“It seems premature at this point to take steps outside the legislative process that would address NCLB’s problems in a temporary and piecemeal way,” said Senate education committee Chairman Tom Harkin, a Democrat from Iowa.

House education committee Chairman John Kline, a Republican from Minnesota, said he’s slowed down the reauthorization process because Democrats on his committee “have really started to engage.”

Kline plans to introduce a bill that would give local school districts more flexibility in how they spend federal money. For example, he would like to allow them to move money for teacher training to underfunded special education programs.

But not everyone agrees with the idea of more flexible spending. The Alliance for Excellent Education warns that such measures could end up hurting students who need help the most.

Republicans and Democrats agree the law is broken. The Bush-era legislation has led to schools being labeled failures even though they are making improvements, and has discouraged states from adopting higher standards.

Duncan said he’s encouraged by talks with federal lawmakers in recent weeks indicating the law might see revisions this year. But he said he wants a backup plan in case that doesn’t happen.

“We can’t afford to do nothing,” he said.

Duncan said the department is talking to state officials, teachers, principals, and parents about how to help schools if No Child Left Behind isn’t rewritten. He said any actions taken by the department would not prevent Congress from continuing to negotiate reauthorization.

The news comes as relief for governors, who say their schools should not be punished because of an outdated law. In Georgia, for example, the state Department of Education is creating a “performance index” that measures growth in academic achievement rather than just year-to-year test scores and looks at more subjects than just reading and math, the only two required under the federal law.

“I would like the flexibility to use this performance index, as it focuses on what makes a school successful and academic growth in each area,” said Gov. Nathan Deal.

But some observers say Duncan’s plan might backfire with Congress, because waivers aren’t popular with lawmakers who want more accountability for schools.

“I don’t get all the drama. It almost has the feel of a threat to Congress,” said Sandy Kress, who served as an education adviser to President George W. Bush in the passage of No Child Left Behind in 2001. “One has to worry that what they’re really saying is, ‘We’re going to open up the candy store and let people in and they can have as much as they like.'”