ESEA Reauthorization...Does It Even Matter When Obama Can Go Around Congress?

Because Congress is to renew the ESEA (Elementary and Secondary Education Act) every five (5) years (ostensibly), there has been recent debate in Congress surrounding this issue. Well, no, I lied. 

There really has been very little debate because, as many of you know, our President governs by Executive Order (translated through quotes by Veruca Salt, "I want it NOW!" and Mel Brooks, "It's good to be the king!") and does whatever he wants without the bother of consulting the Congress of the People.

The ESEA is no different.

The roots of the ESEA begin with Lyndon Baines Johnson's War On Poverty in 1965. LBJ - a presidential usurper with no real aspirations for the country but his own (and as such created Devil Deals with every liberal Democrat and Progressive he could find to get himself into office) was so pleased with himself over the first five Titles, he added two more in 1967.

Still and all, the law giving us the now infamous first ESEA numbered only 31 pages, and contained these words in the second to the last paragraph,

Federal Control of Education Prohibited

Sec. 604. Nothing contained in this Act shall be construed to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over the curriculum, program of instruction, administration or personnel of any educational institution or school system, or over the selection of library resources, textbooks, or other printed or published instructional materials by any educational institution or school system.

Other than Ronald Reagan, who actually upset critics and supporters alike by threatening to do away with the newly-formed federal Department of Education, every president since LBJ has considered the ESEA nothing more than part and parcel of the fabric of America, re-constructing and re-naming it as though part of their job description. Historically, even Republican presidents - supposedly to be more of the Reaganesque view that, "Education is the principal responsibility of local school systems, teachers, parents, citizen boards, and state governments" - have added more federal regulations to the ESEA, giving it an ever-increasing role over the states in a near shattering of the 10th Amendment to the Constitution.

In fact, it is the contention of one of Oklahoma's Constitutional attorneys, after considerable study, that Congress has spent the decades since inception of the ESEA, eroding the rights of the states once upheld in school law, leaving citizens, school boards, and state legislatures, with little to do now but kowtow to FEDERAL school law.

Wow, have we come a long way in American education reform. Today's ESEA - termed by George W. Bush as the No Child Left Behind Act - has it's OWN webpage on the White House servers where it has over nine THOUSAND more sections than the original. My how government does grow when watered by those with little to no knowledge, or regard, of the Constitution.

Though apparently everybody hates NCLB, it was supposed to have been re-authorized by President Bush in 2007. Due to a number of factors, including the 2008 presidential election, the passing of the House Committee on Education and the Workforce Chairman, Ted Kennedy, in 2009, and the Republican rout of the House in 2010, NCLB re-authorization has found itself continually put 'on hold'.

Though Secretary of Education, Arne Duncan, began telling the nation in late 2009,

More than any other issue, education is the civil rights issue of our generation and it can't wait—because tomorrow won't wait—the world won't wait—and our children won't wait.

it wasn't until February, 2010, that NCLB moved back to the national radar screen when President Obama called for its re-authorization, indicating he would integrate at least six new policies of his own, including continued Race to the Top incentives.

Since then, our president - given his propensity to give away the hard earned cash of Americans - has had to concern himself more with the more pressing "George-Bush-Caused" issue of national economic failure, and a deeply divided Congress not particularly interested in coming into agreement on any NCLB action.

These months of inaction have not sat well with our President, however, and he finally stepped beyond "can't wait" to "won't wait" in September of 2011, when he elevated himself from President to King with the words,

“Congress hasn’t been able to do it, so I will.”

And so was born, the recipe for a little Arne Duncan/Barrack Obama confection called the "NCLB Waiver". 

This "Waiver" allows states to:

• escape the 2014 100% proficiency standard, 
• receive relief from the accountability standards for "failing" schools
• receive flexibility in using federal funds to meet their needs under NCLB

In return, the states who take a waiver will be "strong armed" into:

• transitioning to College- and Career-Ready Standards and Assessments (Common Core State Standards)
• establishing a differentiated recognition, accountability, and support system that gives credit for progress towards college- and career-readiness
• setting basic guidelines for teacher and principal evaluation and support systems

Aren't these the SAME exact reforms the administration has been pushing with their taxpayer-money-fueled-giveaway-bonanza Race to The Top? 

Why the rush? Why can't the President wait for Congress to act? 

One major reason, really; at the centerpiece of the NCLB legislation was that little pie-in-the-sky notion that ALL children in ALL states would, after essentially being coached to respond to a series of tests, become 100% proficient in math and reading by the year 2014 (as deemed by NCLB's measuring stick, AYP - Adequate Yearly Progress).

Though probably readily obvious to you and I that no state would be able to meet those kinds of standards - ever - what happens to states when 2014 comes WITHOUT 100% proficiency? A whole range of 'sanctions' can occur, from getting less money to more money to a complete takeover of the school by the state. No beheadings, no draw-and-quarterings - just a whole lot of bureaucratic nonsense based on bureaucratic nonsense.

So why, then, would the President choose to go around a "do nothing" Congress in what essentially amounts to an NCLB "statutory bypass" - a re-write of existing law without the law-making body of the United States present in the room? 

Many have pondered that notion and many are concerned. 

First of all, the argument advanced FOR waivers seem particularly disingenuous. In support of the necessity of a waiver - over waiting for Congress to reform the law - Arne Duncan has (or Arnius Duncanus as he has been called by Checker Finn) told the media that 80% of all schools in the US could miss AYP, illusorily indicating the havoc this would wreak in Departments of Education all over the union.

Though the number of schools missing AYP has been steadily increasing since the beginning of NCLB, Duncan's figure has since not only been called into question, but even been referred to as an "estimate as hype intended to scare Congress into embracing Obama's (waiver) plan".

Second of all, there is a legitimate question about the legality of this waiver process. It is true that waivers have been granted by presidential administrations a number of times for a number of different reasons. There is a big difference, however, among waivers given to states to advance Medicaid and welfare reform, and Duncan's waiver which grants state waivers conditional on compliance with a particular reform agenda that is dramatically different from EXISTING law. 

Senator Marco Rubio, in a letter to Arne Duncan, has said the following, 

“Our principal concern is that the Executive branch does not possess the authority to force states into compliance with administration-backed reforms instituted through the issuance of waivers." 

“We acknowledge that NCLB allows the Secretary to grant waivers for existing provisions under the law, but nowhere does the law authorize waivers in exchange for the adoption of administration-preferred policies.”

“This initiative is an overstep of authority that undermines exiting law, and violates the constitutional separation of powers. The responsibility for legislating lies with Congress, and forcing policy reforms through NCLB waivers violates this most basic of constitutional structures.”

Unfortunately for the Obama Administration, Rubio is not the only one making these assertions. (Look Out Volunteerism! Here They Come Again, Duncan's Backdoor Blueprint Strategy, President Obama Mistakes Bi-Partisan Distaste for NCLB for a Mandate to Rewrite,)

Could it be that the reason for the rush - for "scaring" Congress into accepting NCLB waivers instead of a re-write of the law - is just another way to get states to adopt national curriculum and testing (originally illegal by the first ESEA) before Congress can act to re-write the existing law to stipulate against that? 

It is interesting that only ONE document read for this paper mentions that allowing each state to simply amend their existing ESEA accountability plans would not necessitate a waiver request, or require the states to meet any new requirements associated with the NCLB waivers. 

Additionally, not only has the administration proposed NCLB waivers, but now WAIVERS for the WAIVERS! So, if you're a state that can't get all your ducks in a row to apply for a waiver, you can apply for a waiver from meeting the deadline to apply for a waiver. It certainly does seem as though the administration is offering ALL possible 'voluntary' routes to their end game of Common Core, teacher evaluation and accountability. 

Representatives John Kline (R) of the House Education and Workforce Committee, and Tom Harkin (D) of the Senate Education Committee have both indicated concerns about NCLB waivers being "premature" and a tact that "bypasses the legislative process". Additionally, Representative Kline has expressed concern over the need to revamp current school law and allow states to command their own educational destiny.

Toward this end, Kline has produced draft legislation for an NCLB re-write, made up of two bills:

• The Student Success Act effectively counters many of the concerns raised with the Duncan/Obama centralization of education by returning power and money back to the states to administer in the way they best see fit - scaling back the federal role in education. (Summary here)
• The Encouraging Innovation and Effective Teachers Act; which, while increasing school choice and eliminating unnecessary and ineffective federal programs, also delves into the area of teacher 'effectiveness', an issue best left to local districts/schools. (Summary here)

It seems readily apparent from this everything-but-the-kitchen-sink examination of NCLB,  citizens must become EXTREMELY well-versed in this issue if the federal footprint on our children's education is to be reduced. Fortunately, ALL Republican candidates for president have indicated their desire to scrap or severely reduce the influence of the federal government on education once elected. This year, we must make it our duty as taxpayers and voters to support and vote for those candidates best prepared to usher in a new era of public education funded by the state and managed locally by the parents that support them.

Here in Oklahoma, Superintendent of Schools, Janet Barresi not only applied for an NCLB waiver but indicated she would do so nearly immediately after Duncan's announcement. Recently she has received a "positive response" from the Department of Education for her effort, though ROPE has asked both she and our Governor, Mary Fallin, not to apply based on our research.

It is a constant frustration for ROPE to know that while both women (Barresi and Fallin), ran under the banner of "Conservative" (and in fact supported them based on their assertions) both have been willing to run to the Federal government with their hands out time and time and time again. Those of us who are actual Conservatives, and who know the Oklahoma Republican platform regarding education, must hold our Governor and our Superintendent accountable for their actions. If we can not - if we do not - our control over what our kids are supposed to "learn and know" will be held above our heads at the federal level where we can't possibly influence it, while they jam their hands in our pockets to pay for it.

Further review of the NCLB literature can be found here.