Tag: ESEA

Illegal “No Child” Waivers Should Raise Much Louder Alarms

If the outcry over unilateral executive moves we’ve seen over the last few years remains consistent, Obamacare and immigration are likely to keep sucking up most of Republicans’ attention and the media’s coverage. But just as sweeping have been executive waivers issued from the hated No Child Left Behind Act – really the most recent reauthorization of the Elementary and Secondary Education Act – that have been instrumental in connecting numerous states to, among other things, the Common Core national curriculum standards. And yesterday, the Education Department issued guidance offering states the chance to obtain waivers – if they do the administration’s bidding, of course – lasting well into the term of the next president: the 2018-19 school year.

These waivers are almost certainly illegal – even a Congressional Research Service report often cited to suggest the opposite says they are unprecedented in scope and, hence, an untested case – and even if they are not deemed technically illegal, the reality is they still amount to the executive department unilaterally making law. NCLB does grant the Secretary of Education the authority to issue waivers from many parts of the Act, but it grants no authority to condition those waivers on states adopting administration-preferred policies. Indeed, as University of South Carolina law professor Derek W. Black writes in a recent analysis of waivers, not only does NCLB not authorize conditional waivers, even if a court were to read any waiver authorization as implicitly authorizing conditions, the actual conditions attached – “college- and career-ready standards,” new teacher evaluations, etc. – fundamentally change the law. In fact the changes, Black notes, are essentially what the administration proposed in its 2010 “blueprint” to reauthorize NCLB. And quite simply, the executive fundamentally changing a law is not constitutional.

The latest waiver guidance goes beyond even the toxic status quo. Not only is the President using his vaunted pen and phone to unilaterally make education law, but law that would continue well into his successor’s term. It is a very dangerous move that, quite frankly, deserves at least as much alarmed coverage as Obamacare waivers and immigration actions. If for no other reason, because the action is moving us swiftly toward a de facto federal curriculum. In other words, direct control over what the vast majority of the nation’s children learn.

Federal power can’t get much more invasive than that.

Obligatory ESEA Reauthorization Post

I should probably have been working overtime commenting on current efforts to reauthorize the Elementary and Secondary Education Act—currently known as No Child Left Behind—because it is the flagship federal education law. Based on national test scores, that makes it the biggest ship in a fleet of Titanics.

So why haven’t I been expending countless hours and pixels on the reauthorization, especially with the House passing its version today? Partly because there are almost no prospects of any reauthorization moving seriously on the path to enactment. The GOP-controlled House, and Democratically controlled Senate and White House, have given no indication that they will give any effort to move something to completion. And that is to be expected, not just because of infamous “gridlock,” but because President Obama unilaterally issued waivers from the law’s most onerous provisions—in particular the 2014-15 deadline for all students to be “proficient” in reading and mathematics—and in so doing released almost all pressure to change the law. Well, at least to change it the constitutional way: legislatively.

For what it’s worth, the House bill is better than the status quo, eliminating punishments for districts and schools that fail to hit “adequate yearly progress,” keeping spending slightly in check, and attempting to ensure that the U.S. secretary of education can’t all but require states to adopt national curriculum standards. That said, it is still a monstrous behemoth full of reporting requirements, giveaways to GOP-favored sectors like charter schools, and big spending. In other words, it’s nowhere near what the Constitution permits, and decades of performance measures scream for: no federal intrusion in classrooms outside of enforcing nondiscrimination and governing—if the Feds choose—District of Columbia schools.

Short of outright eliminating the federal schooling leviathan, there is one proposal worth looking at: the Local Education Authority Returns Now Act (LEARN) from Rep. Scott Garrett (R-NJ), which would let states declare they’ll run their own education systems, then let state taxpayers keep the money Washington would have used to “help” them in education. It would sever the cord Washington has around states to make them do its bidding—tax dollars their citizens had no choice about paying—and reward their taxpayers directly.

What about the Academic Partnerships Lead Us to Success Act (APLUS), which is a Heritage Foundation-backed piece of legislation? It is better than the status quo or main House GOP bill, but it contains two major, unacceptable provisions:

  1. A requirement that the U.S. secretary of education approve state requests to control consolidated funding.
  2. A continued requirement that each state have a single set of standards, tests, and “proficiency” goals. 

Essentially, it’s the same basic shell as No Child Left Behind, only with more state autonomy over spending. That’s not good enough.

That said, this is all moot. There doesn’t seem to be any serious effort to reauthorize the law, and there’s no indication that will change anytime soon. Based on what we’ve seen, that’s probably a good thing.

American Education, From Camelot to Obamaville

The president has relentlessly called for a more extensive—and expensive—federal role in education. Here’s just one example:

The human mind is our fundamental resource. A balanced Federal program must go well beyond incentives for investment in plant and equipment. It must include equally determined measures to invest in human beings—both in their basic education and training and in their more advanced preparation…. Without such measures, the Federal Government will not be carrying out its responsibilities for expanding the base of our economic… strength.

And if we spend all those new federal dollars on k-12 education, the president promised that “it will pay rich dividends in the years ahead.”

But here’s the strange part: in that same speech, the president made this seemingly ridiculous claim:

Our progress in education over the last generation has been substantial. We are educating a greater proportion of our youth to a higher degree of competency than any other country on earth.

It’s actually not so ridiculous when you learn that the president who said it was John F. Kennedy, in February of 1961. Back then, we really had been making educational progress.

Aside from the ill-fated National Defense Education Act of 1958, the federal government had made no attempt to improve k-12 academic achievement or attainment in the four decades before JFK… and yet, as he noted, American education did in fact improve during that period.

But within a couple of years of JFK’s assassination, Congress passed the Elementary and Secondary Education Act, now known as the No Child Left Behind Act. And in the four plus decades since, the feds have spent roughly $2 trillion trying to improve outcomes and attainment. Over that course of years, both graduation rates and academic achievement at the end of high school have been flat or declining.

Perhaps it could be argued that JFK couldn’t have known better. There was no history showing him what an expensive failure U.S. federal education spending would turn out to be. But the same cannot be said of President Obama, or of those in Congress who continue to tell the public, and presumably themselves, that fed ed. spending is a useful “investment.”

Today, we can look back at a half-century of failed federal education programs. We can think about how much better off the U.S. economy and our children would be if we hadn’t thrown $2 trillion at a calcified school monopoly that cannot spend money efficiently.

And reflecting on that history, perhaps we’ll find the wisdom not to repeat it.

Topics:

Sen. Rubio to Sec. Duncan: Dear Sir, Obey the Law

Senator Marco Rubio has just written to Secretary of Education Arne Duncan, requesting that he not break the law. At issue is the administration’s plan to offer states waivers from the No Child Left Behind act if they agree to adopt national standards or pursue other educational goals of the administration. Rubio states that these conditional waivers violate the U.S. Constitution, the Department of Education Organization Act, and the No Child Left Behind Act. He’s right.

As my Cato colleagues and I have noted many times, the Constitution mentions neither the word “school” nor the word “education,” and so, under the 10th Amendment, reserves power over those concerns to the states and the people.

The Act creating the Department of Education is equally clear:

No provision of a program administered by the Secretary or by any other officer of the Department shall be construed to authorize the Secretary or any such officer to exercise any direction, supervision, or control over the curriculum, program of instruction, administration, or personnel of any educational institution, school, or school system… .[Section 3403(b)]

Nor is the NCLB particularly ambiguous:

‘Nothing in this title shall be construed to authorize an officer or employee of the Federal Government to mandate, direct, or control a State, local educational agency, or school’s specific instructional content, academic achievement standards and assessments, curriculum, or program of instruction. [Section 1905]

The Secretary’s conditional waivers from NCLB mandates, in return for dancing as he desires on national standards, seem to violate all of the above. I wonder if any education reporter will have the temerity to ask Arne Duncan on what grounds he believes he is entitled to ignore these laws? Senator Rubio’s letter certainly gives them a golden opportunity to do so.

Demonization vs. the Constitution

Yesterday, Rep. John Kline (R-MN), chairman of the House Education and the Workforce Committee, introduced the first new legislation aimed at breaking down the prescriptiveness of the No Child Left Behind Act. It’s a small step in the right direction, but there are two serious problems with it:

  1. It doesn’t come nearly close enough to the reform we need.
  2. Democratic reaction to it illustrates why it is so hard for politicians to obey the Constitution.

First the insufficiency of the bill. The State and Local Funding Flexibility Act would, essentially, allow states and districts to take federal funding that comes through numerous streams and apply it to different streams. For instance, if a state wanted to take dollars slated for the 21st Century Community Learning Centers program and apply them to Teacher Quality Grants, it could do so without seeking Washington’s permission.

That’s good as far as it goes; it makes sense, at least in theory, to let state and local authorities manage money according to their superior understanding of the needs of their communities.  But that’s in theory.

The first serious problem is that, ultimately, Washington would still be dictating outcomes to states and districts. As the summary for Kline’s bill states:

The State and Local Funding Flexibility Act will maintain monitoring, reporting, and accountability requirements for states and school districts under existing ESEA programs.

That suggests, at least as far as this bill goes (Kline has promised more legislation to come), that states will still have to meet all of NCLB’s rigid standards, testing, and “adequate yearly progress” requirements.   

The next big failure of the bill is that it trusts state and local bureaucrats to do what’s best for kids and handle taxpayer funds efficiently. As many people have pointed out, that’s about as likely to happen as your winning the Powerball.  

Finally, the bill fails because it keeps the same basic, unconstitutional model we’ve had for decades: federal funding of education — and associated rules — despite Washington having no constitutional authority to do so. That’s why the LEARN Act, sponsored by Rep. Scott Garrett (R-NJ), is superior to both what Kline has proposed and the A-PLUS Act that continues to make the rounds. LEARN would simply allow states to declare that they will not be dictated to by Washington, and let their taxpaying citizens, not education bureaucrats, reap the rewards by getting back the “education” dollars Washington took from them.

Unfortunately, a revolting tactic commonly employed by Democrats — but little different in odor quotient from, say, GOP attacks on war critics as unpatriotic — threatens to chill any effort to impose rationality on education policy. It’s the all-too-standard implication that if you’re for cutting federal education spending or even just making it more efficient, you’re at best indifferent to civil rights and, at worst perhaps, secretly a pre-Brown v. Board segregationist. As Education Week reports:

Rep. George Miller, D-Calif., the top Democrat on the House education committee, said the measure is “an offensive, direct attack on civil rights” that is sure to weaken efforts to ensure that disadvantaged and minority kids get access to educational opportunities.

“This back-door attempt at fulfilling campaign promises to dismantle the federal role in education will turn back the clock on civil rights and especially harm low-income and minority students,” Miller said.

This sort of rhetoric is designed to do but one thing: defeat reform efforts by all-but-directly accusing supporters of racism, or at least inhuman callousness. But notice what gets no mention: the Constitution, the thing that gives the federal government its only powers and includes no authority over education. Well, almost no authority: under the 14th Amendment Washington does have a responsibility to ensure that states and local districts do not discriminate in their provision of education, but the amendment in no way authorizes federal spending on education.  

And let’s not pretend that current federal intervention is doing any good. National Assessment of Educational progress math scores for African-American 17-year-olds — the schools’ “final products” — did rise markedly from 1973 to 1990, which could very well be at least partially a product of proper federal intervention: ending de jure segregation. But from 1990 to 2008, which includes the age of federal “accountability,” we’ve seen at-best stagnation, with the 1990 average score at 289 (out of 500) and the 2008 score at 287. Reading is the same story: healthy increases until 1988 (but fastest in Reagan’s anti-fed-ed 1980s) and stagnation after that. Indeed, the average score for African-American 17-year-olds dropped from 274 to 266 between 1988 and 2008. Meanwhile, real federal K-12 spending more than doubled, rising from $32.6 billion in 1988 to $73.2 billion in 2008.

There is, frankly, no good argument for keeping the federal government in education. But we can’t even have a reasoned debate about that as long as thinly veiled assertions of racism and callousness are the the standard response to any downsizing proposal.

Standards Garbage In, Standards Garbage Out

Over at Jay Greene’s blog, Sandra Stotsky riffs off an Education Week report about educators around the country not seeing the difference between their old state standards and new, “Common Core” standards. Stotsky offers a theory for why this is: Common Core – as far as anyone can tell because the standards-drafting process was so opaque – was put together largely by the same people responsible for the bad old state standards. As a result, maybe they really aren’t all that different.

The general ignorance about the standards brings up an important point. As Mike Petrilli at the Fordham Institute has pointed out, yes, the $4.35-billion federal Race to the Top pushed a lot of states to adopt the Common Core standards, but that doesn’t explain states adopting the standards after RTTT had concluded. It’s a reasonable point. So what else is at play?

Likely one part of the explanation is that many state education officials really don’t know much about either the Common Core or their state’s standards, so they’ve seen no big problem with switching over. This general ignorance has likely been exacerbated by Common Core advocates’ strategy of keeping the whole national-standardizing process out of the public eye, whether it’s been secretive drafting of the standards, or supporters’ constant mantra of “don’t worry, it’s all voluntary” while petitioning for federal adoption “incentives.” And let’s face it: Just going with the flow and adopting national standards furnishes one less thing state officials have to take responsbility for. If the standards turn out to be a disaster – or simply gutted by special interests in Washington – all that state officials have to say is ”sorry, the whole nation was adopting them. Heck, the feds were practically forcing us to adopt them. It’s not our fault.” Add to all this that No Child Left Behind likely had much of the public thinking we already had national standards, and it’s little wonder that the Common Core was able to worm its way into so many states. 

Whether it’s been adoption in response to bribery, passing the buck, or just keeping everything under the radar, the national-standards drive has been a troubling affair.  But there is still hope: Washington hasn’t cemented national standards and testing by attaching them to the big federal dollars flowing through the Elementary and Secondary Education Act, aka, No Child Left Behind. But efforts to revise the law are underway, and if the final version contains any connection between national standards and eligibility for federal taxpayer dough, then there will be no escape.

NCLB a Barrier, Not an Aid

Sandy Kress, former Bush administration official and architect of NCLB, took issue last Friday with my post criticizing the law. Today, education writer Rishawn Biddle publishes and expands on Kress’ critique. Sandy’s objection was that Idaho, one of the states planning to start ignoring the law, isn’t performing well academically and so “is hardly a poster child for arguing against a federal role.”

As it happens, I wasn’t using Idaho—or any “poster child”—to make the case against against NCLB. I was using the experiences of real children. More specifically, I was using the performance of nationally representative samples of students on the National Assessment of Educational Progress Long Term Trends tests. The LTTs for students near the end of high school are the best gauge we have of the performance of the nation’s public schools over time. The stagnation and decline in those results across subjects are not the only evidence or argument against NCLB, but they are compelling.

Rishawn offers little in the way of argument or evidence to support his own comments, but one of them is nevertheless worth responding to because it represents a common view that is not only wrong but exactly backwards: the notion that NCLB helps to advance the kind of market reforms that actually work. Au contraire.

The state tests NCLB focuses on are all but worthless for comparing states to one another or for determining trends over time, so the law tells us considerably less than we could already discover from the NAEP.  NCLB has, however, been an epic, expensive distraction, pulling the efforts of countless activists, policymakers and educators away from the market reforms that work and consuming their time arguing about the details of a policy that never had a sound research base to support it and still does not. Adding insult to injury, NCLB exacerbated the unconstitutional overreach of its earlier form, the ESEA. If NCLB worked better and more efficiently than alternative policies, and had no deleterious side effects, I would be all for amending the Constitution to allow it. It doesn’t.

So no, NCLB is not an aid to meaningful reform. It is a barrier. The sooner we get over it, the better.