Kgroleau's List: Assignment 2

• ” State leaders have cheered the president’s decision to offer them much-needed relief from onerous requirements
• exas governor Rick Perry, have blasted the move as overstepping executive authority. Is the president right to issue conditional waivers? Are the conditions themselves a good idea?
• But that is not the case in our time, and the Obama administration, confronted with a train wreck, has responded with an offer to waive the most onerous provisions of the law. The offer is conditioned, however, on the state governments’ acceptance of a set of “principles” put forth in a document titled “ESEA Flexibility.” Flexibility is the new watchword at the Department of Education (ED), though the administration promises that it implies no sacrifice of “accountability,” which has been the watchword for roughly two decades.
• It enjoys broad waiver authority under the law, and waiver provisions in federal law have repeatedly been upheld in court. On the other hand, nothing in the law authorizes it to craft new conditions—in effect, to attempt making law itself—even if the new conditions are not called law or rules or conditions or standards, but merely “principles.”
• And what strikes me in reviewing intergovernmental relations in education is that the federal government has had a very hard time getting the hang of it. It has wavered (that is not meant to be a pun) between administrative passivity, as with the Clinton administration’s prolific granting of waivers following the Improving America’s Schools Act (IASA, the 1994 version of the Elementary and Second Education Act), and the deeply intrusive, get-tough, and grant-no-waivers initial approach adopted by Congress and the Bush administration in 2001–02.
• In announcing the new plan to chief state school officers (CSSOs), Secretary Arne Duncan points out that 44 states and the District of Columbia have adopted the Common Core standards prepared under the auspices of the National Governors Association with financial support from the Gates Foundation.
• Six states, including Virginia and Texas, have yet to adopt the Common Core standards.
• Courts have been applying a “clear statement” rule for federal grant-in-aid conditions: a federal agency cannot withhold funds unless states have been told their obligations in plain language. If that were the test, the Department of Education would be heading into court with a weak hand.
• But waivers threaten to get out of hand, and to undermine the rule of law. What the Obama administration just did with education would be a mild case, in which waivers are combined with new requirements lacking a basis in law, but the more serious case is the Affordable Care Act, under which, without any warrant that I have been able to find in the law itself, the administration granted more than 1,400 waivers to labor unions and small businesses that were offering less insurance coverage than the law requires. If Mitt Romney is to be believed and is elected, he will abolish the whole law by waiver, as if a president has the right to do any such thing.
• Andy Rotherham: It is impossible to discuss the Obama administration’s waiver plan without also discussing and understanding the general political and governmental dysfunction plaguing Washington. The administration is proposing to use waivers to give states, school districts, and schools flexibility under the Elementary and Secondary Education Act, not because waivers are President Obama’s or Secretary of Education Arne Duncan’s favored way to make policy, but rather because they are the policymaking tool of last resort
• That’s why hardly anyone argues with Secretary Duncan’s decision to grant waivers as a way of modifying the policies. Congress tried—and failed—to overhaul the law in 2007, and current efforts to do so still seem a long shot. Yet revisions are long overdue, and the secretary of education’s authority to grant waivers is clearly spelled out in the law. Previous secretaries have issued a variety of waivers. The criticism of the secretary’s plan, which he and the president rolled out September 23 at the White House, stems from two issues: 1) the secretary’s strategy of making receipt of the waivers conditional on states agreeing to maintain or adopt a series of reforms, and 2) the effect of the waivers on efforts to hold schools accountable for results.
• Yet in September in its regular monthly survey, consulting firm Whiteboard Advisors asked a bipartisan group of policy and political insiders whether they thought Secretary Duncan’s waiver plan would be challenged in court, and 63 percent said yes. I am copublisher of that survey, and the figure reflects the substantial discontent on the political right and left with Secretary Duncan’s specific strategy in this case. On the left, groups like the United Farm Workers challenged the secretary’s authority to issue waivers that would curtail parental rights. Other special-interest groups felt the waivers should be unconditional and not predicated on any specific reforms or commitments. On the right, conservatives complained that the administration was not merely waiving aspects of the law but rewriting it unilaterally
• apoplectic
• Where Secretary Duncan’s waivers get complicated is the hodgepodge of laws, regulations, and initiatives that comprise federal education policy today, again because of congressional inaction. The federal goals of improving teacher evaluations, adopting college- and career-ready standards, and turning around low-performing schools trace their legislative provenance to congressional authorizations permitting the secretary of education to allocate federal funds based on priorities he determines rather than specific laws passed by Congress
• In spring 2011, the president visited a suburban school (with notable achievement gaps) to argue that without substantial changes more than 80 percent of the nation’s schools would not meet NCLB performance targets this year. In fact, the actual figures are much lower. But more to the point, given our dismal educational outcomes, why should we be surprised that an accountability system would find a lot of schools underperforming?
• The No Child Left Behind law changed the unit of analysis for educational performance and accountability from schools to students. What happens to students within schools, not only differences between schools, became the focal point. This was a major policy shift and reflected the obvious truth that different students can have very different educational experiences in the same school. Laying that reality bare discomfited comfortable suburban communities and upset the traditional education establishment. Complaints about “labeling” schools drowned out hard conversations about the reality of educational performance today.

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