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The Thomas B. Fordham Insitute, which claims to be a conservative think tank, has come out with this post that makes the case for declaring the conditional ESEA waivers granted by the U.S. Department of Education unconstitutional. They take issue with the conditions put on the waivers by Secretary Duncan. Mike Petrilli, the author, said, “He [Duncan] has the right to offer greater flexibility to the states when it comes to the law’s ‘adequate yearly progress’ measures and other parts of its accountability system.  What he has no constitutional right to do is dream up new mandates out of thin air and make flexibility contingent upon their embrace by supplicant states.” I will give credit where it is a due and congratulate Fordham for getting something right. There has been a gross overstepping of authority by the federal government in education and it is time for the states to stand up and call them out on it.

Petrilli points out that, not only has the department put conditions on the waivers, but spelled out exactly how the states will satisfy those conditions.

Let’s follow the example of the D.C. Circuit and examine the clear language of the applicable law. Section 9401 of ESEA plainly states that “the Secretary may waive any statutory or regulatory requirement of this Act” (with some noted exceptions). It says that states should describe, in their waiver requests, “How the waiving of…requirements will increase the quality of instruction for students and improve the academic achievement of students.” But it grants no authority for the Secretary to place conditions on those waivers.

Yet the Department’s waiver policy says that, in order to receive waivers, states “must submit a request that addresses each of the following four principles, consistent with the definitions and timelines described later in this document, to increase the quality of instruction for students and improve student academic achievement in the State and its [districts].” Note the sleight of hand. The law expects states to explain how waivers would “increase the quality of instruction” and “improve academic achievement.” The Department requires adherence to its preferred “principles” as the only routes to such improvement.

Further, the Department forces states to pledge allegiance to “each” (meaning all) of the four principles—even when these are not germane to the specific flexibility being requested.

Those of us in the trenches fighting common core have been saying for months that they are not just a set of standards, they are part of an initiative laid out in Race To The Top, ESEA waivers and the State Fiscal Stabilization Fund Grants requiring states to do certain things in certain ways. We have seen what the federal government has done to states like Washington which did not follow their instructions to the letter regarding teacher evaluations, so we have assumed that they will be equally inflexible when it comes to the standards, the tests and the other “assurances” from these grant programs. We recognize all of this for what it has always been – a foot in the door. Petrilli points out that the mere act of applying for a waiver put states under the control of the federal education department and opened the door for its creation of new laws and authority.

Let’s home in, in particular, on the teacher-evaluation requirement, as that’s the one that’s tripped up several states, including CaliforniaWashington, and, until recently, Illinois. ESEA says not one word about evaluating teachers. (Go ahead, search it yourself.) Some have argued that the legal basis for this mandate can be found in section 1111(a)(8), the so-called “equitable teacher distribution” requirement, which asks states to submit plans to the Secretary that describe “steps that the State educational agency will take to ensure that poor and minority children are not taught at higher rates than other children by inexperienced, unqualified, or out-of-field teachers, and the measures that the State educational agency will use to evaluate and publicly report the progress of the State educational agency with respect to such steps.”

Read that language again. Do you see any indication that Congress intended this as a requirement that states “develop, adopt, pilot, and implement, with the involvement of teachers and principals, teacher and principal evaluation and support systems,” as Duncan now mandates? There are legitimate policy reasons to look at teacher “effectiveness,” as opposed to the credentials mentioned by the law (such as experience or qualifications). But they aren’t contemplated by the law itself. They are simply not in the law. (This is the case for the “college- and career-ready standards” requirement, too.)

Petrilli has confidence that the courts could clear this up.

I am confident that some of the courts, at least, will ask Duncan to point to the “plain language” of ESEA that gives him the authority to mandate statewide teacher-evaluation systems, particularly for states that want waivers on school accountability.

I’m not sure I share his confidence at this point, although there have been signs of constitutional rationality in some courts lately. But the courts have had to step in where Congress has been remiss, and Congress is most definitely remiss in their duty to renew ESEA (or NLCB). That law expired in 2007 and we have been operating on autopilot ever since. Valerie Strauss at the Washington Post said this, ” Congress passes laws with the intent that they will expire after a certain period of time, most often five years. This is supposed to force Congress to update and/or fix a law, with some history of implementation to back it up. However, if Congress somehow doesn’t get around to taking a new look at a law, its authority doesn’t go away; it stays intact until a new law is passed. Thus after most people who pay attention to education issues have realized the law [NCLB]  is desperately flawed, it still is driving what goes on in schools, at least in those minority of states where the Obama administration hasn’t approved a waiver from the worst parts of NCLB.”

The waivers that states got to the onerous 100% proficiency requirements by September 2014 are due to expire in 30 days. Some states have applied for the new extended waivers that go through 2015, hoping that in another year Congress will finally do its job. That is a mighty high expectation. It doesn’t look like Washington is in any hurry to fix NCLB. They are gridlocked over which direction to take education reform. The Administration has their Blueprint for ESEA Reauthorization which is a sweeping proposal that focuses on accountability and teacher evaluations. The House passed five smaller bills that took sections of the Blueprint individually and the Senate  Health, Education, Labor, and Pensions (HELP) Committee passed its version of ESEA reauthorization which incorporated many aspects of the administration’s Blueprint. The stumbling block seems to be the White House which really wants accountability and teacher evaluation and is showing little interest in either the House or Senate bills. At this rate we will be looking an endless future of waivers so someone is going to have to figure out exactly how that process is going to work and who is in charge.

Petrilli’s argument focuses on the purpose of the waivers, which currently address the accountability portion of ESEA. The Department has forced  states to agree to all four principles laid out in the waiver application even when all the principles are not addressed in the specific flexibility being requested.

  1. College- and Career-Ready Expectations for All Students
  2. State-Developed Differentiated Recognition, Accountability, and Support
  3. Supporting Effective Instruction and Leadership (i.e., teacher and principal evaluation)
  4. Reducing Duplication and Unnecessary Burden

To be sure, numbers two and four are legitimate exercises in flexibility, because they relate directly to ESEA’s accountability and reporting requirements. But numbers one and three have no basis in the law at all.

So Fordham is on record saying that there is no basis in ESEA for requiring states to adopt college and career ready standards. Thank you. Can states do so voluntarily? Absolutely, and Missouri did with SB389 back in 2007. We have no reason to agree to do so in exchange for a federal waiver. And we certainly have no reason to adopt common untried standards that Fordham only rated a B+ when we could adopt other state standards which are rated much higher.  That is unless of course the goal is not so much the college and career ready part of the standards as it is the commonness which facilitates data collection which the federal government clearly wants under the guise of accountability. See how this all fits together?

I am no proponent of legislating from the bench, but perhaps Fordham has it right that the federal courts will have to weigh in on whether the waivers are constitutional or not. The line needs to be drawn somewhere delineating how much control and leeway the Department of Education has. The only other option is for every state to refuse another waiver. Perhaps when all 50 states are out of compliance with the law, DC will finally have the embarrassing motivation to fix their mistake.

Everyone agrees that NCLB is a hot mess. Unfortunately it was created according to the legislative process and represents the best that can be done in Washington. Does that not make the perfect case for DC staying out of education all together?


Anne Gassel

Anne has been writing on MEW since 2012 and has been a citizen lobbyist on Common Core since 2013. Some day she would like to see a national Hippocratic oath for educators “I will remember that there is an art to teaching as well as science, and that warmth, sympathy and understanding are sometimes more important than policy or what the data say. My first priority is to do no harm to the children entrusted to my temporary care.”

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