25% carryover limitation in Title IV as provided under § 4114(a)(3)(B) of the ESEA.

You requested a waiver of the allocation requirements of Title I, Part A “to provide more funding to districts that will absorb displaced students and decrease allocation[s] to affected districts that are not operational.” While we expect to ask Congress for broad waiver authority in response to Hurricane Katrina, we are not currently authorized to waive the statutory formulas for allocating funds to States, local educational agencies (LEAs), or other recipients. However, Mississippi has authority to accomplish its goal without a waiver. Under § 1126(b) of the ESEA, a State educational agency (SEA) may allocate Title I, Part A funds, without any action by us, among affected LEAs if an LEA provides free public education for children who reside (or resided in) the school district of another LEA. Moreover, under § 1126(c), if an LEA determines that the amount of Title I, Part A funds an LEA would receive is more than the agency will use or if other unused Title I, Part A funds are available, the SEA may, without any action by ED, reallocate those funds among districts on the basis of need in accordance with criteria established by the SEA.

You also requested a waiver of the allocation requirements for Title II, Part A (Teacher Quality); Title IV, Part A; and Title V, Part A (Innovative Programs). In each of these cases, you do not need a waiver from ED. Mississippi can work with school districts to reach a formal agreement(s) on the transfer of funds, from one district to another, where the second district serves students who reside or resided in the first district.

You requested: (1) waiver of the “[h]omeless [McKinney-Vento Homeless Assistance Act (McKinney Act)] grant competition requirements so that MS [Mississippi] can provide discretionary grants to affected districts”; (2) waiver of the “[s]upplement, not supplant” requirements in Title I and Title IV of the ESEA to transport homeless students and preschool children; and (3) waiver of the September 30, 2005 deadline for obligation of Carl Perkins Vocational and Technical Education Act (Perkins Act) grant funds. Unfortunately, the Department does not have statutory authority to waive the grant competition requirements of the McKinney Act. Further, under the ESEA waiver authority, we are specifically prohibited from waiving the “supplement, not supplant” requirements (see § 9401 of the ESEA), and there is no legal authority to grant a waiver of the deadline for obligation of funds under the Perkins Act. We certainly understand the circumstances you face in Mississippi and we will be as flexible as possible.

Further, as earlier mentioned, we expect to ask Congress for specific Hurricane Katrina-related waiver authority that would enable us to better meet the education needs of the Gulf Coast region and other affected areas. The limited waiver authorities we currently possess are unlikely to be sufficient for us to respond as fully as we would like in this extraordinary situation. Should Congress grant additional waiver authority, we will contact you to discuss how that authority might be used to address your needs.

You requested a waiver of adequate yearly progress (AYP) for several affected States. As you know, AYP is the linchpin of the No Child Left Behind accountability system, and I am reluctant to waive AYP now. Since the tests in Mississippi on which AYP determinations are made will not be administered until spring 2006, it is premature for us to consider this request at this time. However, we will contact you in the coming days to discuss this further.

You also requested a waiver of: (1) various deadlines for specified programs under the ESEA and under the McKinney Act; (2) the highly qualified teacher and paraprofessional requirements; and (3) flexibility “to expend current Teacher Quality Grant funds outside of the current scope of the project to help displaced teachers (i.e., monies to recruit, provide relocation expenses, and housing assistance to our displaced teachers).” First, regarding the extension of deadlines for the data submissions (Report on Neglected or Delinquent Children, Collection for Homeless Education, 21st Century Community Learning Centers, Migrant Child Count, and Migrant Re-interview process), I have asked the specific program offices in ED to provide me with details about these issues so that I can better assist you. I am granting your request to extend the deadlines. We will contact your staff as soon as possible to work out the details of what the new deadlines will be.

Second, as to highly qualified teachers and paraprofessionals, we are reviewing this matter, in general, and want to talk with you more about your specific needs in Mississippi. As you know, teacher standards are largely governed by State law, which may give you much of the authority you need. Please know that we will work with you to ensure that students receive a high-quality education. Third, with respect to the Teacher Quality Grant funds, we are reviewing the project application and will discuss with your staff possible amendments to that application that would permit greater flexibility.

Finally, I’d like to mention two other issues that were not raised in your letter. A visit by ED staff from the Office of English Language Acquisition that was scheduled for today, September 12, has been postponed. We will reschedule when appropriate. Second, you may wish to review and determine whether any requests for flexibility may be needed under the Individuals with Disabilities Education Act (IDEA).

Again, thank you for contacting me and sharing your requests and concerns. Please know, too, that Department staff stand ready to assist in every way possible in the days ahead. I have also designated Assistant Secretary Henry Johnson at 202-401-0113 of the Office of Elementary and Secondary Education to serve as our liaison between the two Departments for additional follow-up. Finally, please know of my personal commitment to you and the children of Mississippi. I look forward to working closely with you in the days ahead.