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Federal Opinion

Duncan’s Trip Down the Waiver Rabbit Hole

By Rick Hess — April 28, 2014 4 min read
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On Thursday, Secretary of Education Arne Duncan yanked Washington State’s NCLB waiver, forcing the state to again operate under provisions of a law that Duncan has declared “broken.” I criticized the move, prompting several readers to ask whether I was being unfair and what I would have Duncan do instead. Duncan apologists cheered his decision as simply a case of him enforcing the law, while explaining that he’s only acting because Congress won’t, promoting good reforms, got the approval of state education leaders, and had to do something about misbehaving states.

I find these claims laughable. Indeed, they reflect a profound lack of respect for, or understanding of, our system of government. First, living in a nation of laws means we don’t bypass legislatures even if they fail to act. Duncan could have worked with Congress. Instead, his waiver band-aids have made action more difficult. Second, “good” reforms can be much less so when mandated on recalcitrant states, especially absent legislative support. Third, state leaders are okay with this largely because they know Duncan’s bureaucrats can make their lives harder or easier, depending on whether they play ball. Fourth, laws provide measures for dealing with bad actors. Duncan’s problem here is a product of him wanting states to do something that he has no standing to make them do. Duncan’s waiver strategy has taken us down an ill-advised, lawless rabbit hole. (Note: This is not about conspiracy theories or questioning Duncan’s good intentions. I’m happy to stipulate that Duncan means well.)

No law requires Washington State to do what Duncan demanded. There is a relevant law here--the No Child Left Behind Act, which has the virtue of actually being a law. It was enacted by Congress, signed by President Bush--the whole deal. A Secretary of Education invested in enforcing the law could have, you know, enforced it.

Now, NCLB is a troubled law, for reasons that Checker Finn and I wrote about a decade ago. So I’m all for revamping it. And Duncan could have tried. He could have tried in 2009 and 2010, when the Democrats had hefty majorities in the House and Senate. He didn’t. Partly because he and his team were having so much fun with make-it-up-as-you-go projects like Race to the Top and School Improvement Grants, cases where a Democratic Congress had given him carte blanche to do pretty much whatever he felt like. Duncan clearly found that more engaging than the dreary business of negotiating with Congress.

Heck, the administration took more than a year to even offer its sketchy “ESEA blueprint” and those big Democratic majorities never moved a bill out of committee. In 2011, 2012, or 2013, Duncan could have worked to pass a bipartisan bill. In fact, last summer, the House passed an ESEA reauthorization (the Student Success Act) that I think is pretty terrific.

Instead, Duncan opted to gut NCLB by waiving key parts of the law for states that promised to do stuff he likes; his problem is that he has no authority to enforce the whims that he’s substituted for statute. If you read Duncan’s letter yanking Washington’s waiver, the casus belli was the failure of the state’s legislature to pass a law Duncan had demanded. However, Duncan has no legal basis to give orders to Washington’s legislature (nowhere does NCLB empower Duncan to tell states how to design teacher evaluation).

Duncan’s behavior has been, quite literally, lawless. The first time that Washington refused to do as commanded, as Duncan’s letter notes, he felt free to nonetheless extend its waiver. This time he didn’t. Of course, it’s a safe bet that every state is currently violating some part of its waiver. And those states which have dropped PARCC or SBAC are massively in violation of their waivers (after all, for good or ill, NCLB actually does give the feds some say-so on state tests--so these states are lying about stuff actually related to the law). Yet Duncan, presumably trying to avoid doing further gross damage to the Common Core cause, seems inclined to turn a blind eye.

Those sanguine about all this just might want to break out a couple of those old college political theory texts featuring Hobbes, Locke, and Montesquieu, or Madison and Hamilton. Our system of government embraces the primacy of law, checks and balances, and federalism for reasons both theoretical and practical. At least four merit mention here.

First, those cheering Duncan now might feel differently about this approach to mandating reform if Rand Paul’s Secretary of Education decides to suspend NCLB for states that offer school vouchers--or if Hillary Clinton’s does for states that require all teachers to have an ed school degree. The thing about ignoring the rule of law and making-it-up-on-the-fly is that it’s only fun when you like the outcome.

Second, if something is imposed on a whim, it can be reversed on a whim. The next Secretary can readily wipe away those old waiver conditions and issue new ones. The last things schools need is more instability and policy churn.

Third, bypassing the legislature may be fun but it avoids the need to forge consensus or build support. Laws that have been passed by Congress have muscle, funding, and legitimacy. Duncan’s freelancing does not.

Fourth, the federal government doesn’t run schools. It can tell states to make schools do things, but it can’t make them do them well. That’s a general caution for those who would “reform” schools from Washington. (It’s why I can agree with the administration on a number of big ideas and still stridently oppose their efforts to promote them.) This caution applies many times over when operating without the kind of broad support, concrete carrots, and statutory sticks that only legislative sanction can provide.

One can respect Duncan’s intentions, and even sympathize with much of what he’s trying to do, and still find his leap down the waiver rabbit hole a debacle whose destructive, regrettable legacy will long outlive his tenure.

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