Tag: no child left behind

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.

Common Core End Game

For far too long a big part of the Common Core debate has been about establishing simple fact: the federal government provided serious coercion to get states to adopt the Core, and the Core’s creators asked for such arm twisting. Indeed, just yesterday, Andy Smarick at the Core-supporting Thomas B. Fordham Institute lamented that the write-up for President Obama’s education budget proposal gives the administration credit for widespread Core adoption. Wrote Smarick: “The anti-Common Core forces will likely use this language as evidence that Common Core was federally driven.” Of course it was federally driven, by Race to the Top (RTTT) and No Child Left Behind (NCLB) waivers! But the budget proposal tells us far more than that.

The big story in the proposal is – or, at least, should be – that the president almost certainly wants to make the Core permanent by attaching annual federal funding to its use, and to performance on related tests. Just as the administration called for in its 2010 NCLB reauthorization proposal, POTUS wants to employ more than a one-time program, or temporary waivers, to impose “college and career-ready standards,” which–thanks to RTTT and waivers–is essentially synonymous with Common Core. In fact, President Obama proposes changing Title I of the Elementary and Secondary Education Act – of which NCLB is just the most recent reauthorization – to a program called “College- and Career-Ready Students,” with an annual appropriation of over $14 billion. 

This was utterly predictable. Core opponents, who are so often smeared as conspiracy mongers, know full well both what the President has proposed in the past, and how government accumulates power over time. RTTT was the foot in the door, and once most states were using the same standards and tests, there was little question what Washington would eventually say: “Since everyone’s using the same tests and standards anyway, might as well make federal policy based on that.” Perhaps given the scorching heat the Common Core has been taking lately, most people didn’t expect the administration to make the move so soon, but rational people knew it would eventually come. Indeed, the “tripod” of standards, tests, and accountability that many Core-ites believe is needed to make “standards-based reform” function, logically demands federal control. After all, a major lesson of NCLB is that states will not hold themselves accountable for setting and clearing high academic bars.

While it’s a crucial fact, the full story on the Common Core isn’t that the feds coerced adoption. It is that the end game is almost certainly complete federal control by connecting national standards and tests to annual federal funding. And that, it is now quite clear, is no conspiracy theory.  

In Education, the Goal Posts Move

Other than in Shaquille O’Neal’s stunning vision of the future of basketball, the goals in sports don’t move. If they did, it would make the games a whole lot more random, and the outcomes unreliable indicators of who is really the better team. But in education—as we’re seeing with the hue and cry over new test results in New York—the goals do move. A lot. That’s pretty ironic considering that the top-down measures are specifically intended to establish set standards.

Earlier this week, New York released the results of its first statewide tests to gauge student mastery of the Common Core national curriculum standards. Not surprisingly, “proficiency” rates crashed, plummeting between 24 and 34 percentage points depending on the subject. But as Core supporters rightly warned, plummeting scores don’t necessarily indicate plummeting performance; they indicate that the goal posts have moved. Of course, supporters say the posts have moved higher—like basketball hoops in Shaq’s 2044—and that may be the case. But what’s more important is just that the goals are in different places—maybe they moved to the side, not up—and students haven’t been shooting in that direction.

This is far from the first time the goals have jumped, ducked, or shifted in the “standards” era. Throughout the No Child Left Behind years we saw states changing tests, standards, etc., so results often weren’t comparable from one year to the next. And New York itself revealed a few years ago that its tests had gotten easier over the years, rather than its education system getting much better.

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.

Americans Deserve to See Federal Role in National Tests

The drive to impose uniform curriculum standards on the nation’s schools has been one of stealth, and at times, seemingly intentional deception. Most egregious has been the mantra of Common Core proponents that the effort has been “state-led and voluntary,” despite Washington coercing state adoption through the Race to the Top program and No Child Left Behind waivers; standards creators encouraging just such federal “incentives”; and Washington selecting and funding the two groups creating the tests to go with the standards. And now, more than a week after the U.S. Department of Education announced the creation of a “technical review” panel to assess the assessments, it seems increasingly certain that the panel’s work will be done behind closed doors.

At least one report asserts that the meetings will, indeed, be closed to the public. Education Week’s initial reporton the review says that the panel’s “feedback” will eventually be made public in “a yet-to-be-determined form,” but says nothing about the meetings themselves. Cato Center for Educational Freedom efforts to confirm the meeting status with the U.S. Department of Education have come up empty, with calls over two days either resulting in no information or simply going unanswered. At best, then, the meetings will be open to the public but ED has a terrible communications system. At worst the panel’s work will be completely under wraps save for some kind of final – and perhaps heavily filtered – report.

Either scenario is unacceptable. These tests are being funded by taxpayers, and the goal is ultimately to use them to assess the math and reading mastery of the nation’s children. Funders and families deserve to see what this review panel is doing, and shouldn’t have to pull telecommunications teeth to find out if and how they can do that. In addition, Common Core supporters have taken to painting opponents as paranoid, while at the same time denying or downplaying the federal government’s major role in pushing the Common Core. It would not be surprising were they to use the same tactics should Common Core opponents raise questions about the degree to which the Feds are influencing what is on the tests. The panel may well leave test content alone, but given the track record so far it is rational to fear the worst, especially when it seems the review panel is purposely being kept out of real sunlight.

Americans deserve to see all that the Feds are doing with this supposedly non-federal effort.

Why Are Conservatives Incoherent on Federal Education?

For a nice overview of the counterproductive incoherence of Republican education efforts over the decades, check out this piece by Frederick Hess and Andrew Kelly of the American Enterprise Institute. And for a sense of how confused conservatives remain when they write pieces telling other conservatives how to have “good” federal education policy, read the same piece. Its history section gives you the first part, and, unfortunately, its other sections give you the rest.

Hess and Kelly – who are generally pretty sharp – furnish a terrific overview of what happens when you talk “local control” of government schools and decry federal micromanaging, but can’t stop yourself from spending federal money and love ”standards and accountability.” Basically, you get a great big refuse heap of squandered money, red tape, educational stagnation, and political failure.

Having laid all that out pretty nicely, you’d think that Hess and Kelly would reach the logical conclusion: Conservatives should obey the Constitution and get Washington out of education. But they don’t. Instead they give precious little thought to the Constitution, and make policy prescriptions that fundamentally ignore that government tends to work for the people we’d have it control. You know, concentrated benefits, diffuse costs; iron triangles – basically, the big problems Hess and Kelly decry at state and local levels.

Start with their constitutional argument (such as it is):

The federal government does have a legitimate role to play in schooling — and it always has. From the Land Ordinance of 1785, which set aside land for the purpose of building and funding schools, through Dwight Eisenhower’s 1958 investment in math and science instruction after the launch of Sputnik, the federal government has recognized a compelling national interest in the quality of American education.

Wow! What a sweep of history! What a great many years this covers!

The thing is, most of those years see essentially no federal education activity, and the first year mentioned – 1785 – precedes the Constitution. Why very little activity between 1785 and 1958? Because relatively few people thought the national government had any role to play in governing education. That’s why neither the word “education” nor “school”  (or, for that matter, ”compelling national interest”) is in the Constitution, and even a commission created by Franklin Delano Roosevelt said that there is no constitutional federal role in education. Washington does have jurisdiction over District of Columbia schools, and a responsibility under the 14th Amendment to prohibit discrimination, but that’s it.

OK, to be fair, it could also be argued that Congress can constitutionally pass education provisions like those in the Land Ordinance. But not because Washington has power over education. No, because as you see in Article IV, Section 3 of the Constitution, it has power over territories. Of course, states and districts are not territories, and the 10th Amendment reiterates what is clear from the granting of only specific, enumerated powers to Congress:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

In an effort to deal with the very clear failures of federal education policy – but without the clarity of following the Constitution – Hess and Kelly offer three things they think the Feds can and should focus on: transparency, research, and “trust-busting.” However, all three ignore the fundamental political reality that school systems tend to be controlled by their employees because the employees have the most at stake. And what are their incentives? Same as mine and yours: to get compensated as generously as possible and have no one hold them accountable for their performance. The result, of course, has been oodles of money spent without meaningful academic improvement.

Start with transparency. Lauding No Child Left Behind for having improved “citizens’ ability to gauge and compare school quality,”  Hess and Kelly argue that the Feds “should require that states collecting federal school funds measure and report detailed data on school quality and educational costs in a consistent, uniform way.” They caution, however, that Washington shouldn’t prescribe standards or curricula, but should measure “schools’ return on public investment.”

Talk about conflicted! How exactly do Hess and Kelly expect the Feds to both stop short of mandating curriculum and standards, and provide an accepted measure of specific schools’ return on investment? Even if you could thread the needle for a while, it is very hard to imagine Washington not eventually narrowing acceptable measures down to a single curriculum and test so that results could be uniform and distilled into soundbites. And what would likely happen even if the standards started off rigorous and the testing tough? The employees who would ultimately be held accountable would simply move their dumbing-down pressure from state and local levels to the federal level, where policy was now being made.  Nothing would be solved, and there would be huge added problems of a new, monolithic standard that could in no way effectively serve greatly diverse kids, as well as the quashing of competing curricular ideas.

Next we’ve got the research argument, which is predicated on the well-known contention that the incentives for private-sector investment in “basic” scientific research – which doesn’t offer immediate returns – are too weak to provide for optimal amounts. The Feds, therefore, have to step in with oodles of grant money. Hess and Kelly would like to extend that model to education research.

Education, however, is not particle physics, the kind of research we generally imagine as “basic.” The need for major equipment investment is not nearly as great for education, nor are the likely benefits of, say, studying the effects of flash cards as far distant as the industrial applications of string theory. Moreover, if we had broad school choice, with schools able to seek profit without penalty, educators would have every reason to invest in research and find better, more efficient ways to teach kids. Finally, there is good evidence that science funding is just as likely to translate into rent-seeking benefits to the scientists as scientific benefits to the public.

Oh, and the constitutional basis for education research spending? Hess and Kelly don’t even try to offer one.

Finally, we have “trust-busting.” Here even Hess and Kelly’s examples illustrate how mistaken their ideas are. While sensibly calling for a reduction in calcifying federal rules and regulations, Hess and Kelly also argue that the Feds should be able to set up “private” entities to compete with the public-school monopoly. They cite as an example the American Board for Certification of Teacher Excellence, which provides a teacher preparation and certification process separate from those established by states. They also note that ABCTE has been “generally neglected.” Which is probably a good thing. After all, think of two other “private” federal creations: Fannie Mae and Freddie Mac. Seems there can be big problems when Washington creates supposedly private entities.

Then there’s this: “A related role for federal lawmakers is to help lift the burden of bad past decisions and troubling policy legacies that hinder reform-minded state and local leaders.” Hess and Kelly argue that Washington should create a form of bankruptcy that lets states and districts render null and void labor contracts and other obligations that make it hard for them to do business. And what example do they use of organizations that have been crippled by “legacy” contracts? General Motors and Chrysler.

Of course, thanks to the federal government, GM and Chrysler didn’t go through normal bankruptcy, did they? No, they went through processes jury-rigged to favor politically important special interests. That lesson should be screaming at Hess and Kelly: Give Washington power over something and they won’t use it for the common good. They will use it to reward the politically powerful, the very state and local problem Hess and Kelly are trying to solve!

The simple reality is that the federal government is no less subject to special-interest control – the ultimate result of the basic political problem of concentrated benefits and diffuse costs – than state and local governments. Except, that is, that Washington is even more distant from the people than state and local governments, and if people don’t like their state or local schools they can at least move.

There is, really, only one solution to the basic government problem of concentrated benefits and diffuse costs, and we do no one any favors by denying it: We need to end government control of education.  We need a free market, in which educators are free to teach as they see fit and are held accountable by having to earn the business of paying customers.

The federal role in getting to this, thankfully, is simpler than what must be done at state levels, where constitutional authority over education actually exists. All that Washington has to do is obey the Constitution and get out of education. And yes, Rick and Andrew, that is what the Constitution requires.

Not Quite Blowing Up the Death Star, but…

For two years the national curriculum blitz has been rolling through states unabated, with “Common Core” standards now fully adopted in all but five states and development of national tests continuing. Of course all of this has been done with heavy federal air support, including making adoption of Common Core crucial for states wanting to access Race to the Top funds, and Washington selecting and funding the national test developers.

Last week, however, national curriculum forces suffered a small but notable setback, with the Utah State Board of Education withdrawing the Beehive State from the Smarter Balanced Assessment Consortium, one of the two consortia developing tests to accompany the Common Core. In terms of its on-the-ground impact, it’s not huge —Utah will still have the Common Core standards—but symbolically it could be big, showing that states can undo decisions they may have made in haste, or in pursuit of federal money or favors. And to be honest, it is more official push back than I expected.

That said, the crucial point will still be when the Elementary and Secondary Education Act—AKA, No Child Left Behind—comes before Congress for reauthorization. That is when it will be decided whether adopting the Common Core will be necessary for states to get huge amounts of annual federal funding, and whether scores on the national tests will determine whether districts, schools, or children get rewarded or punished. If those measures are included—especially the high-stakes testing—then it is game over: we will have an indisputably federal curriculum, and no state will dare resist it. They simply won’t be willing to jeopardize billions of annual dollars.

Until then, national standards opponents can take heart in Utah’s small act of defiance.

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