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A Checklist for Fixing ESEA

Things are moving rapidly here in DC. Yesterday, on a 218-213 vote, the House narrowly passed the Student Success Act. I think this is a terrific development, as I think the SSA represents a massive improvement over the status quo. Meanwhile, the Senate continues to debate the Every Child Achieves Act, and there's every indication that Senator Alexander will be able to get the Senate to pass it. Now, getting from this point to a signed law remains a hell of a lift—but the fact that things have gotten so far is a credit to Alexander, House education chair John Kline, Democrats like Senators Patty Murray and Michael Bennet, and the bipartisan fury at Secretary Arne Duncan's imperious reign. Amidst all the Beltway chatter, and with amendments flying hot and heavy in the Senate, it's easy to lose sight of the forest for the trees. So, let's take a moment to focus on the big picture and sketch a simple checklist of what it would mean for a final bill to "fix" NCLB.  

In 1965, as part of President Lyndon Johnson's War on Poverty, Congress passed the Elementary and Secondary Education Act (ESEA). Johnson rather grandly suggested that ESEA would boost the achievement of disadvantaged students, helping to break the cycle of poverty. ESEA failed to deliver on that promise. No one knew whether federal money was doing any good, even as rules, regulations, and bureaucracy proliferated. Meanwhile, schools found it all too easy to overlook or ignore disadvantaged students.

In 2001, President George W. Bush and key congressional Democrats wanted to ensure that federal funds were being used effectively and that these children would no longer be overlooked. Bush's administration rapidly issued a 28-page blueprint to reauthorize ESEA as "No Child Left Behind." His blueprint embraced transparency, testing and accountability; expanded parental choice; and made room for states to experiment with teacher pay and regulatory reform. Needless to say, the bipartisan No Child Left Behind Act that eventually passed the House and Senate bore little resemblance to that initial blueprint. Instead, the final bill was highly prescriptive about how states would measure school performance and what states needed to do to schools deemed "in need of improvement." In an absurd twist, NCLB required that 100% (!) of the nation's children be "proficient" in reading and math by 2014, with mandated consequences for "failing" schools (which, by now, are most of the nation's schools). The law also tacked on the misbegotten "Highly Qualified Teacher" (HQT) provision, which mostly amounted to pointless new paperwork for states and schools.

Ultimately, NCLB allowed the Obama administration to dictate K-12 policy via quid pro quo waivers granted to states desperate to escape NCLB's "100%" mandate. The Secretary of Education released dozens of states from NCLB's fantasy targets if—and only if—they promised to pursue Obama priorities. Now, the thing is, Washington doesn't run America's schools. All it can do is pen rules for schools. Congress can do little more than enact laws that tell federal bureaucrats to write rules for states, which write rules for school districts, which give directions to schools. Washington can force states and districts to do things, but it cannot make them do those things well. But when it comes to complex enterprises like public schooling, whether things are done often matters far less than how they are done. 

If the U.S. had a national education system like in France (or Cuba), our education debate would be quite different—for better or worse. But, in our federal system, grand calls for Washington to "fix" schools inevitably boil down to new funding formulas and mandates. The federal government can't fix schools (and shouldn't try), but it does have a supporting role to play. Here's what my checklist looks like when it comes to seeing if a reauthorized law will hew to that role:

Embrace transparency: For all its flaws, NCLB does have one invaluable legacy. By requiring states to test in the same subjects and grades, Congress created a framework for the public to see how schools are doing. Setting forth this kind of framework is entirely consistent with Congress's responsibilities under the "weights and measures" provision of the Constitution. Moreover, data reporting and analysis pose minimal implementation headaches, do not involve the feds in dictating practice or monitoring compliance, and equip the public to set priorities and make decisions. Washington should continue to require annual testing and reporting in reading and math, with results broken out by NCLB-denoted subgroups. It also can and should continue to use NAEP to calibrate and compare results across states—and illuminate those that are playing games.

End federal efforts to dictate school improvement: While embracing transparency, Washington should end NCLB's policy of trying to determine which schools are not making "adequate yearly progress" and mandating federal interventions. States may do an imperfect job of flagging troubled schools, but it's now clear that Washington is no better at this work. The requirements of crafting a national law that can apply to 100,000 schools in 50 states means the metrics are inevitably going to be crude, clumsy, and applied in capricious ways. And, unlike when state and local leaders create targets, Washington is not held accountable for meeting them. Mayors, superintendents, principals, and CEOs set targets and then are held responsible for meeting them. This encourages them to set targets that are realistic and to take ownership for the consequences. When Congress or the Secretary of Education decide that they're going to "hold states accountable," nothing like this applies. It's just a bunch of politicians and bureaucrats saying what they'd like to see happen—which is how we end up with ridiculous, counterproductive targets.

Stop federal involvement in the Common Core: Through Race to the Top and ESEA waivers, Secretary of Education Duncan has worked assiduously to encourage states to adopt the Common Core and its associated tests. This has lent the Common Core the imprimatur of a quasi-federal initiative and made it more divisive than it needed to be. Reauthorization of ESEA should take the Common Core off of the federal table. The House and Senate bills both currently do just this, making clear that no federal official or employee should seek to "mandate, direct, or control" instructional content, academic standards and assessments, curricula, or programs of instruction.

Make it easier for states to expand school choice: As states increasingly adopt choice-based models, ranging from Nevada's Education Savings Accounts to Louisiana's "course choice" programs, Congress should adapt funding requirements to ensure that federal funds serve the intended beneficiaries without tying states' hands. One sensible move is to embrace full Title I portability, so that states can use federal funds to help low-income students attend the district, charter, or private school of their choice.

Get the feds out of the teacher business: The Highly Qualified Teacher provision was a well-intentioned mistake. There's no constructive way for federal lawmakers to issue guidelines for judging whether three and a half million teachers are good at their jobs. The inevitable result is little more than new rules, paperwork, and bureaucracy. Coupled with Duncan's boundless view of the federal role, HQT led to a raft of not-ready-for-primetime teacher evaluation systems. The answer here is simple. Congress doesn't even try to tell the U.S. military or the Justice Department how to determine who is a qualified soldier or public attorney, or how to evaluate them; it leaves that judgment to the professionals. The same rule should apply many times over when it comes to educators who don't even work for the federal government.

Get out of educators' way: Federal statutes have spawned a paralyzing web of rules, regulations, and mandates that hamper teachers, principals, and schools. They have also created tangles of duplicative programs. Federal guidance can make it illegal for districts to cut spending (even when it's no longer productive), prohibit funds from being shared across schools and programs in sensible ways, and create immense paperwork burdens. Congress should seek to eliminate or consolidate programs whenever possible. It should also instruct the U.S. Department of Education to examine federal regulations, state education agency interpretations of federal rules, and related minutiae in order to generate a list of recommendations to reduce the burdens on schools, school systems, and educators. This should particularly address issues like "supplement not supplant" and "time and effort" reporting requirements.

Facilitate school district bankruptcy: Congress can help free local leaders from the burden of bad decisions made long ago. In the private sector, when legacy decisions leave enterprises ill-equipped to compete, they're given a chance to reinvent themselves via bankruptcy. School system leaders lack similar options. Every bad contract provision a superintendent ever accepted and every inane school board policy remains in effect unless actively reversed. Political and legal, or contractual, constraints can make that impossible. The Constitution vests Congress with the authority to set a uniform bankruptcy code. Chapter 9 bankruptcy allows municipalities to revisit existing contractual obligations, yet changes to Chapter 9 have made it largely irrelevant for most of the nation's school districts. Congress should adopt a bankruptcy-like mechanism that permits school districts to petition for relief from vendor agreements, contractual obligations, and other impediments that constrain their efforts to improve schooling. 

After the excesses of the past decade, we should be wary of claims that "the federal government is here to help" improve K-12 schooling. But the alternative—denying that Washington has any role to play—is insincere and counterproductive. By cutting red tape and promoting transparency, Congress can help equip parents, voters, taxpayers, and public officials to do the real work of school improvement. When scored against that sensible set of goals, both the Student Success Act and the Every Child Achieves Act (at the moment) post high marks. The SSA fares moderately better, but both bills easily clear the bar. That offers cause for optimism. Learning the right lessons from NCLB, the House and the Senate both are seeking to preserve what it got right and fix what it got wrong. Both the SSA and the ECAA are smart, constructive bills that hold out the promise of helping to get the federal role right when it comes to America's schools.

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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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