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Obama’s Lawless Ed-Reform Push
His Education Department struggles to enforce its whims.

Education secretary Arne Duncan and President Obama

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Frederick M. Hess

The Obama administration has been remarkable in its casual disregard for statutes and the niceties of federalism. But even those quick to note this in terms of health care, immigration, or criminal justice have often regarded education as something of an administration bright spot. Last week provided another illustration of just how misguided such assessments are.

On Thursday, Secretary of Education Arne Duncan informed Washington State that he was revoking the waiver that had freed it from impossible-to-meet requirements of the No Child Left Behind Act (NCLB), including the quixotic mandate that 100 percent of students be proficient in reading and math. In return for the waiver, Washington had been required to implement a number of the administration’s preferred education initiatives — and, as Duncan noted in the letter yanking the waiver, the state’s legislature failed to pass one of the required laws, a measure tying teacher evaluations to student performance. Thus, Washington became the first state to lose its waiver.

This is a stunning misuse of executive discretion.

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In 2011, while announcing he would opt for this NCLB quid pro quo strategy in lieu of working to fix what Secretary Duncan had termed a “broken” law, Obama explained, “Congress hasn’t been able to do it, so I will.” Obama did in fact have the statutory authority to release states from the various ill-conceived provisions of NCLB. But he added a novel, troubling twist — he conditioned the waivers on states’ embracing his call for test-based teacher evaluation, particular school “turnaround” models, and the Common Core (or a facsimile).

While reasonable people can differ on the merits of this agenda, the issue here is reckless, unfettered executive power. Duncan has wielded NCLB waivers as a cudgel with which to compel states to embrace Obama-approved reforms. There is nothing in NCLB itself, for example, that empowers the federal government to dictate teacher-evaluation policies. (The closest approximation is an unfortunate provision, inserted at the behest of Democratic representative George Miller (Calif.), which mandated that all teachers be “high qualified.” This served to generate new stacks of paperwork while opening the door to lawsuits against Teach for America.)

Duncan could have tried to change the law. But in 2009 and 2010, when the Democrats had hefty majorities in the House and Senate, neither chamber even voted a revamped NCLB out of committee. Instead, Duncan and his team had a ball pursuing projects like Race to the Top, through which Congress had given him vast authority to do whatever he liked. Then, in 2011, 2012, or 2013, Duncan could have worked to pass a bipartisan bill. In fact, last summer, the House passed a smart NCLB reauthorization (the Student Success Act), which Duncan ignored.

After gutting NCLB by fiat, Duncan is struggling to enforce the whims he’s substituted for statute. The first time Washington refused to do as Duncan ordered, he nonetheless extended its waiver. This time he didn’t. Of course, it’s a certainty that every one of the 40-plus states with a waiver is currently in violation of at least some provisions. For instance, the states that have dropped the Common Core tests in recent months are now massively in violation of their waivers. Yet Duncan, skittish of doing further damage to the Common Core, appears to have no intention of punishing those states the way he’s punishing Washington.  

Even if you agree with Duncan that states should require school districts to use test scores when evaluating teachers, it’s useful to keep in mind that our system of government rests on the primacy of law and federalism for reasons both theoretical and practical. At least four deserve mention.

First, those cheering Duncan now might feel differently if Rand Paul’s secretary of education decided to suspend NCLB for states that offered school vouchers — or if Hillary Clinton’s did so for states that required all teachers to have an ed-school degree. The thing about ignoring federalism is that it’s only fun when you like the outcome.

Second, this kind of freelancing makes it increasingly tempting for the executive branch to bypass the legislative branch. This avoids the need to build support.

Third, the federal government doesn’t run schools. It can tell states to make schools do things, but it can’t make them do them well. That’s a general caution for those who would “reform” schools from Washington. This observation applies many times over when operating without legislative sanction.

And fourth, even when policies are good ideas in principle, they can be a train wreck in practice — and the odds of that increase dramatically when they’re pushed through without the broad support and solid carrots and sticks that only legislating can provide.

The Washington-waiver ploy is Obama’s Department of Education in a nutshell: make-it-up-as-you-go-along pursuit of desired ends, lack of legislative sanction, and sparse concern for precedent or unintended consequences, all in the vague hope that splendiferous results will justify the troubling means. One can sympathize with much of what Duncan’s trying to do and still find his waiver escapades a debacle whose destructive, regrettable legacy will long outlive his tenure.

— Frederick M. Hess is director of education-policy studies at the American Enterprise Institute.



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