No Child Left Behind Still Haunts the Hallways of American Schools

Though officially expired, the requirements of the NCLB program remain an albatross around the necks of hundreds of US schools, threatening to label them failing and forcing them to implement unproven but potentially expensive interventions in order to retain their federal funding. An olive branch was extended to those schools last month by U.S. Secretary of Education Arne Duncan when he offered to waive certain requirements of NCLB in exchange for state adoption of changes the administration supports, such as linking teacher evaluations to student achievement and expanding charter schools. Didn't we learn from the scandal in Atlanta what linking teacher funding to test scores incentivizes? NCLB is no jewel, but accepting such waiver conditions is not a great fix either.

Writer Whitney Downs covered the issue in her Enterprise Blog in the Journal of the American Enterprise Institute.

In yesterday’s Wall Street Journal, education writer Stephanie Banchero highlighted the increasing impatience among state leaders over Congress’s inability to “fix” No Child Left Behind. Reauthorization of the law, which was enacted during the George W. Bush administration and technically expired in 2007, has been one of President Obama’s top priorities. “I’m calling on Congress to send me an education reform bill I can sign into law before the next school year begins,” he said back in March.

Currently, NCLB requires that individual schools and districts show certain levels of student proficiency on statewide language arts and math tests. Schools must not only have a satisfactory school-wide average, but must also demonstrate proficiency among subgroups of the student population, such as special education and African American students. If schools or districts fail to demonstrate “adequate yearly progress,” then a “remedy cascade” kicks in, which include replacing staff or leadership, reopening the school as a charter school, or placing the district under state control.

State officials argue that flagging huge swaths of their schools as “failing” will be deeply destructive–infuriating parents and forcing schools of all sorts to adopt a series of crudely designed federal interventions. To make matters worse for states, the law calls for all schools to demonstrate 100 percent proficiency by 2014–or else face federally mandated sanctions. Secretary of Education Arne Duncan stirred controversy in March when he estimated that 80 percent of the nation’s schools would be labeled failing under the current law by fall 2011. While many agree this number is an exaggeration, it’s likely that most states will be identifying more than 30 percent or 40 percent of schools as “failing” to make Adequate Yearly Progress by 2013.

About a month ago, Duncan switched to “Plan B,” laying out a plan in which states could apply for waivers from the accountability requirements under NCLB in exchange for adopting a “basket of reforms.” The plan drew harsh criticism from those questioning the legality and prudence of such an option. A recent Congressional Research Service report about the proposal, for example, found, “Under such circumstances, a reviewing court could deem the conditional waiver to be arbitrary and capricious or in excess of the agency’s statutory authority.”

The waiver proposal–and the accompanying backlash–has left Duncan between a rock and a hard place. By attempting to grant states relief from the law in exchange for the department’s favorite reforms, Duncan alienated many of the crucial education players on the Hill–allies he needs to move reauthorization forward. “Plan B” also gives new ammunition to those who have been sounding the “executive overreach” alarm over the department’s continued role in the Common Core push and the recent Gainful Employment regulations. All of this has most likely weakened the secretary’s position at the bargaining table when it comes to Elementary and Secondary Education Act reauthorization.

This stalemate has left governors and other state education leaders fearful that NCLB isn’t going to be overhauled anytime soon. Faced with the decision to either abide by an inflexible, resource-draining federal law that’s going to label many of their schools failures or to take back the reins on school improvement and accountability, it’s no surprise that many of the new governors are opting for the latter.

Duncan’s dilemma is twofold. First, he’s fighting a losing battle in the court of public opinion when it comes to NCLB and the role of Washington in school reform. In the most recent PDK/Gallup poll, nearly 50 percent of respondents said they held either an unfavorable or very unfavorable view of NCLB, while just 30 percent felt favorably towards NCLB. This is a marked shift since 2008, when the percentages of those favorable and unfavorable towards the law both hovered around 30 percent. When asked who should hold schools accountable for what students learn, state and local government were preferred to the feds by an overwhelming margin of 80-19. Considering that many of these leaders were elected to push back on the Washington establishment, it may very well be a political win for these leaders to turn their back on NCLB and replace it with a state-devised solution.

As Banchero’s piece notes, the Education Department is facing an ironic coalition of union leaders and Republicans. What Duncan does now, and how this might scramble the educational politics of 2012, will be interesting to watch.

Five states are already starting to take matters into their own hands, which is where education matters should be in the first place. The WSJ article notes, "South Dakota, Montana and Idaho recently told federal officials they would disregard key aspects of the law. Wisconsin officials plan to ask the U.S. Department of Education if they can substitute a state-developed accountability policy in place of the law, and Tennessee is considering a similar move." This may be a turning point in the status of the DoE.