Monday, December 9, 2013
Notwithstanding my railings on the current use of the NCLB waiver process and my suggestion that some waiver conditions are outside the scope of legislative authority, the issue remains complex and the opposing view worth considering. Earlier this year, David Barron and Todd Rakoff published In Defense of Big Waiver, 113 Columbia L. Rev. 265 (2013), which focuses on the constitutionality and virtues of the administrative waivers available under No Child Left Behind and the Affordable Care Act. The main thrust of the article is that, given the complexity of today's statutory and administrative state, the administrative waiver is nearly a necessity and something that works to both Congress and the Executive's advantage. Among other things, it helps Congress adapt laws to unforeseen circumstances and improves the political accountability of the executive branch. The abstract explains:
This Article examines the basic structure and theory of big waiver, its operation in various regulatory contexts, and its constitutional and policy implications. While delegation by Congress of the power to unmake the law it makes raises concerns, we conclude the emergence of big waiver represents a salutary development. By allowing Congress to take ownership of a detailed statutory regime--even one it knows may be waived--big waiver allows Congress to codify policy preferences it might otherwise be unwilling to enact. Furthermore, by enabling Congress to stipulate a baseline against which agencies' subsequent actions are measured, big waiver offers a sorely needed means by which Congress and the executive branch may overcome gridlock. And finally, in a world laden with federal statutes, big waiver provides Congress a valuable tool for freeing the exercise of new delegations of authority from prior constraints and updating legislative frameworks that have grown stale. We welcome this new phase of the administrative process.
The key question, however, is not whether the waiver is good policy (I believe I agree that it is), but whether it is constitutional. On this point, the tail seems to wag the dog in the article; good policy and practicalities motivate a favorable constitutional analysis. With that said, the article does give me serious pause in my initial conclusions about the constitutional issues. In this respect, the article is a success both in itself and for the administration.
A block quote of the conditional waiver analysis follows the jump.
Thursday, November 21, 2013
Last week, the Department of Education indicated that it is backing away from the requirement it announced just 2 months ago that low income and minority students have equal access to high quality teachers. This move and the timing of it are troubling. Civil rights leaders and scholars, including myself, had praised the Department for making equal access part of the NCLB waiver requirements. And although I had previously posited that Arne Duncan was inappropriately acting as a de facto superintendent of the United States of America School System in the conditions he was placing on school systems, equal access to teachers was one area that did not raise the same concerns because it was within the scope of existing statutory language of NCLB. The Department just had not been enforcing it and now seemed ready to do so. Backing away now only reignites concerns about the statutory authority under which Duncan is acting. His ability to change course reinforces the notion that he is not acting under statutory standards, but based on his judgement of how best to run "his" national school system.
Legalities aside, this retreat is also problematic on a policy level. In just the past week, two major studies identifying the gains associated with this access have been released. One was a Department of Education funded study showing the efficacy of encouraging top teachers to transfer to needy schools. The second was a Fordham Institute study showing the efficacy of giving the best teachers larger class enrollments. Both studies showed impressive results and only added to the mountain of research that preceded them. Why the Department would back away from existing teacher requirements in the midst of increasingly persuasive evidence on the topic is beyond me.
Friday, October 18, 2013
Federal Budget Bill Extends Flexibility to Count Teachers from Alternative-Certification Programs as "Highly Qualified"
As part of the agreement this week that ended the government shutdown and raised the debt ceiling, Congress extended states’ permission to count alternative-route teachers as “highly qualified” to the 2015-16 school year. In a provision of the Continuing Appropriations Act, 2014, Congress allowed states to continue to include teachers from alternative certification programs such as Teach for America and the Teaching Fellows Programs as part of their educational improvement plans. Alternative-route teachers often do not have the requirements to be counted as “highly qualified” under the No Child Left Behind Act. The 42 states and D.C. that have waivers from NCLB must hire and evenly distribute “highly qualified teachers”—defined as having state certification and a degree in the subject that they teach. The Continuing Appropriations Act 2014 extends states’ ability to redefine NCLB’s highly qualified teacher requirement that Congress passed in 2010. Sen. Tom Harkin, D-Iowa, authored the language in the 2010 bill and the extension in this week’s budget bill. Sen. Harkin’s spokesperson said that the flexible definition of highly qualified teachers “is a short-term fix until Congress can have a long-term conversation about the future of ESEA.” The extension of the flexible definition of “highly qualified” reignites criticism that it allows states to replace career teachers with cheaper, short-term teachers-in-training as education professor Kenneth Zeichner (University of Washington) wrote in an essay in the Washington Post’s Answer Sheet here.
Monday, October 7, 2013
Derek observed recently that Congress’ failure to reauthorize the Elementary and Secondary Education Act/No Child Left Behind has essentially made Education Secretary Arne Duncan a national school superintendent. Common Core funding and NCLB waivers (or avoidance of NCLB penalties) are incentives too good for most states to refuse. This weekend, an article examines Duncan’s next three years at the ED—as he runs out of carrots and now must break out the sticks to win states’ compliance with the Obama administration’s policies. The article notes that “[a]t least four states are fighting with the Education Department over their waivers, Georgia plans to appeal a federal decision to withhold a small portion of its Race to the Top award, and California continues to test the bounds of what it can and can't do on school accountability under federal law. In contrast to the early years of the Obama administration, Mr. Duncan is now "wildly unpopular," said Maria Ferguson, the executive director of the Center on Education Policy at George Washington University.” Read more here.
Thursday, October 3, 2013
Some of you may have already seen Eloise Pasachoff’s article, Conditional Spending After NFIB v. Sebelius: The Example of Federal Education Law, which appeared in the American University Law Review. If not, it is worth reading for both your education law and constitutional law classes.
Building on that article, she just posted a detailed essay on the American Constitution Society’s website that compares education spending conditions and environmental spending conditions. Her bottom line is that, like environmental programs (which Erin Ryan recently analyzed), education programs will survive Sebelius. The full essay is here.
On Monday, Texas became the 42nd state that the Department of Education has granted a waiver from the Elementary and Secondary Education Act/No Child Left Behind Act. Texas’ NCLB waiver is noteworthy because the state was a holdout—perhaps reluctant to capitulate on the law that was based on the state’s educational reforms—and championed by former president George W. Bush. Without a waiver, Texas faced financial penalties if it failed to meet NCLB’s benchmarks for students to show proficiency in reading and math by 2014. Only California, Montana, Nebraska, North Dakota, and Vermont have not requested NCLB waivers for 2014. California has told the ED that it plans to focus on implementing Common Core; eight districts in California got a separate waiver earlier this year. Illinois, Iowa, and Wyoming have waiver requests pending.
Wednesday, September 18, 2013
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 equity, school 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.
Thursday, September 5, 2013
Now that school is back into swing, elementary and secondary schools are feeling the full brunt of the sequester, but not all schools are feeling it the same. Most of the federal money in public schools flows through Title I of the Elementary and Secondary Education Act. While my past work has critiqued the formulas through which these funds extensively for their failure to fully account for the effects of concentrated poverty, it is true that the money flows to schools based upon the number of poor kids they have. Thus, the more poor kids a district has the more money it is loosing under the sequester cuts.
Wealthy districts, of course, have poor kids too, so they are suffering cuts as well. But those cuts amount to smaller line items and those districts necessarily have more capacity to make up the difference. Whereas, other districts are loosing more money and have less capacity. MSNBC tells the story of the affluent Loudon County, Virginia, district where district officials say the cuts "meant hardly anything," but in Virginia’s Shenandoah Valley, things are pretty bad.
When Harrisonburg students went back to school in August, there were fewer teachers and staff to greet them: The district lost an English proficiency teacher, a school social worker, a Head Start teacher, and a teacher’s aide when sequestration cut $400,000 from the school budget, according to Harrisonburg school superintendent Scott Kizner. The cuts come to a district where 70% of students qualify for a free school lunch, and more than 40% speak English as a second language.
Derek recently posted about the Campaign for High School Equity's concern that No Child Left Behind (NCLB) waivers may dilute efforts to close the achievement gap for at-risk students. The Department of Education's most recent guidance letter may be trying to address that concern by adding new requirements for NCLB waiver extensions. NCLB waivers already require states to develop teacher-evaluations, but the ED will now also require them to "commit to ensuring that poor and minority students are not taught at higher rates than other children by ineffective teachers." Interestingly, the text of the ESEA reads that states must "ensure that poor and minority children are not taught at higher rates than other children by inexperienced, unqualified, or out-of-field teachers," which presumably is not intended to define "ineffective" teachers in the renewal requirement. If the ESEA definition governs, it may be a sticky situation for districts that are replacing veteran teachers with temporary ones. Under the new guidelines, renewing school districts must also show that any Title II funds spent for professional development must "deepen [educators'] knowledge of college- and career-ready standards" and that development must be "evidence-based." Forty-one states, the District of Columbia, and eight California school districts have waivers from certain requirements of the Elementary and Secondary Education Act (ESEA) (as amended by NCLB). Thirty-five states were approved in the first two rounds of flexibility waivers, which expire at the end of the 2013-14 school year. Those states and districts may extend their ESEA flexibility waivers to the 2015-16 school year. Read the ED's statement here.
Monday, August 5, 2013
Arne Duncan seems to see the current headlines on ESEA reauthorization the same way I do. In an interview with Ed Week, he explained that he has not been publically commenting on the current ESEA reathorizations in Congress because "You want to spend time where people are serious" and the current House Republican version of ESEA reauthorization is not "serious."
Duncan, however, has continued to push President Obama's state of the union address proposal to expand pre-k education. Even though there is no specific bill to push in either house, he belives passing legislation to expand pre-k is still possible. Again in his comments to Ed Week, he said there is "extraordinary bipartisan investment and support across the country that we're seeing from governors, Republican and Democrat. . . .And while it is not public yet, we have had many, many conversations with Republican leaders in the House and Senate that are frankly encouraging."
Let's hope he is right. I wouldn't place bets on the passage of a pre-k bill, as this current Congress doesn't seem interested in working with the President, even it agrees with him. But I do believe Duncan is right about bi-partisan support for pre-k. For instance, as noted on this blog, states like South Carolina and Utah have taken or are mulling steps to expand pre-k at the local and state level. Of course, they are not the only ones.
Wednesday, July 31, 2013
While Eric Cantor may have backed away from unadulterated school choice, Rand Paul is ramping up his calls. Tuesday he hosted four fellow Republican senators — Lamar Alexander (Tenn.), Mike Lee (Utah), Mitch McConnell (Ky.) and Tim Scott (S.C.) — at a school choice forum to highlight his proposal to expand school choice in the reauthorization of No Child Left Behind. This was part of a string of other similar forums he has held recently.
“I’m talking about opening up all of the lines, so that kids can go to public, to private, wherever,” said Paul. “Some of these schools are absolutely pitiful, absolutely. What I’m really proposing is helping these kids get out from the grind. . . . The people being hurt aren’t the rich white kids in the suburbs. It’s poor black and brown kids in the inner city.”
When asked about findings that voucher programs have not resulted in gains for poor kids but have cost the government enormous sums of money, Paul objected that this was the wrong question, arguing “It’s our money. We’re getting back some of the money taken from us. I think when you have choice, people choose the better product. I think it’s presumptuous of anyone to question parental authority.” He similarly rejected less than exemplary findings by Stanford's Center for Research on Education Outcomes about charter schools as "lies and lies. . . People can manipulate statistics all they want. Have you seen the movie ‘Waiting for Superman’?”
As noted in my earlier post on Cantor, the Republican Party seems to have backed away from Paul's position. Presumably, enough Republicans believe in statistics and question the ramifications of giving the education budget to individuals with no strings attached that the party is unwilling to support Paul. The interesting aspect of Paul's continued focus on this issue, however, is that his purpose may be to court minority voters rather than to change NCLB. Recall his recent visit to Howard University. Somehow, I doubt that minorities would vote for Paul simply because he supports choice. Also, when one digs a little deeper, it is not clear that he supports minorities communities. Rather, he supports privatization and libertarian principles, which minorities can see through if they are not being seriously respected. After all, implicit in Paul's current statements is the notion that he has no interest in improving minority schools or segregation. He just wants choice.
While libertarian interests can intersect with minority community interests, James Foreman's article, The Rise and Fall of School Vouchers: A Story of Religion, Race, and Politicals, 54 UCLA L. Rev. 547 (2007), analyzed how a coalition of this sort fell appart in the late 1990s and early 2000s.
Thursday, July 18, 2013
I can't seem to practice what I preach. After warning you off of daily updates on the reauthorization of the Elementary and Secondary Education Act in favor of the Department of Education waivers, I am now giving you my own update. It is not, however, because I believe the competing bills will go anywhere, but because I believe the bills say something about education values and agendas.
Eric Cantor has introduced an amendment that would allow low-income students to take their Title I dollars to their public school of choice, which includes both charters and traditional public schools. Alyson Klien of Ed Week reports: "Folks had originally expected Cantor to introduce an amendment that would allow parents to take their Title I dollars to a private school, as well as a traditional public school or charter. But that idea met with big resistance from some moderate members of the House Republican caucus, advocates say. And two Republican lawmakers—Rep. Rob Bishop of Utah and Matt Salmon of Arizona—have introduced amendments that would allow students to bring their Title I dollars to private schools. Will Cantor's public school choice amendment be sufficient to help the bill garner support from conservatives? Stay tuned."
The free flow of Title I dollars to private schools is an attack on public schools. Conservatives argue that such a move just gives poor kids the same option as wealthy kids. But even with a voucher or Title I portability, poor kids will not have the same option as wealthy kids. Voucher program data consistently shows that most of these students end up in religious schools. They end up there not because they want a religious education, but because those are the only private schools willing to take them at a reduced rate. This is not to criticize religious schools, but to point out this is not really about giving poor kids options. Instead, it is either about pushing a religious agenda or intentionally moving federal money out of the public system and into the private system. The latter motivation, which seems like the strongest of the two motivations, represents lost faith in public schools and/or an attempt to undermine them.
I find it heartening that enough moderate republicans balked at this idea that Eric Cantor is moderating his choice position. I find it disheartening that two other republicans have stepped up to take Cantor's place and will introduce similar legislation anyway. Hopefully, they will remain on the margins. Regardless, the other question is whether Cantor's moderated position really is moderate. Is easing the move of federal money out of traditional public schools into charter schools one that represents a commitment to public schools, or is it just the first step toward the grand initial plan of moving money to private schools?
To be clear, the concept of funding portability is an appealing one to almost all civil rights advocates. NCLB included a transfer provision that many thought would help integrate and diversify schools, but it didn't work because the receiving schools outside of the school district were not obligated to accept transferring students. If Cantor's provision creates a greater incentive for suburburban schools, for instance, to enroll urban students, it could be an important move for integration and diversity advocates. It is hard for civil rights advocates to not be skeptical of anything that Cantor might introduce, but school choice is the one area where conservatives and civil rights advocates have been able to find common ground. I'll keep my fingers crossed.
Monday, July 15, 2013
I am a couple of weeks behind on this one, but Arne Duncan granted New Hampshire's application for a No Child Left Behind waiver at the end of last month. That brings the number of states with waivers or flexibility to 39. See here for the full list on details on each.
These waivers continue to be incredibly important. While a lot of news has come out of the Senate and House over reauthorization of the Elementary and Secondary Education Act (ESEA) during the past few weeks, much of it looks like grandstanding to me. It is not clear that the House and Senate will come anywhere close to passing legislation on which they could agree. If that is the case, the net result is that the NCLB waivers are the de facto reauthorization of ESEA, as they are setting the terms by which school districts and states must act over the coming years. The Obama administration seems perfectly content with this result. Some republicans likely are as well, as many of the waivers contain the sort of terms that the would favor in ESEA reauthorization. In short, rather than pouring over the daily and weekly updates on various ESEA bills moving forward in the House and Senate, one's time might be better spent on the Department of Education's waiver and flexibility page.