Wednesday, September 18, 2013

Is Arne Duncan the De Facto United States School Superintendent?

When the NCLB waiver process began last year, I commented at a few conferences that Arne Duncan had become the School Superintendent of the United States of America, a position which he obviously had not been elected or appointed.  I offered this characterization of his new role not as a substantive critique of Duncan's policies, but as a legal scholar/contrarian questioning the exercise of power, regardless of whether that power was exercised benevolently or well.  To be clear, I have long favored the federalization of education in certain respects and have argued that the federal government should exercise far more control over states and districts in terms of equityschool finance, and integration.  All of those proposals, however, are predicated on existing or new legislation that gives the Department of Education the necessary power.

NCLB does not give Duncan the power he has exercised in the waiver process.  NCLB includes the short statement: "The Secretary may waive any statutory or regulatory requirement of this Act for a State educational agency, local educational agency, Indian tribe, or school through a local educational agency.” 20 U.S.C. § 7861 (2006).  Missing from this text is any mention of the Secretary placing conditions on waivers.  A logical argument can be made that conditional waivers are implied in this power in so far as conditions are necessary to or further eventual compliance with the Act.  For instance, the Secretary might waive a state's failure to meet NCLB standards in 2013 on the condition that a state reach compliance by the following year.  Or more heavy handily, the Secretary might condition a waiver on a state taking steps X, Y, and Z, which directly relate to the state's ability to reach compliance the following year.  In both instances, the conditions are embodied within the conditions and requirements that the Act had already placed on the state.  In other words, the conditions would not add not substance to NCLB.  To infer that the waiver power gave the Secretary broader power would be to infer that the waiver was intended as an independent and open ended policy making or judgment power for the Secretary.  If it were, it would be the equivalent of making the Superintendent of the United States School Districts.

The conditions that Arne Duncan placed on waivers have, in fact, gone beyond the obligations that already existed or were contemplated by NCLB.  As stated by the Office of the Secretary, last fall's waivers were granted around three large principles: 1) "Transitioning to college- and career-ready standards and assessments";  2) "Developing systems of differentiated recognition, accountability, and support"; and 3) "Evaluating teacher and principal effectiveness and supporting improvement."  On its face, the first is arguably consistent with NCLB's mandate that states set standards, but NCLB allowed states to set standards entirely on their own (a major flaw in the Act pointed out by Jim Ryan), whereas the waiver process is premised on the Secretary approving of and, thus, effectively setting state standards.  The second principle sounds more beauracratic than substantive and, thus, less troublesome (although it potentially shifts decision making from the state to the Secretary as well).  The third most obviously goes beyond NCLB.  NCLB required that states to put highly qualified teachers in every classroom, but left the definition of highly qualified to states.  The waiver is about teachers, but the similarity stops there.  This condition is clearly designed to create a new type of accountability--teacher accountability--which was not in NCLB. Moreover, the Department was very heavy handed in how teachers should be held accountable.

These conditions come on top of a series of competitive grant programs awarded during Obama's first term in which the Secretary had almost unlimited discretion in distributing billions of dollars to schools.  Those programs were generally shaped around the same principles as the waivers, except increasing charter schools was also part of the conditional package for the grants.  

All of that is simply background to this past two weeks' news regarding states' attempts to renew their waivers this fall.  If the foregoing does not impress you as the equivalent of Duncan as Superintendent, maybe states' yearly return to the Secretary to seek permission for their education policies does.  Moreover, this time around the Secretary is upping the ante and attaching even more strings and some states, like Arizona and California, are screaming foul.  Some of the new strings relate to an increased focus on at-risk kids.  In this respect, I would whole-heartedly support the substance of what the Secretary is hoping to achieve.  Nonetheless, the question remains: who elected him United States Superintendant?  For that matter, where is the United States School Board that is looking over his shoulder to keep him in check?  

To Duncan's defense, because Congress is not responsible enough to do its job, Duncan was left in a bind.  NCLB should have been reauthorized 4 or 5 years ago.  Without reauthorization or waivers, 80% of the nation's schools would have been in violation of NCLB last fall.  As a practical matter, he had to do something to move the ball forward.  As a legal matter, I am just not sure he could.

http://lawprofessors.typepad.com/education_law/2013/09/is-arne-duncan-the-de-facto-united-states-school-superintendent.html

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