School Czar Flunks Civics

This article appeared in The Orange County Register on July 9, 2011.

Even as renewal of the No Child Left Behind Act looks increasingly unlikely anytime soon, the debate over Washington's place in schooling has heated up. Unfortunately, all the noise has drowned out the primary — but almost completely forgotten — reasons Washington should keep to itself: its very limited Constitutional powers and human reality.

The burning question right now is what authority the U.S. Secretary of Education has to release states from NCLB's requirements. It's a topic brought to the fore by Secretary Arne Duncan's threat that if Congress doesn't reauthorize NCLB by the start of the new school year the administration will do so itself, waiving many of the law's requirements in exchange for states adopting administration-dictated reforms.

This has raised the hackles of many educators and policymakers, who argue that while the secretary might have authority to grant waivers under the law, he definitely can't use that power to coerce states to adopt administration-preferred policies. Worse yet, in a letter sent Wednesday, Secretary Duncan essentially refused to tell House education committee chairman John Kline (R-Minn.) what his waiver requirements might be.

The root issue in this tiff is which branch of the federal government is empowered by the Constitution to write laws — Congress or the executive?

The answer, of course, is Congress, and this was intentional: Congress represents the people, whom the founders intended to be sovereign. Let the president rule through regulation, in stark contrast, and you have a political system edging towards a dictatorship, not the republic with checks and balances we are supposed to have.

Unfortunately, Congress has been complicit in this transfer of power, having for decades ceded the authority to make law to the executive branch. Through vaguely worded statutes that leave regulators to give laws meaning, and by granting huge discretion to cabinet secretaries, Congress has repeatedly sloughed off its legislative responsibilities to "get things done" and leave politically unpleasant

Thanks to "Closing the Door on Innovation," a manifesto released in May opposing uniform curricular standards for every public school, that's been the other big education question. The manifesto states, among many things, that current law prohibits Washington from supervising or controlling a school's "curriculum or any program of instruction."

This prohibition is in grave jeopardy thanks to ongoing efforts to have all states adopt "Common Core" curriculum standards, standards created by nonfederal organizations but advanced by Washington's "Race to the Top" funding contest. Further fueling fears of federal control are the Department of Education funding two curriculum-driving tests to go with the standards, and an administration "blueprint" for reauthorizing NCLB that has national standards as its backbone.

For the first time — and in contravention of existing law — the feds are on the verge of dictating exactly what children will learn.

Unfortunately, the questions at the center of the recent conflicts miss the fundamental legal reality which, if we didn't keep ignoring it, would avoid these debates — and the serious threats to the rule of law they deal with — completely. Among the very limited federal powers enumerated in the Constitution, there is nothing about education.

This most basic legal truth is intimately connected to the most basic of educational truths: All children have different dreams, talents and needs, and the distant, politicized federal government couldn't possibly meet all, or even most of them. Children need to have myriad, specialized educational options, not standard, government-issue schooling. They must have school choice, and educators need the freedom to offer new and different things.

Not coincidentally, that all kids are different devastates the argument for the Common Core standards, not just the unconstitutional means being used to advance them. It also explains why extant research shows no meaningful connection between countries having national standards and their academic performance.

Finally, it explains why advocates would rather adopt progress through coercion than free and open choice.

Much of the current bickering over federal involvement in education is informative, but it has ignored two, bedrock truths: Federal control is wholly unconstitutional, and wholly illogical.