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Diffusing the NCLB Bomb: A Final Conservative Federal Education Expansion

Today was inevitable, really. And, everyone knew it. Washington's plan was simply untenable. It could never work the way it was written. 

(No, not referring to the debt crisis and downgrade and, well, the plunge today (don't get me started, just go here, please)).  

Everyone knew NCLB's accountability provisions were a ticking bomb. They were never going to work. While some speculated that the bomb was intentional to blow-up public schools in favor of private and other options, that there was a hidden bomb in NCLB was unquestioned by even those with cursory knowledge of the law. 

Lately states, such as mine, were getting tired of the inevitable countdown to 0 (as in the total number of passing schools on the accountability indexes). The grumbles were growing louder, yet nothing happened in Washington (they were too busy messing with our credit score). In reality, there was never so much as serious talk of a NCLB reauthorization timetable. Reauthorization may still be two or more years away and by then the bomb might actually explode. 

So, today, the U.S. Department of Education took a big step. A unilaterial step. Perhaps an unauthorized step. Relevant quote:

The administration’s plan amounts to the most sweeping use of executive authority to rewrite federal education law since Washington expanded its involvement in education in the 1960s. 

This is a complicated issue, so please don't think we are going to cover it all in this blog post. But, there are a few critical factors worth explaining:

1. This limits the role of the federal government. States, like Kentucky, will probably get to write their own accountability systems again. This brings the federal role more in line with the Tenth Amendment and the general concept of federalism in education. 

2. This expands the role of the federal government. Yes, contradictory I know. Even though an individual state will get to write their own plans, the federal government has sign-off authority. As was shown with Race-to-the-Top, the Feds are not above using that kind of authority for coercion. Already in their public statements on this change, it is very clear that this will be a coercion mechanism to get the kind of reform Washington wants. Coercing states is more in line with the spending power of the Constitution, but much less in line with the Tenth Amendment.  

3. The biggest expansion of the day, though, was of the power of the U.S. Department of Education. They are now front and center for education reform in this country. Many would argue (probably including me) that this is not their place not only under the Tenth Amendment, but also under generally understood principles of administrative law authorized by Article II (today was a possible infringement on Article I (ultimately, Article III might have to resolve this ... confusing enough for you?)). 

What does all this mean? I don't know. The federal role in education is probably expanding, but it is doing it through the back door. As such, few people are really noticing and those that do have few options because they are already in the house. Federal expansion is a bit of a bell that cannot be unrung. That the federal role is expanding ... is likely inevitable. Today was just a different route toward doing so that positioned the Department of Education (and not Congress, nor the States) as the central accountability mechanism for education in the United States. 

That they expanded today by actually helping states diffuse the bomb ... was creative and interesting. Because of that, a serious constitutional challenge might be avoided. In the next few weeks, we will likely see bills filed in Congress and new committee hearings and some pomp and circumstance against this - but, I would be surprised if this plan is not implemented and that this is not the framework for a reauthorization, whoever gets elected president next time. 

So, today the NCLB Bomb was largely diffused. Good. It needed to be. But, in doing so, the federal government's role was expanded once again. A final, ironic chapter in the conservatively sponsored NCLB Act.

Reader Comments (3)

Good post! I agree with your analysis. The federal government's expansion is on shaky ground constitutionally, but personally I support it. I believe it's in the best interest of the nation. In the long term (but maybe not too long) I believe we will be considering an education amendment to the US Constitution. I think it's quite likely that an education showdown of sorts could be coming in the not so distant future.

August 9, 2011 | Unregistered CommenterWayne D. Lewis

The education amendment is not possible. They have been filed in the past, but not gained traction. The serious problem with an education amendment, and the reason I do not see it happening anytime soon, is what happened over the last few days with the economy and debt crisis ... there is simply no way to pay for it without radically restructuring the tax system. 50 million K-12 students, 3 million K-12 teachers ... a $600 billion pricetag for K-12. Throw in another 350 billion for higher education subsidies, and another 50 billion for related things ... and public education is a trillion dollar enterprise in the U.S. Even assuming the local share doesn't change (which I doubt), and the states and Fed would share the remaining cost 50/50, we are still talking about more than tripling the federal costs ... and that would be a best case, miraculous scenario in my opinion, more likely would be something like 5x current expenditure, to like $250 billion or so for K-12 and another $150 billion or so in higher education subsidies. Congress almost brought the country to a halt because they couldn't agree on $20 billion in cuts in the last month. Where in the hell are they going to find an extra $400 billion? Short answer, of course, is that they can't. And, I don't think they can pass an education amendment without it, as the States are highly unlikely to ratify without shifting the funding burden to the federal government. Something about "we're going to make all the decisions now, but you are going to continue to pay" ... just doesn't sound like a good deal, I'm afraid. Oh, and by the way state legislatures, you main job is now highways, family services and tourism promotion things like state parks. Not quite irrelevant, of course, but not where big decisions get to be made anymore.

I just don't see it. There would need to be a coordinated revolution of some sort to get 3/4 of states to sign off on handing over their most important job to the federal government.

August 10, 2011 | Unregistered CommenterJustin B.

I think you're assuming that the content of the amendment would give the the federal government total responsibility for public education. I don't see that happening either. What I think is much more likely is an amendment giving clearer justification than the General Welfare Clause for the realm that the federal government already operates in. I can see within the next ten year a proposed education amendment that would firmly establish the federal government's role (through the US Department of Education ) as THE regulator of public education; a role which they are already beginning to play. Yes, states would continue to have primary responsibility for their own systems, but piss poor systems would no longer be tolerated. States could lose the privilege of running their own education systems.

Here's one possibility: Okay South Carolina (sorry SC, purely hypothetical!), we see that you don't like to educate kids. Well, how about we take that responsibility away from you? We'll give you a year to turn this ship around or we'll accept proposals for someone else to educate your kids. Maybe we'll let the Vermont Dept of Education come and educate South Carolina kids. Maybe we'll let Clemson do it. Maybe we'll let the University of Kentucky do it. Maybe we'll let KIPP do it!

Back to the education amendment:

What might be the impetus for it? The same thing that's been the impetus for other major movements of the federal government into public education; national security. In won't be very long before most of America gets the same feeling that we got looking across the Huangpu River looking at the Pudong skyline. At that point I don't think a majority of Americans are going to be okay with leaving the nation's future in the hands of states that may or may not have the will and/or resources to create and maintain world-class education systems.

We're asking our schools to do something now that we've never asked them do before; educate everybody. As we're seeing, some states are up to that, and others are not. With America's future on the line I don't think people will be willing to accept that.

Anyway, we have this conversation documented so we can look back at it in the years to come. Glad you're back to blogging!

August 10, 2011 | Unregistered CommenterWayne D. Lewis
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