As students head back to school, the Obama administration is using executive power in an unprecedented move to circumvent a congressional standstill on No Child Left Behind, arguing that the federal education law thwarts states' distinct policymaking abilities.
On Monday, the Obama administration said it would use waivers to provide regulatory relief to states, confirming an earlier plan that U.S. Secretary of Education Arne Duncan first mentioned in June in light of what he called a "slow-motion train wreck" created by the law.
"Today it's forcing districts into one-size-fits-all solutions that simply don’t work," Duncan said on Monday.
Congress has failed to reauthorize NCLB since 2007. As the decade-old law faces criticism for driving states to narrow their curricula, painting many schools as "failing" in broad terms that don’t measure growth and, in Duncan's words, causing a "dummying down" of standards, the administration will unilaterally provide relief in the form of waivers from some of the law’s mandates in exchange for having the states agree to take on certain yet-to-be-specified reforms.
According to Duncan, the law has encouraged states to lower their standards. For example, he said, congressional inaction allowed a state like Tennessee to delude itself into deeming 91 percent of its students as proficient in math. By applying higher standards, Duncan said, the state "raised the bar," and coped with the reality that only 34 percent of students were actually proficient by "college ready" standards. "In the meantime, states and districts will still have the opportunity to move forward," Duncan said.
States will be able to override NCLB requirements such as the mandate for 100 percent proficiency by 2014 and making the measure of "adequate yearly progress" by raw performance instead of growth, instead creating their own accountability systems with higher standards.
Jack Jennings, president of the Center on Education Policy, told The Huffington Post that he expects the “vast majority of states” to apply for waivers. Duncan and Melody Barnes, director of the Domestic Policy Council at the White House, said they are encouraging all states to apply for waivers in exchange for reforms.
If Jennings' prediction is accurate, the waiver plan could result in as many as 50 ways to measure student performance -- potentially introducing a mishmash of experimental accountability systems with little coherence.
"This is how welfare reform came to be: states were given waivers," said Cecilia Rouse, Katzman-Ernst Professor in the Economics of Education at Princeton University and a former member of the Council of Economic Advisers. "We didn’t see a fifty-state chaotic system, but states taking innovative ways to try to address welfare reform. When it came into play, the government benefited from what states did, they were able to learn from the experiments the states did."
But despite Duncan’s and the White House’s trumpeting of the measure, he has yet to specify what, exactly, the reforms required in exchange for waivers will be, beyond his statement that criteria would reflect "similar goals" as the Obama NCLB blueprint, which stresses data usage, college standards, accountability and teacher quality. Administration officials say more details will be made available in September.
Since Duncan first floated his waiver proposal in June, he has faced opposition from members of Congress such as Rep. John Kline (R-Minn.) and Sen. Tom Harkin (D-Iowa), who chafed at Duncan’s characterization of the legislative standstill. Kline commissioned a report from the Congressional Research Service that questioned Duncan's legal authority to override federal law.
But congressional ire toward Duncan and his fix, at least from the Democratic side of the aisel, seems to have died down with the admission that Washington's current partisan atmosphere makes an NCLB overhaul look notably unlikely.
“I understand why Secretary Duncan and President Obama feel they need to take action -- the timing, coupled with recent disappointing policy actions by Republicans, make it very difficult to see how we can get a bipartisan Elementary and Secondary Education Act this Congress," Rep. George Miller (D-Calif.), senior Democrat on the Education and the Workforce Committee, said in a statement. "We need comprehensive action on accountability and policies that modernize our system.”
After previously calling the waivers premature, Harkin said that, while he is still committed to a congressional act to revamp NCLB, the plan provides states with necessary flexibility. "Given the ill-advised and partisan bills that the House majority has chosen to move, I understand Secretary Duncan’s decision to proceed with a waiver package to provide some interim relief while Congress finishes its work," Harkin said in a statement.
But Republicans are still holding Duncan's feet to the fire, saying the measure only fuels congressional hostilities. Earlier this summer, Kline had a tense back-and-forth with Duncan, and was unsatisfied that his request for more information on the waiver package yielded few specifics. "I remain concerned that temporary measures instituted by the department, such as conditional waivers, could undermine the committee's efforts to reauthorize the Elementary and Secondary Education Act," Kline said in a statement. "I will be monitoring the secretary's actions closely to ensure they are consistent with the law and congressional intent."
But Duncan claims that his waiver plan is bipartisan -- because not one governor he spoke to while vetting the plan, he said, turned it down. In fact, NCLB has gotten so restrictive that some states have already sidestepped some of its requirements, with or without waivers.
In Montana, superintendent Denise Juneau froze performance targets for three years in a row, defying the letter of the law. But since she didn’t ask for a waiver in advance, the Education Department said it could condition her state's federal education funding.
Meanwhile, Tom Luna, superintendent of Idaho's schools, received permission -- though not a technical waiver -- for freezing his proficiency targets. "NCLB has become a stumbling block to future progress," Luna told HuffPost on Monday. Idaho's new accountability system, he said, would measure growth, "and not just whether they can pass a test or not."