A law meant to curb federal power is being used to expand it. Congress must strike it down.
In December 2015, Congress passed the Every Student Succeeds Act, dubbed the “largest devolution of federal control to the states in a quarter-century” by the Wall Street Journal. Republicans and Democrats alike had grown frustrated with the Obama Department of Education’s operating like a national school board, dictating everything from teacher evaluation to school-turnaround strategies. Massive bipartisan majorities passed ESSA with an eye to returning Washington to a more modest and appropriate role.
But before the ink on the law was even dry, Arne Duncan, Obama’s secretary of education, mocked the will of Congress, boasting that it would be easy to get around the law’s restrictions: “We have every ability to implement, to regulate the law. . . . Our lawyers are much smarter than many of the folks who were working on this bill.” Obama’s clever lawyers proceeded to do all they could to soften or undo key sections of the law meant to curb Washington’s reach.
Last month, however, the House voted to use the Congressional Review Act to overturn the Obama regulations on ESSA school accountability. The Senate now has until May to pass the legislation (it requires only a simple majority) and send it to the president’s desk. This may sound like dull, arcane stuff, but it isn’t. The question before the Senate is whether to reassert the role of Congress vis-à-vis Department of Education bureaucrats and whether to ensure, as far as possible, that school accountability is primarily the province of state and local leaders.
Obama’s appointees sought to reshape ESSA more to their liking, trampling on the act’s explicit intent. Their new regulations ordered states to establish a single statewide definition of “ineffective teacher” (thus requiring states to adopt one-size-fits-all evaluation systems like those the Obama team had long championed). Contrary to the plain language of the statute, the new rules restricted how states could measure “school quality,” gauge “student success,” or steer improvement funds to schools. ESSA encouraged states to experiment with broader measures for school accountability; the regulations insisted that anything other than test scores would be an afterthought.
Now Obama partisans are trying to sell Senate Republicans on the idea that the regulations in question actually make the law more “flexible.” Former Obama staffer Anne Hyslop recently published a list of supposedly helpful regulations and declared that scrapping them would lead to “chaos.” If that line sounds familiar, it should: Insisting that schools would be lost if federal bureaucrats didn’t tell them what to do was standard fare under Obama.
Hyslop even lists 40 “clarifications” and “flexibilities” that she thinks Republicans should love. Her examples are illuminating, though perhaps in ways she didn’t intend. For instance, she insists that the regulations “clarify” that “states must identify low-graduation-rate high schools using the four-year adjusted cohort rate.” The problem? The law itself is silent on this question, precisely so that states can decide whether to use that figure or the “extended year adjusted cohort” rate (which allows schools to get credit for summer graduates).
Similarly, she argues that the regulations “clarify” that states need to develop their ESSA plans “by conducting meaningful stakeholder engagement with a broad array of groups.” The problem here is exactly what it sounds like: The regulations upsize an expansive laundry list of obligatory consultations and sketch burdensome bureaucratic processes for performing what should be a commonsense task.
Hyslop says the regulations helpfully “clarify” reporting requirements on charter-school authorizers (the bodies that approve and oversee charter schools). Not only do the regulations impose new and unauthorized burdens that are found nowhere in the law, but the reporting requirements seem calculated — by happenstance or design — to yield misleading comparisons between charter schools and traditional district schools.
What Hyslop describes as “clarifications” would be viewed by most as additional requirements (granted, federal officials may have trouble distinguishing the one from the other). And keep in mind: These examples were hand-picked from the law’s raft of “clarifications” as those she considered most likely to win Republican support.
What Hyslop describes as ‘clarifications’ would be viewed by most as additional requirements (granted, federal officials may have trouble distinguishing the one from the other).
As for the supposed “flexibilities,” Hyslop notes that the rules gave states permission to use a hyperlink to provide parents “with a full description of their school accountability system on district and school report cards.” But states would be quite able to do this, and to exercise the 19 other supposed “flexibilities,” without any federal regulation at all. Secretary of Education Betsy DeVos can simply issue nonbinding guidance telling states, for instance, that they are free to use such hyperlinks.
The notion that the states need new federal rules allowing them to be free has found some surprising disciples. Brandon Wright, of the avowedly right-leaning Fordham Institute education think tank, opined in RealClearEducation that state officials “have understandably come to expect (and perhaps to welcome) being told what to do by Washington,” and he argued that “state policymakers crave and perhaps deserve the clarity and certitude of formal rules.”
This is a disturbing vision of how America should work. Our nation was founded on the notion that the people were fit to govern themselves. If we agree that state officials have become this weak-kneed and compliance-minded when it comes to schooling, the need for a bold reset is all the more urgent.
When he toured America, Alexis de Tocqueville was struck by the initiative and creativity of our citizens in banding together to take care of public affairs. He contrasted these citizens with the subjects of feudal France, who, rather than solve their own problems, would wait passively for orders from on high. Sadly, the 21st century has witnessed a feudalization of American education and created a generation of education leaders used to asking federal officials what they may do.
And yet, Mike Petrilli, a former Bush administration education official and president of the Fordham Institute, has called on Senate Republicans to “Save the regs! (At least some of them),” arguing that Secretary DeVos can then retain the “good” regulations and find a way to dispatch with all of the “bad” ones. While there’s something quaint about the plea, the prescription is as unrealistic as it is misguided. Absent Senate action, DeVos would have to initiate a whole new rule-making process, during which proposed changes would be blasted daily by the same organizations and media outlets that have labeled her an enemy of public education. Like most efforts to unwind regulation, the push would expire of a thousand paper cuts.
With ESSA, Congress expressly sought to end an era in which states were expected to look to Washington for answers, rightly judging that compliance and bureaucracy are antithetical to the autonomy, judgment, and initiative that fuel great schools.
Will the Senate insist on seeing that promise through? Here’s hoping it does.