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Throwback Thursday: The ESEA Bill the Administration May Be Wishing For

By Alyson Klein — October 22, 2015 6 min read
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As you’ve probably heard many, many times by now, this marks the week that Marty McFly went to the “future” in Back to the Future Part 2.

But it’s also another milestone of sorts, at least if you’ve been working on education policy in Washington: Four years ago this week, the Senate education committee approved a (barely) bipartisan bill to renew the No Child Left Behind Act.

The bill, which was sponsored by then-chairman Sen. Tom Harkin, D-Iowa, and then-ranking member Sen. Mike Enzi, R-Wyo., went absolutely nowhere after that, even though it got a yes vote from all of the Democrats on the committee, and a couple of key Republicans (including now Chairman Sen. Lamar Alexander, R-Tenn.)

A big part of the reason it failed: The civil rights community, the disability community, and accountability hawks in general really hated it—because they felt like it was way too weak on protections for traditionally overlooked groups of students. (Think English-language learners or students in special education.)

What’s more, the Obama administration was somewhere between indifferent to openly critical of the bill. One reason? It didn’t include a requirement for teacher evaluations that took student test scores into account—a favorite policy of U.S. Secretary of Education Arne Duncan. (The administration, in fact, generally stayed on the sidelines of other reauthorization efforts for years afterward.)

Back in 2011, a top aide who worked on the Harkin-Enzi legislation reportedly privately told folks something along the lines of “they’ll kill for this bill in a few years.”

Well, it’s a few years later. And I’d imagine that there are plenty of current (and former) Obama administration officials and advocates who would love to fire up the DeLorean, head back to 2011 and pull out all the stops to get the Harkin-Enzi legislation off the ground.

To be fair, it’s easy to see why the administration and the civil rights community thought, at the time, that they could do better.

The bill was a big step back from NCLB when it came to calling for states and districts to intervene in schools where traditionally overlooked kids weren’t making progress. And it didn’t include an explicit requirement that states set certain ambitious goals, as the administration’s NCLB waivers do.

But the bill did have a lot of other things on the administration’s wish list that are totally absent from recent NCLB rewrite legislation passed by the House and Senate that’s now being negotiated by a conference committee. It authorized Race to the Top. It had a requirement that states intervene in their five percent of lowest performing schools and in another 5 percent of schools with big achievement gaps.

Maybe more importantly, it didn’t include some provisions now on the table that the administration and the civil rights community are fighting against. It didn’t have language curtailing the Education Secretary’s authority. It didn’t explicitly reference the Common Core standards. And there was no language saying it’s okay for states to let parents opt-out of testing. (That was added to the House bill, to win support from conservatives.)

At the time, Harkin (who some folks say isn’t the ace negotiator his successor, Sen. Patty Murray, D-Wash., has been) really, really wanted to get the legislation done. But he was bummed out that he’d offended his long-time supporters in the disability community. The final nail in the bill’s coffin came when Harkin took to the floor and said he wasn’t going to try to move it forward because the process in the House was too partisan.

Flash forward four years later, and that’s still true. But the Senate, now in Republican hands, went ahead anyway.

Even with the GOP controlled House and a GOP-only bill, the politics in 2011 were more favorable for Duncan and the civil rights community than they are now. The House bill was sponsored, then as now, by Rep. John Kline, R-Minn., the chairman of the education committee. One key difference: At the time, Kline supported teacher evaluation via test scores—which only could have helped the policy get into the bill in some form in a potential conference committee.

What’s more, the top Democrat on the panel was Rep. George Miller, D-Calif., an accountability hawk’s accountability hawk and a widely respected Capitol Hill veteran. It’s unlikely a final bill would have gone as far as Miller and the civil rights community wanted, but it would probably have been gone further on accountability than the bills under discussion now.

That’s not just because of Miller. Obama and Duncan both had a lot more political capital back in 2011.

And NCLB waivers had been announced, but states hadn’t gotten them yet. They were still a theoretical idea and a potential catalyst to move Congress along. They hadn’t lost their political luster, taking teacher evaluation, Common Core, and even testing along with them.

Back in 2011, too, Washington-edu insiders got a glimpse of what was to come when the National Education Association and Republicans teamed up to scotch teacher evaluation requirements, originally included in an earlier version of the Harkin-Enzi legislation, from the bill. (They also got the administration’s turnaround models stripped out—cue the “hug heard round the world.”)

The meeting of the minds between Republicans and the school groups, both of which want a smaller federal role in K-12, has been a theme of this year’s (way more successful) reauthorization efforts.

This time around there seems to have been a wholly different calculation in the civil rights community, at least publicly. They haven’t run out and dumped cold water all over the bill, like they did in 2011. Instead, they’ve been working behind the scenes with lawmakers to beef up accountability ... but the ultimate result could very well still not be as strong as on protections for traditionally overlooked kids as the 2011 legislation that they hated so much.

(Why? This gets wonky, but in a nutshell, even if the accountability provisions end up in a similar place, the secretary may have limited authority to enforce them if states don’t keep up their end of the bargain.)

So why have the administration and the civil rights community played ball time around? The federal role in accountability has only been diminished with each successive rewrite. And it could be that the next thing to go, if this year’s renewal effort fails, would be annual testing. (That was actually on the table, early on, this time around.)

And since accountability hawks—and the Obama administration—know they can’t ring up Doc and steal plutonium from some Libyans... they may have decided to proceed carefully at this point.

Christopher Lloyd, left, as Dr. Emmett Brown, and Michael J. Fox as Marty McFly in the 1985 film, “Back to the Future.” Wednesday’s so-called “Back to the Future” Day marks the date: Oct. 21, 2015, that characters McFly, Brown, and Jennifer Parker famously journeyed to the future in the film trilogy’s second installment in 1989. In recognition of the day, Austria’s transport ministry is ready with guidelines for hoverboards, and has issued tongue-in-cheek rules on their use to mark “Back to the Future” day.
--Universal Pictures Home Entertainment/AP-File

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