Why Obama’s New Plan to Reform Education Is Likely Illegal

by Simon van Zuylen-Wood | August 10, 2011

Faced with a looming deadline and a deadlocked legislature, Barack Obama is employing a strategy many wish he had in the recent debt ceiling talks: He’s bypassing Congress altogether. On Monday, Obama approved a Department of Education plan to grant waivers allowing states to bypass the most stringent and unrealistic requirements of the Bush-era education law known as No Child Left Behind, including its fairy-tale provision that all schools must be 100 percent proficient in reading and math by 2014, in exchange for the adoption of certain policy priorities. Owing to the fact that Republicans have vowed to block any comprehensive reform* of NCLB this summer, the administration’s plan to grant waivers is a valuable and timely stop-gap solution to prevent schools from needlessly being labeled as “failing.” The one problem, however, is that it probably isn’t legal.

To be sure, the simple practice of granting waivers to help states skirt NCLB’s worst features isn’t new or illegal. The Department of Education’s authority to do so was written into the Elementary and Secondary Education Act in 1965 and, as recently as 2009, the department granted 351 waivers to states seeking leniency on federal requirements, many of them related to NCLB. Instead, the issue at stake lies in what Secretary of Education Arne Duncan plans to demand in return for said waivers. By mandating that only those states that commit to specific reforms (we don’t find out what they are until September) will be entitled to receive the flexibility provided by waivers, the administration is attempting to overhaul NCLB behind Congress’s back. In other words, instead of waiting for Congress to change the way teachers are evaluated or schools are punished, Duncan is hoping to do it himself by forcing the states’ hands. As education policy expert Tom Loveless of the Brookings Institution puts it, “If states embrace the Obama education reform agenda, they get a waiver.” If they don’t, tough luck.

The administration’s decision represents an ingenious, and, according to Loveless, “unprecedented” way to get around a federal law. Jack Jennings, President of the Center on Education Policy and longtime House Committee on Education and Labor staffer, says though it “may be the right thing to do,” there’s a good chance Duncan and Obama are “overstepping their authority.” American Enterprise Institute education scholar Rick Hess goes even further, calling the plan unconstitutional and likening it to a future Republican president letting states opt out of the Affordable Health Care Act—but only on his terms.

But, if the Obama administration is breaking the rules, who’s going to punish them? Democrats, for one, are likely to let this slide—the waivers will probably be closely aligned with President Obama’s NCLB reauthorization “Blueprint for Reform,” and they will save schools from both the ignominy of being labeled failures and the possibility of facing harsh penalties for not meeting arbitrary “Adequate Yearly Progress” benchmarks. Even though, earlier this summer, Democrats George Miller and Tom Harkin, the House and Senate education committee leaders, opposed the waiver idea, on Monday they performed an about face and endorsed it.

Republicans, on the other hand, will likely challenge the move. Indeed, House education committee leader John Kline already has—not so much on the grounds that he disagrees with the administration’s ideas, but rather with its methods. After all, Republicans haven't introduced a comprehensive* re-authorization plan of their own, and party moderates share common ground with Duncan on issues like charter schools and teacher accountability measures, among other reforms. It’s also worth noting, says Jennings, that, since the 1970s, it’s largely been Republicans who have pushed for waivers to ease the burden of federal education guidelines.

According to congressional expert Norman Ornstein of AEI, Republicans have four tools at their disposal to combat the plan. First, they could block the Department of Education’s appropriations funding when it comes up for a vote this October. But, given the consequences—tens of thousands of shuttered schools and laid-off teachers—they probably won’t resort to this measure. Second, they could block Obama’s appointments, in the Department of Education or elsewhere, just to make their displeasure known. Third, they could berate Duncan and the Obama administration with lengthy hearings on the plan’s constitutionality. None of these measures, however, would do anything to actually block the waivers. For that, a state would have to sue the Department of Education, claiming it deserved a waiver but didn’t want to participate in Duncan’s reforms. At that point, we’re in uncharted territory, and, according to Ornstein, the courts may back off as a result. “In what sounds like a very fuzzy question of whether this is within or outside the boundaries of the law, courts tend not to try and get involved in that,” Ornstein told me.

Whether Republicans choose to make a serious show of jeopardizing the administration’s waivers—which, at this point, represent the most realistic way of fixing NCLB before the 2012 elections—remains to be seen. But there’s a good chance they will—not only because many of them see it as a bad idea for education reform, but also because it fits nicely into their ready-made narrative about the Obama administration’s dangerous and unconstitutional use of executive power.

Simon van Zuylen-Wood is a reporter-researcher at The New Republic.

*UPDATE: I originally wrote that Republicans have vowed to block any plan to reform NCLB this summer, nor do they have a plan of their own. In fact, Republican Representative John Kline has passed three small bills—designed, respectively, to cut education funding, expand charter schools, and increase local control of federal education spending—out of his House Committee on Education and the Workforce. Still, these bills do not amount to a comprehensive approach to reforming No Child Left Behind.

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