Thursday, September 11, 2014
Although Education Law Prof Blog editor Derek Black (South Carolina) has referred to his scholarship in discussing the ED's "big waiver" policies, I don't think that we have posted his new paper, Federalizing Education by Waiver? (forthcoming Vanderbilt Law Review). In the paper, Prof. Black examines how NCLB waiver policies exceed Secretary Duncan's constitutional and statutory authority. The abstract is below, and the paper may be downloaded from SSRN here.
In the fall of 2012, the United States Secretary of Education told states he would use his statutory power to waive violations of the No Child Left Behind Act (NCLB), but only on the condition that they adopt his new education policies — policies that had already failed in Congress. Most states had no real choice but to agree because eighty percent of their schools were faced with statutory sanctions and fund termination. As a result, the Secretary was able to federalize two core aspects of public education over the next year. For the first time, school curriculum and the terms of teacher evaluation and retention came under the control of the federal government.
This Article demonstrates that this particular exercise of conditional waiver power was both unconstitutional and beyond the scope of the Secretary’s statutory authority. First, NCLB contained no notice that states might face waiver conditions when they first agreed to participate in NCLB, much less notice of the substance of those conditions. Spending clause doctrine requires both. Second, states’ inability to say no to these conditions raises serious questions of unconstitutional coercion. Third, the Secretary lacked explicit statutory authority to impose these conditions. At best, NCLB implies authority to condition waivers, but implied conditions would be limited to the scope of NCLB itself. The waiver conditions the Secretary imposed go well beyond the scope of NCLB. Fourth, to treat these particular waiver conditions as falling within the scope of the Secretary's authority would be to extend the Secretary the equivalent of law-making power, which separation of powers doctrines prohibit. The power to unilaterally impose open-ended policy through waiver conditions would be remarkable not just for its transformation of key aspects of education, but for the entire federal administrative state. It would open the door to the spread of a more expansive administrative power than ever seen before.