If the Constitution is silent on something, that something devolves to the individual states. The Constitution is silent on education. Therefore, No Child Left Behind and the proposals in Tommy and Roy's spanking new 800 pound cousin, Beyond NCLB are unconstitutional? Not quite. The game is Let's Make a Deal.
It's sort of a reverse shakedown. We, the feds, have this pile of money. You want some? Here's the deal. If you take the money, you play by our rules. Hence, there has been no serious constitutional challenge to NCLB (there could have been, but states are up against a regime that rules by intimidation and retribution--ask Joe Wilson. To be constitutional, agreements between the states and the federal government must be voluntary and clear. That is, the states cannot be coerced and they have to know what they are getting into. There is substantial question about the coercive nature of NCLB and clearly states were in the dark. No one with the possible exception of Sandy Kress knew what they were getting into with the 1100 page law).
I wrote my first anti-NCLB article under commission from New York's Newsday in January, 2001. At the time, it was only a plan, not yet even a bill. I saw it as another cynically Orwellian-named program to do the opposite of what its name implied--Clear Skies, Clean Waters, Healthy Forests and, now, NCLB.
It would transfer huge sums of taxpayer money to the private sector. Private schools (especially the student-hemorrhaging Catholic schools) would benefit greatly when the voucher provisions kicked in. Private companies stood poised to clean up as they took over public schools. The president of Harcourt Brace Jovanovich actually said "This looks a lot like our business plan." Shifting so much of education to control by private firms would weaken or--hope of hopes!--destroy two large Democratic power bases, the teachers unions.
Bush compromised on vouchers in order to get bi-partisan support. To get Kennedy and Miller and others on board, he settled instead for Supplemental Educational Services which delivers only $2 billion a year to private coffers. But he keeps bringing on the voucher proposals, first for a dozen cities (rejected), then for DC only (rejected four times and accepted only when Bush operatives tied it to an omnibus spending bill, that, had the Democrats rejected it, would have shut down the government), then for Katrina victims (done), and now again in his latest budget.
In my first blog for the Huffington Post, I summarized a conference put together by previous supporters of NCLB, now disillusioned, who now concluded that it did not work, could not work ("Things Fall Apart: NCLB Self-Destructs"). Yet here they come, ex-govs Tommy Thompson and Roy Barnes, with a 231 page report that describes a gargantuan expansion of what isn't working.
The states sought flexibility; Tommy and Roy strait jacketed them. Checker Finn and Mike Petrilli of the Fordham Foundation noticed that the report's recommendations used the word "require" at least 35 times, often followed by "states." I searched with Adobe Reader and found that the words require, requires, required, or requirement(s) occur 452 times between pages 11 and 220. Finn and Petrilli found only six occurrences of "allow" and "permit" (nationalreviewonline.com).
Commissioners, who is going to do all this stuff? The Things Fall Apart conference found the states already woefully understaffed to deal with NCLB now. In addition, the testing industry has proven itself incapable of getting data back to states and schools in a timely manner yet you ask for a 12th grade test plus tests in science in various grades (under the recommendations, calculations of AYP would include science scores).
One interesting tidbit: The Commission recommends the development of national standards and national tests in reading, mathematics and science. The states would then have the option to adopt the national tests, build their own tests around the national standards, or keep their existing tests. This unexpected flexibility is clearly designed to keep ETS and CTB-McGraw Hill and the other testing companies--the largest unregulated industry in the country--from unleashing their lobbyists to kill any legislation that would produce a single national test.
One friend who testified before the Commission wrote that she'd "characterize their questions as 'Yes...Buts.' 'Yes, we understand the HQT requirements are tough, but don't you want to have highly qualified teachers?"' I left the session with the impression that they really didn't want to hear our concerns and that our testimony was beside the point."