Waiving Statutes: When the Law May Not be the Law

by Julie Pelegrin

For the last 140 years, the General Assembly has been introducing, debating, amending, and passing legislation. The enacted laws may allow an official or a governing body, under certain circumstances, to waive a statutory time limit, penalty, or fee; and individuals can sometimes waive their statutory or constitutional rights. But, generally speaking, the statutes are the statutes and only the General Assembly can change them or make exceptions to them. Basic civics, right?

Usually right. But there are two areas in which elected persons other than legislators can waive a statute.

One is the Colorado Works Program, which provides assistance to needy families. Acting together, the Governor and the Department of Human Services, at the request of a county, can waive most of the statutory and regulatory requirements of the Colorado Works Program, so long as the waiver is designed to improve the county’s methods for helping people achieve self-sufficiency, meeting work participation rates and performance goals, or reducing dependency. But the Governor and the Department cannot waive statutes or rules that govern:

  • Statewide eligibility for assistance;
  • The amount of the basic cash assistance grant;
  • The county’s maintenance of effort requirement;
  • A federal law requirement; or
  • A participant’s right to appeal a county decision (though the statutes that set the appeal procedures may be waived).

The other area is K-12 education. The State Board of Education can waive most of the education statutes and rules at the request of a school district, a charter school, or a district of innovation. The standards and procedures for the waivers vary depending on who is requesting the waiver.

School District Waivers
A school district board of education that seeks a waiver must first hold a public meeting to discuss the statutes it wants waived and pass a resolution stating its intent to apply for the waiver. The local board must consult with the school district accountability committee before the meeting. The local board may seek a waiver for the entire school district or only for certain schools of the district. Certain school districts must also get approval from a majority of the affected district or school accountability committee members, the affected licensed administrators, and the affected teachers before they can apply for a waiver.

Next, the local board must submit its application to the State Board of Education. The application must explain how the school district will comply with the intent of the waived rules or statutes. If the State Board grants the waiver, the district must comply with this intent statement. In a public meeting, the State Board will grant the waiver request if it finds that waiving the statute or rule will enhance educational opportunity and quality within the school district and that the costs to the school district of complying with the statute or rule significantly limit educational opportunity within the school district. If granted, the waiver continues until the State Board revokes it in a public meeting, either at the local board’s request or because the State Board decides on its own that there is a good reason to revoke the waiver.

Charter School Waivers
A charter school can also ask the State Board to waive a statute or rule. There are certain statutes that the State Board has automatically waived for all charter schools. A charter school just needs to list in its charter application or contract the automatic waivers it will be using. If the charter school wants to request additional waivers, it must list those in the charter application or contract, along with its rationale for requesting the waiver and an explanation of how it will meet the intent of the waived statute or rule. Once the charter contract is finalized, the authorizing school district must submit the charter school’s waiver request to the State Board, which has 45 days to grant or deny the waiver. If it denies a waiver, the State Board must explain why it did so. The bases for granting or denying a waiver are not clear, but when deciding which statutes to automatically waive, the State Board must consider the overall impact and complexity of the statute and the potential consequences that waiving the statute may have on a charter school’s practices. A charter school waiver continues through the term of the charter contract, but the State Board periodically reviews it. The State Board may revoke the waiver if it decides the waiver is no longer necessary.

District of Innovation Waivers
The process for waiving statutes for a district of innovation is a hybrid of the school district and charter school procedures. First, a local board must approve an innovation plan submitted by one or more schools of the district or prepared by the school district itself. The innovation plan explains the innovations that the school wants to implement that will help it improve student performance and outcomes and lists any statutes or rules that need to be waived to implement the innovations. The plan must be supported by a majority of the affected administrators, teachers, and school accountability board members.

If the local school board approves an innovation plan for a school or a group of schools, it submits the plan to the State Board and requests designation as a district of innovation. If the State Board grants the designation, it waives the statutes and rules listed in the innovation plan. The State Board must grant the designation unless it thinks the plan would actually decrease the level of academic achievement in the affected schools or the plan is not fiscally feasible. The waivers continue so long as the designation continues. There is no schedule by which the State Board reviews the designation, but the district of innovation reviews the performance of the affected schools every three years.

Statutes that Cannot be Waived
Certain statutes cannot be waived for anyone; some statutes can be waived for some, but not others. For example:

  • The State Board cannot waive the school finance statutes or the data reporting requirements for school performance reports for a school district, a charter school, or a district of innovation.
  • The State Board cannot waive the special education statutes or the requirements for fingerprinting and background checks of employees for a school district or a district of innovation ā€“ but it can waive them for a charter school.
  • The State board cannot waive the statutes concerning state assessments for a school district or a charter school ā€“ but it can waive them for a district of innovation.
  • The State Board cannot waive the accreditation and school performance statutes, the tobacco-free schools requirements, and the requirement to adopt a conduct and discipline code for a school district ā€“ but it can waive them for a charter school or a district of innovation.