Are NCLB Waivers Legal?

By 10/11/2011

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Congress is way behind on reauthorizing the basic federal aid to K-12 education law.  This law, now known as the No Child Left Behind Act (NCLB), should have been dealt with in 2007, but Congress has kept funding it, without reauthorizing it.

If Republicans take the White House and the U.S. Senate, what is or is not the law may be changed in a way that moves the federal role in education in a direction that is conservative or libertarian. With an alternative election outcome, the law may move in a more liberal direction. But right now the law is what it is.

Under the Constitution, current officials of the Executive branch – such as U.S. Secretary of Education Arne Duncan – are obligated to carry out the law as written. But, instead, Secretary Duncan plans to get rid of the law’s accountability measures, while substituting the Obama administration’s pet education reforms.

This would usurp the role of Congress.  In the American political system, Congress makes the law, and the Executive branch carries it out. Here we have the U.S. Department of Education, a part of the Executive branch, saying that — to receive waivers from NCLB sanctions — the states must agree to conditions set by the Department. Yet these conditions are found nowhere in NCLB. In truth, the Executive is seeking to make law. Imposing such conditions has never been approved by Congress, and the federal waiver law does not permit it.

In addition, some of the substantive policy changes that Obama administration wants to put in place, through the conditional waivers, are in the area of a national curriculum.  Yet three federal statutes prohibit the Education Department from making policy on curriculum.

NCLB sanctions are kicking in because states have not brought enough children to grade level.  But as more and more schools face sanctions, the states are having trouble supervising school improvement.

All sides agree that the machinery of NCLB has gotten old, and problems have arisen.  But in the name of addressing these problems, Obama administration officials have arrogated to themselves the authority to rewrite the law. It is wrong for them to use waivers as a means to force states to adopt substantive policies that aren’t in the text of NCLB. For example, as one condition for receiving a waiver, the Obama administration would require every state to adhere to the national curriculum standards or some federally-approved equivalent.

I interviewed Sandy Kress to see if there was a better way to fix NCLB’s old machinery – by modifying administrative procedures rather than by illegitimately imposing policies that the Obama administration happens to like.  Kress is the Texas attorney who was the chief White House negotiator during the writing of the NCLB Act.

The goal in talking with Kress was to see if NCLB could be fixed for a few years with process changes, while Congress works on policy changes.  We wanted to think, as much as possible, in terms of administrative flexibility and stay out, as much as possible, of the substantive policy realm.

Kress suggested modifications in carrying out the law in three areas: (1) timetables; (2) student proficiency; and (3) consequences.

As to timetables, the 2001 law expects all states to have children on grade level by the end of the 2013-14 school-year.  Kress suggests considering a past precedent. Education Secretary Rod Paige let Texas and Secretary Margaret Spellings let New Jersey, which had adopted more rigorous state standards in 2003 and 2008 respectively, have a “softer trajectory” to meet those standards.  Thus, Kress suggests that if a state adopts more rigorous content and performance standards, that state would get a softer trajectory (and hence more time).  This would also serve as an incentive to states to adopt higher standards.

Concerning student proficiency, Kress says that the Education Department could “hold harmless” schools that bring 85 percent, for example, of students in every subgroup to grade level.  The Department would not be nullifying the goal of 100 percent of students at grade level.  But “no consequences would flow” if a school brought at least 85 percent in all subgroups to proficiency.

Kress notes that if standards are raised, a change in the expected percentage of students who are proficient (that is, at grade level) is still “approximately consistent” with the goal (set in 2001) of bringing students by 2014 to proficiency on the content and performance expectations that were in place in 2001.

Turning, finally, to consequences, Kress wants to divide the schools-in-trouble into three groups (low, middle, and high), with “differentiated consequences” for each.

The low group could be defined by sub-basement scores on achievement tests and wide gaps between groups on achievement-test results.  These schools would be subject to improvement measures outlined in the Obama administration’s NCLB reauthorization blueprint that would require them to make “faster and deeper” changes than current rules propose.  Kress would retain two escape valves and pressure points that are currently in the law, but that the Obama administration wants to take out: private tutoring services and parental choice.

The middle group could be defined by schools’ failure to meet the law’s achievement goals three years in a row.  Schools in this middle group, Kress suggests, would be subject to current rules on sanctions.

The high group could be defined by those schools not in the low and middle groups.  For example, these schools may have scattered years of not meeting performance goals. They may have some areas of strong performance together with areas of weak performance.  They may have barely missed performance goals.  Or they may have missed performance goals two years in a row, but not otherwise.

Kress suggests that these schools would have “extensive flexibility” on making school improvements.  They would still be “in need of improvement,” and the states and districts would still be expected to assign federal funds to help students in these schools succeed.  But this endeavor would not be subject to federal rules on making school improvement.  These schools would be “quite close” to “total deregulation” in terms of having to follow federal rules on improvement, but they would, of course, be subject to state policy and guidance on improvement.

Why should parents and community members care about what interim measures are in place before Congress revisits NCLB? Why should all Americans care about the Obama administration’s waiver policy versus more minimal procedural changes? There are two reasons:

The first is practical.  President George W. Bush pointed out in his memoirs that federal-aid-to-education spending over the decades had not been improving the education of children from less-educated households. President Bush wrote that this was why in 2001 he pushed for NCLB’s accountability-through-testing as a performance audit of the spending of federal taxpayers’ dollars.

If we throw away accountability (in exchange for the Obama administration’s favorite programs), it may be difficult to get accountability back.  The history of public-education policy has been decades of state and local superintendents talking all about reform programs – without accountability.

The second reason is a matter of principle. Under the American constitutional system, officials of the Executive branch should carry out the current law as it is, not engage in back-door legislating through conditional waivers.

A better way is minimal modification of administrative processes. For U.S. Department of Education officials instead to make new law themselves, is arrogant, usurpatious, and illegal.

-Bill Evers

This article originally appeared in the Orange County Register, Santa Ana, California.

Comment on this article
  • Anne Clark says:

    “For example, as one condition for receiving a waiver, the Obama administration would require every state to adhere to the national curriculum standards or some federally-approved equivalent.”

    “Thus, Kress suggests that if a state adopts more rigorous content and performance standards, that state would get a softer trajectory (and hence more time). This would also serve as an incentive to states to adopt higher standards.”

    The difference? “federally-approved equivalent” and “more rigorous content and performance standards” are the same thing. A state goes to Washington and gets the nod that their standards are rigorous. You’re really splitting hairs.

  • Sandy Kress says:

    Let me clarify my recommendation. There’s a significant difference between what I proposed and the position of the Administration.

    If a state wants to lift its performance standards by, for example, making it harder to pass tougher assessments, that state will likely have data from field test results that will show the extent to which the higher bar will reduce passing rates in the short term.

    NCLB never intended that states that want to raise standards in this manner should be discouraged from doing so.

    My recommendation simply was to maintain a level playing field by giving the states the flexibility to raise standards without fear of being penalized.

    I didn’t suggest, nor do I support, federal discretion over the standards. I do support accountability, however, and expect a fair administration of NCLB to allow adjustments based on a reasonable response to changes in state policies.

  • Sandy Kress says:

    Let me make one more comment. Perhaps we’ll make some big news with it right here on EducationNext!

    The President and Secretary Duncan have complained loudly since taking office that NCLB forced a dummying down of standards by the states. I don’t think the data show that to be generally true.

    BUT, let’s assume I’m wrong and that the AYP regime did deter states from raising their performance standards. All the good Secretary had to do to fix that problem was to implement my proposal.

    Here’s another piece of news: at least two states used this strategy in the early days to level the playing field. One wonders why others didn’t. Hmmm.

  • […] Obama administration’s No Child waiver gambit does. As Hoover Institution scholar Bill Evers argued last month in Education Next: “Imposing such conditions has never been approved by Congress, and the […]

  • […] of the program, some Republicans have criticized President Obama’s waiver program as a breech of executive authority. But New America’s Jennifer Cohen points out, the waivers wouldn’t exist if Congress had […]

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