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Time To Leave Federalizing Of Education Behind

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Washington, D.C. has managed to take the most basic state and local responsibility—K-12 education—and federalize it at breathtaking speed over the last 12 years.  Now, with the signature piece of federalizing legislation, No Child Left Behind, up for reauthorization in Congress, it is time to put the brakes on this failed and misguided federal experiment.  In short, forget no child--what needs to be left behind is the federalizing of education.

How did this happen anyway?  Although Lyndon Johnson stuck the federal nose in the K-12 education tent in the mid-60’s, providing special federal aid for poor and disadvantaged children in his War on Poverty, the real momentum developed when President George W. Bush sought to bring his “Texas miracle” on education to Washington as the “education president.”  Bush and Senator Ted Kennedy famously got together and enacted No Child Left Behind (NCLB) in 2002, laying the groundwork for federal testing and accountability which now dominate the educational scene.

But wait, there’s more.  When, by 2012, it was clear that 80% of America’s schools would not meet NCLB’s goal of proficiency for every student by 2014, with resulting embarrassment for politicians and draconian penalties for schools, U.S. Secretary of Education Arne Duncan began issuing waivers (to over 40 states) lifting NCLB’s requirements.  If schools cannot reach the federal bar, well then the obvious solution was to lower or eliminate the bar.  But Duncan did not just waive the requirements for states, rather he did so on the condition that states agree to new conditions he sought to impose that would further change the direction of K-12 education, including strong moves toward a national curriculum (Common Core) and teacher evaluation and accountability.  These were debates properly taking shape in the states, but suddenly the Department of Education took sides and imposed a federal solution.

As South Carolina law professor Derek W. Black points out in a forthcoming issue of Vanderbilt Law Review, however, the Secretary’s conditional waivers were constitutionally problematic in two ways.  First, imposing new educational policy requirements on states through conditional waivers was a step that, under the balance of powers between Congress and an executive agency, only Congress could approve.  And second, this became a form of federal coercion on the states, essentially bribing the states with federal money to follow federal policy.  Over 40 states succumbed.  As Professor Black concludes:  “With no more power than the authority to waive noncompliance with NCLB, Secretary Arne Duncan achieved a goal that educational equality advocates had long sought, but never secured:  the federalization of aspects of public education.”

As Congress debates the reauthorization of No Child Left Behind, the real conversation should be about rolling back the federal role in K-12 education.  Over half a trillion dollars in federal money has been spent on this experiment, with very little to show for it, according to the independent Center on Educational Policy and others who have studied the results.  The federal Department of Education has become, in effect, what Senator Lamar Alexander has called “a national school board” micromanaging educational policy and outcomes.  Finally states have awakened to what they have given up and there is a backlash against the Common Core, which is spreading to the NCLB reauthorization debate.

It’s time to admit a federal failure here.  Unrealistic goals were set and federal officials have done unconstitutional hand-stands to mitigate the damage.  Hundreds of billions of dollars have been spent.  Teachers and students spend countless hours teaching to the new federal tests.  Plenty of children have been left behind.  Enough already.

Let’s return educational policy and authority close to home, to school districts and ultimately the states.  Let’s not reauthorize No Child Left Behind and instead begin the painful and difficult shifting of both money and authority home to districts and states.