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Education policy maven Rick Hess of the American Enterprise Institute think tank offers straight talk on matters of policy, politics, research, and reform.

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RHSU Flashback: What’s Good for the Goose...

By Rick Hess — November 22, 2016 5 min read

Note: As it’s Thanksgiving week and I doubt readers are looking for a heavy read, let’s use this as a nice chance to dwell a bit on the teachable moment we find ourselves in following the outcome of the election. After all, for years, some of us have cautioned that Obama’s Department of Education was engaging in dubious freelancing that might come back to haunt its biggest fans. Anyway, I figured it might be worth re-running a few columns that kind of got brushed away at the time, but might register more fully now--and that might help encourage some to perhaps give a second thought to the underappreciated blessings of federalism, limited government, and executive restraint. See yesterday’s flashback post here.

Today’s post first appeared on September 4, 2012.

Last night at the convention, the Democrats released their party platform. The plan lauded the Obama administration for its commitment to “working with states and communities so they have the flexibility and resources they need to improve elementary and secondary education in a way that works best for students.” The Dems continued with references to more rigorous teacher evaluation, college- and career-ready standards, and school turnarounds, the three principles of the administration’s “ESEA Flex” proposal.

RHSU readers know that I think the Obama administration’s approach to NCLB waivers is horrifically bad for the country. This is true even though I think NCLB is a profoundly flawed law and that states need relief from its more incoherent and destructive provisions. Given that, there are three reasons why I’m troubled by the administration’s efforts.

One, while Secretary Duncan certainly has the right to waive provisions of the law when he deems it appropriate (and while I applaud him for doing so), there is no basis for the notion that he can simply invent new requirements and insist that states adopt them in order to get relief from ill-conceived legislation. I think this sets a dangerous precedent, where the Secretary of Education can free states from justly enacted laws if they agree to embrace a presidential agenda.

Two, as I’ve noted before, the federal government can make states do things, but it can’t make them do these things well. And the unfortunate reality is that much of what our earnest Secretary of Education is pushing (like turnarounds and teacher evaluation) is the kind of stuff where how states do it matters far more than whether they do it.

Three, the nature of the federal system involves the fact that governors and state leaders stand for periodic elections. This means that the guys who cut the deals with Washington can be defeated by opponents (or retire... or be forced out by term limits...). Yet, the administration’s negotiated waivers effectively tie the hands of the next duly elected governor by attaching federal strings that seek to micromanage the shape of teacher evaluation, school improvement efforts, and much else. The only way a new governor can regain his or her freedom of action is by abandoning the waiver. Therefore, a bold new governor looking to recover his or her freedom will be required to push forward knowing the federal government will rescind their waiver, infuriating the state’s educators, and ensuring that the vast majority of schools will newly be labeled failing. This seems to me a lot more like blackmail than responsible federal governance.

That all said, if this is the game we’re going to play, then both sides might as well play it. After all, there’s nothing permanent about Duncan’s waivers. Were Mitt Romney to claim the White House, he could rescind the Obama administration’s waivers—and institute his own waiver process, with his own conditions—anytime he pleased.

Just for fun, Mitt Romney ought to take advantage of the door that’s been opened. If nothing else, it’s a useful way to make the point about the perils of being cavalier about precedent and might perhaps jar some waiver proponents into recognizing that this is a knife that can cut two ways. Here are my five suggestions for what Mr. Romney ought to propose, not necessarily because he’s expressed interest in following through on them (or because they’d be great policy), but because they’ll do an elegant job of highlighting the two-sided nature of the knife that Secretary Duncan has been wielding.

First, Romney ought to announce that waivers from NCLB will require real options for parents in all persistently low-performing schools. Since Democrats are right to point out that there aren’t enough seats for all the affected kids to escape to, Romney ought to insist that states adopt the “parent trigger” in order to give parents the option to radically remake their children’s school. Given that the parent trigger has been championed by Democratic school reform activists, but angers traditional Democratic allies in school districts, it’d be a neat piece of political jujitsu.

Second, on a related note, Romney ought to require that any state unable to provide adequate options for kids in failing schools would also need to adopt a voucher option, to help maximize the likelihood that kids can find an acceptable choice.

Third, Romney ought to insist that states seeking waivers do everything they can to ensure that schools and systems have the requisite opportunity to do what is necessary to serve kids well. Thus, he should require waiver states to emulate Wisconsin and Indiana and restrict the scope of collective bargaining to wages and wage-related benefits, so that it no longer encompasses policies that can impede school improvement.

Fourth, he ought to insist that waiver-seeking states demonstrate their commitment to ensuring that federal funds are supporting teaching and learning, rather than employee benefits. Thus, waiver states should be required to undergo an independent audit of their health care and retirement obligations and to adopt a plan that establishes a sustainable financial model.

Finally, he ought to insist that states demonstrate that they’re spending federal funds wisely. This requires meaningful cost accounting, including calculating ROI (return on investment) at the school and district levels. This would enable parents, taxpayers, state and local leaders, and federal officials to have some sense of how well limited resources (including Title I funds) are being spent.

Don’t like it? A problematic misuse of the waiver authority? Inappropriate federal overreach? Sheesh, once you’ve torn the constitutional fabric, turns out it’s tricky to just put it back. Anyway, something to think about...

The opinions expressed in Rick Hess Straight Up 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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