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The 'Civil Rights' Education Agenda Inadvertently Showed Why Federalism Matters

For the next few weeks, Rick will be out and about discussing his new edited volume, Bush-Obama School Reform: Lessons Learned. While he's away, several of the contributors have agreed to stop by and offer their reflections on what we've learned from the Bush-Obama era. This week, you'll hear from Josh Dunn, a professor of political science at the University of Colorado—Colorado Springs. He'll be discussing the implications of the Bush-Obama emphasis on school reform as a civil rights issue.

In our system, implementing national policy is made even more difficult when you have to depend on state agencies, school boards, principals, and teachers far removed from Washington. Just because you can bribe or blackmail states into adopting Washington's policies doesn't mean that you can make them do so effectively.

This is true in many areas, not just education. For example, Washington used grants to induce every state into setting a 55 mile-per-hour speed limit but it couldn't make the Montana Highway Patrol vigorously enforce such a stupid rule for a large western state. Similarly, the national government could not control how enthusiastically or not states and school districts implemented No Child Left Behind (NCLB), Common Core, and Office for Civil Rights (OCR) Dear Colleague Letters (DCLs).

The problems created by these policies point to the second lesson of Bush and Obama's "civil rights" education agenda. Federalism still matters. Ignore at your peril.

Two obtuse and inflammatory comments by Margaret Spellings and Arne Duncan illustrate the near total lack of concern for federalism during this period.

In 2005, Spellings chastised the state of Connecticut for being "un-American." Connecticut had the temerity to request a waiver from NCLB's yearly testing requirement for grades 3-8 since it already tested every other year. It wasn't sure that doubling its testing requirements would actually be educationally productive. Spellings bristled, saying that NCLB was designed to close the achievement gap between white and black students, so anyone disagreeing with its requirements was practicing the "soft bigotry of low expectations." Naturally, Connecticut officials resented being accused of trying to perpetuate the achievement gap.

Then, in 2013, Duncan said it was "fascinating" that some Common Core opponents were "white suburban moms who—all of a sudden, [learned] their child isn't as brilliant as they thought they were, and their school isn't quite as good as they thought they were." Alternatively, perhaps these parents just thought the onslaught of testing unleashed by Common Core was educationally counter-productive.

These statements were a direct result of policy choices being framed as civil rights programs. Niceties like federalism and what parents want shouldn't get in the way of protecting students' rights. Hence, policy disagreements weren't just policy disagreements. Instead they were Manichean struggles between the forces of good and evil.

Since NCLB was constructed with little thought about the preferences of states and school boards, none of this is surprising. And since the practical question of how to implement it in a decentralized federal system was ignored, it proved unworkable in practice. However, instead of causing a chastened federal government to reconsider, it led to even more intrusion into the authority of states and school districts. After all, when policies are framed as civil rights programs you can't just abandon them. The failure became the pretext for more heavy-handed federal action which created more animosity toward the federal government.

NCLB also set the stage for aggressive OCR action during the Obama administration. NCLB's wildly implausible requirements created the conditions for the department to issue a slew of arbitrary and unlawful waivers nationalizing education policy even more. The strained readings of NCLB were then mirrored by the strained readings of other federal statutes in DCLs. Aggressive, unilateral, legally dubious action became standard operating procedure. After launching its regime by waiver, the agency was emboldened to expand its policy-making adventures. NCLB had created the perception that remedying unequal outcomes was within the authority and ability of the federal government. In short, aggressive, poorly constructed federal education policy led to more aggressive, poorly constructed policy.

Perhaps it is not surprising that the federal government would believe that framing education reform as a civil rights initiative is the key to success. After all, desegregation was the preeminent example of national reform of local schools. But that ignores the fact that segregation was an obvious civil rights violation where not having a federally approved testing regime seems like, well, not so much of a civil rights violation. At the least, it lacks the same moral urgency of desegregation.

Desegregation then is really the exception that proved the rule that education still largely remains the province of state and local governments. Attempts to force reform on them without adequate buy-in are doomed to failure. As a chastened Lamar Alexander put it, dictating reform from Washington "actually creates a backlash, making higher standards more difficult to hold onto and teacher evaluation systems more difficult to create because of all the anger . . . It's just not the way you make permanent improvements in 100,000 public schools. The community has to own the change. The teachers in the school have to own the evaluation system and believe it's fair or it'll never work." It's almost like the Constitution matters, isn't it?

Josh Dunn

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