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Differentiated Accountability Pilot: Policy-Free Lawmaking, Yes. Lawless Policymaking, No.

March 27, 2008 9 min read
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Education Sector’s Kevin Carey of The Quick and the Ed blog has written “Lawless Policymaking,” a long critique on the Department of Education’s pilot project on differentiated accountability.

I agree with the thrust of his commentary, but unfortunately Carey’s premise that the pilot “is not, in the strictest sense of the word, legal,” and that “there are no sections or subparagraphs that say the Secretary of Education may at her discretion alter or ignore” any of NCLB is, well, flat wrong. As someone who often argues that the Department of Education has ignored the legislation deliberately - for example, as it applies to Scientifically Based Research in general, and especially to Scientifically Based Reading Research under Reading First – I’d like to agree with him. However, “the black-letter law is pretty clear” that the Secretary is well within her legal authority.

(Since I posted this, Cary emailed me to advise he has updated his post. The update includes a link to my earlier post on the pilot, but not this one. His first Quick and the Ed post left no place for reader comments. To make life a bit easier on readers, I’ve copied his original post at the end of my post. Readers please note that I feel free to make changes to any of my posts until someone -anyone - has posted a comment. For one thing, that leaves me free to correct typos and the like.)I’ve argued for the repeal of Section 9401 since at least April of 2005 precisely because it unambiguously permits her to waive virtually every provision of the law - with very view substantive exceptions, none of which are related to NCLB’s key accountability provisions. (I’ve linked to the section in my own commentary on the pilot – What in retrospect I’ll call “policy-free lawmaking,” and offer the key provisions below.) Every Secretary of every department implementing major legislation needs some waiver authority, but as one who wants to reduce the political risk of investments in the school improvement industry I’ve oppose the sweeping authority NCLB grants to any Secretary of Education.

Section 9401 is styled in a way that suggests states must request waivers of the law, but a lot less time is wasted when a Secretary explains the kind of waivers she is inclined to grant and requests proposals. That’s precisely what Secretary Spellings did.

The Department’s Inspector General has found that in the past both Paige and Spellings failed to give adequate notification of waivers in the Federal Register in the past. Something similar might be happening here, but these are technical rather than substantive violations of NCLB.

Perhaps I should also point out that while it may well be true that as Carey argues, waivers will be granted for the differentiated accountability pilot because “nobody objects,” that’s a strictly political assessment and depends in part on how one separates the somebodies from the nobodies.

There is obviously no formal rule that permits an agency head - or the Secretary of Education under NCLB - to grant waivers “using what amounts to an extra-legal, consensus-driven process”; nor is there a legal basis for “anyone (to have) standing (and so) derail it simply by saying so.” Moreover, there is no informal, political custom and practice to this end. In making decisions to exercise waiver authority, every agency head must balance political practicalities with policy preferences. Sometimes the big stakeholders in the decision agree. Sometimes they don’t. Sometimes there’s a consensus; just as often there is not.

Which brings me back to my concern about Section 9401. Carey argues that “[i]f Senator Kennedy, Representative Miller, Representative Boehner, or any of the major interest groups hated the (differentiated accountability) idea, it wouldn’t be happening.” Today “the only real objections (from the AFT, at least one chief state school officer and Fair Test - see here) have been ‘it doesn’t go far enough’ (so) the process goes ahead.”

That’s the political calculus for a Republican Secretary of Education in the spring of 2008. In the winter of 2009, a Democratic Secretary could just as easily choose to ignore Boehner, McKeon, SES providers and the school improvement industry in general, and I suspect one will. Then we will really see a “process of amending the law without going through the whole hassle of introducing bills, having votes, getting lobbied, etc. etc.”

But let’s be clear, this is no violation of law; it’s the usual politics of public education. And whether you are a Democrat or a Republican; whatever your position on AYP, SBR or SES; and wherever you come down on private sector involvement in public education, all share an interest in a clear, stable and predictable regulatory regime. Yet the meaning of NCLB provisions will remain unsettled until the Secretary’s authority under Section 9401 is curtailed substantially.

SEC. 9401. WAIVERS OF STATUTORY AND REGULATORY REQUIREMENTS.

`(a) IN GENERAL- Except as provided in subsection (c), 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, that —

(1) receives funds under a program authorized by this Act; and

(2) requests a waiver under subsection (b)…..

(c) RESTRICTIONS- The Secretary shall not waive under this section any statutory or regulatory requirements relating to —

(1) the allocation or distribution of funds to States, local educational agencies, or other recipients of funds under this Act;

(2) maintenance of effort;

(3) comparability of services;

(4) use of Federal funds to supplement, not supplant, non-Federal funds;

(5) equitable participation of private school students and teachers;

(6) parental participation and involvement;

(7) applicable civil rights requirements;

(8) the requirement for a charter school under subpart 1 of part B of title V;

(9) the prohibitions regarding —

(A) State aid in section 9522;

(B) use of funds for religious worship or instruction in section 9505; and

(C) activities in section 9526; or

(10) the selection of a school attendance area or school under subsections (a) and (b) of section 1113, except that the Secretary may grant a waiver to allow a school attendance area or school to participate in activities under part A of title I….

(g) PUBLICATION- A notice of the Secretary’s decision to grant each waiver under subsection (a) shall be published in the Federal Register and the Secretary shall provide for the dissemination of the notice to State educational agencies, interested parties, including educators, parents, students, advocacy and civil rights organizations, and the public.

Kevin Carey’s Original Post:

So I went on vacation for a week and missed the whole differentiated consequences pilot project thing. Alas. But it’s interesting to see it from a little distance. A few thoughts:

For readers not steeped in NCLB arcana--and really, what’s the matter with you--Secretary of Education Margaret Spellings announced that she would allow 10 states to change what they do with schools that fail to make “adequately yearly progress” under NCLB. As written in the law, AYP is binary standard--you make it or you don’t, and the law doesn’t distinguish between schools that miss the cut with one group of students by an inch and those that miss with all their students by a mile. NCLB critics say this is simplistic and unfair, and they have a point. A somewhat overblown point, since states have adopted a range of statistical gimmicks to prevent schools from missing AYP by any amount, and because you have to miss AYP for multiple consecutive years for consequences to really kick in. But a point nonetheless.

The pilot project will allows states to react with (presumably) more resources, support, and pressure in the really bad schools than in those on the margins. It will only be open to states that have done a reasonably good job of implementing the law--e.g. no track record of making AYP determinations six months after the school year begins--and that have identified a substantial percentage of schools as needing improvement. These are all good ideas--there’s no reason to have differentiated consequences in a state like, say, Wisconsin, where only 4 percent of schools miss AYP. There’s nothing to differentiate when all your schools are above average.

This is not, in the strictest sense of the word, legal. The black-letter law is pretty clear: If you want federal money, you have to implement an accountability system that works as follows. There are no sections or subparagraphs that say The Secretary of Education may at her discretion alter or ignore the previous subparagraphs if people seem to agree they’re not written well and Congress doesn’t get around to reauthorizing the law on schedule. But this is nothing new; Sec. Spelling did the same thing with a “growth model” pilot project a few years ago, which allowed states to rate schools based on year-to-year improvement, rather than absolute levels of performance.

Sec. Spellings can do this for a simple reason: nobody objects. She’s using what amounts to an extra-legal, consensus-driven process of amending the law without going through the whole hassle of introducing bills, havings votes, getting lobbied, etc. etc. The check on this method is that anyone with standing can derail it simply by saying so: If Senator Kennedy, Representative Miller, Representative Boehner, or any of the major interest groups hated the idea, it wouldn’t be happening. But since the only real objections have been “it doesn’t go far enough,” the process goes ahead. It’s actually a pretty efficient when you think about it.

It’s also interesting to think about the long-term implications for NCLB reauthorization. My best guess is that nothing moves until 2010 at the earliest. That would still be a faster turaround than the Higher Education Act, which nearing the 10th anniversary of its last incarnation. What happens if, in the meantime, this Secretary of Education or the next one continues to pick off the law’s major flaws, one by one? A couple of predictions:

First, it will be become increasingly clear that NCLB is not identifying schools as low-performing because it’s horrendously inaccurate and arbitrary but because those schools are, in fact, low-performing. This is what happened with the growth model pilot project, where it turned out that most of the schools that look bad when judged by an absolute standard also look bad by a growth standard. Students just aren’t learning there. Similarly, despite what you may have read in the newspaper, NCLB has not resulted in states coming down on large numbers of schools like a ton of bricks. It is simply not happening. In fact, if states takes the terms of the pilot project seriously, a reasonably likely outcome is that more schools will be subject to legitimately serious consequences, not less.

This, in turn, should provide some clarity to the accountability debate. In the end, the NEA didn’t decide to wage war against NCLB because the law is underfunded, or lacks a growth model, or lacks differentiated consequences, or relies on standardized tests of inadequate quality, even though all those things are true. The NEA rejects the idea of assessment-driven governmental accountability for public education at its core. As long as this remains the case, no fixes--regardless of how sensible they may be--will change its mind.

-- Posted by Kevin Carey at 4:41 PM

The opinions expressed in edbizbuzz are strictly those of the author(s) and do not reflect the opinions or endorsement of Editorial Projects in Education, or any of its publications.

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