The New ‘No Child’: Control By A Thousand Vetoes?

Neal McCluskey Director, Cato Institute's Center for Educational Freedom
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It is probably safe to say that very few people like the No Child Left Behind Act. It has delivered far too much micromanagement, far too little academic improvement, and has opened the door to direct control of education by the Obama administration. This week the full Senate and House – the latter passed its bill Wednesday of last week, 218 to 213 – took up measures that would end both NCLB and, as education committee chair Lamar Alexander (R-TN) has put it, the “national schoolboard” that Washington has become.

Or would they? Not if key provisions are exploited much as the Obama administration has seized power through current law.

NCLB, with its constricting framework of “adequate yearly progress” on standardized tests; cascading sanctions – and labels – for schools that miss these goal posts; and well-intentioned but pie-in-the-sky goal of 100 percent “proficiency” by 2014, has been despised for years by groups ranging from libertarians opposed to any federal direction over education, to teachers unions whose members can’t stand bureaucratic control and labeling of their schools.

The law has also been an educational failure. Not only is the country not even in the same ballpark as 100 percent proficiency, examining long-term scores for traditionally underserved groups shows more progress was often made before NCLB than under it. And what improvements we did see are hard to confidently attribute to the law.

But if NCLB is so bad, why has it taken so long to “repeal and replace,” to borrow a phrase? The answer is that while no one seems to like it, everyone has a different take on what should be done.

Some want the federal government – and federal taxpayer money – out of education almost entirely, constitutionally the most pure view and one that makes the most sense given decades of skyrocketing funding and flat achievement. Others would largely keep the dollar spigot flowing, but want the money to be block granted to states with few strings attached. And some want mandated standards, tests, and sanctions to keep going, but with better measures than NCLB’s blunt progress metric of, for instance, whether this year’s fifth graders scored better than last year’s.

The vacuum created by polarization opened the political door for the Obama administration to take control of the system. Even though NCLB only gives the executive branch authority to issue waivers from the law, not attach conditions to those waivers, starting in 2012 the administration began issuing waivers out of onerous NCLB stipulations  — especially the 2014 full-proficiency wall into which NCLB was going to barrel — but only if states agreed to administration terms. Most controversial were tying teacher evaluations to student test scores, and requiring that states either adopt the Common Core national curriculum standards – already de facto required to compete for Race to the Top funds – or have a state university system certify standards as “college- and career-ready.”

By killing the 2014 deadline the waivers took significant pressure off of Congress to reauthorize NCLB. But growing outrage over the Common Core and its companion, federally mandated testing, eventually got the teapot screaming again, and both the House and Senate legislation reflect a mood hostile to federal micromanagement. Both bills would end adequate yearly progress, the cascade of punishments for not meeting it, and forbid the Secretary of Education from directly requiring the use of Common Core or other specific standards.

But here is where a major note of caution is due. While both bills prohibit the Secretary from dictating the use of specific standards, tests, etc., both empower him to veto state plans for which he determines, in the words of the Senate bill, that there is “substantial evidence that clearly demonstrates that such state plans” won’t improve achievement. There’s no definition of “substantial” or ”clearly demonstrates,” so it seems that while the act would prohibit the Secretary from overtly specifying what he wants in state plans, it would let him keep vetoing plans until he gets what he wants. And it would be simple to communicate what those things are – wink, wink – in speeches, off-the-record conversations, etc.

Pulling down the suffocating NCLB scaffolding erected around American education is a move in the right direction, but exchanging it for stealthy executive control would only make matters worse. At the very least, secretarial veto provisions in the reauthorization bills should give everyone serious pause.

Neal McCluskey is the Director of the Cato Institute’s Center for Educational Freedom