On Friday, Obama and Education Secretary Arne Duncan are scheduled to detail plans to waive some of the law’s toughest requirements, including that schools ensure that every student be proficient in math and reading by 2014 or risk escalating sanctions.
In exchange for relief, the administration will require a quid pro quo: States must adopt changes that could include the expansion of charter schools, linking teacher evaluation to student performance and upgrading academic standards. As many as 45 states are expected to seek waivers.
For many students, the most tangible impact could be what won’t happen. They won’t see half their teachers fired, their principal removed or school shut down because some students failed to test at grade level — all potential consequences under the law.
“It’s a momentous development,” said Jack Jennings, president of the nonpartisan Center on Education Policy. The White House is essentially rewriting the law, he said.
Duncan said the administration has no other choice, driven by mounting pressures on schools caused by the law and no clear sign that Congress will fix its flaws. Lawmakers have been trying for four years.
“I feel compelled to do this,” Duncan said as he rode a bus two weeks ago to tour schools in Michigan, Wisconsin, Pennsylvania and Ohio, among other states. “My absolute preference is for Congress to fix it for the entire country. But there’s a level of dysfunction in Congress that’s paralyzing. And we’re getting to the point that this law is holding back innovation, holding back progress. We need to unleash that. We need to get out of the way.”
For Duncan, one of the most visible members of Obama’s Cabinet, the move is likely to cement his reputation as arguably the most powerful education secretary in the department’s history.
Duncan already has propelled school systems across the country to make far-reaching changes by awarding a record $8 billion, provided by the economic stimulus package, to states and districts that embraced Obama’s agenda.
Even states that didn’t win money through the best-known of those programs, called Race to the Top, changed policies and laws to compete for the funds.
Duncan “walked into office and was handed a big pot of money and very few congressional restrictions,” Jennings said. “Congress went off and got into health reform, the budget, all these other issues that sucked up their attention. He was left alone with his money and took advantage of the opportunity. Now he’s got another opportunity.”
Some say the administration is reaching too far.
“This is all top-down stuff,” said Rep. John Kline (R-Minn.), chairman of the Committee on Education and the Workforce. His own state is likely to seek a waiver. Duncan, he said, is “using the simple power to grant waivers and expanding it to say, ‘I will grant you waivers in exchange for changing public school policies to something that I would like.’ And there’s a growing sense that he really doesn’t have the authority to do this.”
No Child Left Behind allows the education secretary to waive “any statutory or regulatory requirement” of the law. It says nothing about the authority to set conditions for those waivers.
Sen. Marco Rubio (R-Fla.) has accused the White House of violating the constitutional separation of powers. And Sen. Lamar Alexander (R-Tenn.), a former education secretary, filed a bill to restrict Duncan’s ability to issue waivers.
“He’s acting as the superintendent for the country,” said Daniel A. Domenech, executive director of the American Association of School Administrators, which wants Duncan to issue waivers to every state without strings attached.
While the conditions for waivers won’t be spelled out until Friday, Duncan has said he wants states to adopt academic standards that will prepare high school graduates for jobs and college; measure teacher performance in part by how much students grow during the year; and make “robust” use of data to track learning, among other things. Historically, the federal government has left such decisions to states and local communities.
“It’s a very clever way to manage a political crisis that is not of his or the president’s making,” said Chris Cerf, acting schools commissioner under New Jersey Gov. Chris Christie (R). His state intends to apply for a waiver.
A number of states are already in sync with the administration’s goals.
“I support the idea of waivers, because we think the way to assess a school is not solely through testing and proficiency,” said Wisconsin Gov. Scott Walker (R), who met with Duncan at a Milwaukee school two weeks ago. “Overall, the reforms [Duncan] is looking at are really similar to what I’m looking at. What he’s saying makes sense. We would be moving toward these changes even if the waivers came without conditions.”
In the Washington area, Virginia intends to seek a waiver, while officials in Maryland and the District want to see the conditions first.
When Congress passed No Child Left Behind in 2001, it marked a bipartisan effort to hold schools accountable to parents and taxpayers and a federal commitment to attack student achievement gaps.
For the first time, the law required schools to test all children in grades 3 through 8 and once in high school and report results by subgroups — including race, English learners and students with disabilities — so it was clear how every student was faring.
The law required states to set goals for improvement and make steady progress toward them, including the expectation that all students tested show proficiency in math and reading by 2014. Advocates of the law say it provides plenty of leeway for schools to meet annual goals.
Still, No Child Left Behind places a premium on test results. If a student enters fourth grade reading at a first-grade level and improves during the year to read at a third-grade level, her score counts as failure under the law because she is not reading at a fourth-grade level. “Instead of getting rewarded for helping that child leap two grade levels, the school gets punished,” Duncan said.
Schools that fall short year after year can face significant penalties, such as requirements to provide free tutoring, replace staff or even shut down to reopen as a charter school. Duncan has warned that more than 80 percent of schools could be labeled as failing next year, although some experts question that figure.
Many educators say the pressure of trying to reach full proficiency has created an unhealthy focus on standardized tests, with continual drilling in the classroom and a narrowing of curriculum to focus on math and reading.
“Teachers see courses in arts disappearing, courses in civic education, science, history — all those things have been diminished,” said Dennis Van Roekel, president of the National Education Association, the nation’s largest teachers’ union.
The law’s weaknesses have undermined education reform, Duncan said. Because No Child Left Behind allows states to create their own standards and measures of proficiency, nearly one-third “dummied down” standards to inflate test scores, according to a 2009 Education Department study.
Tennessee, for example, was posting scores that showed 91 percent of its students were proficient in math. After it recently raised standards, that figure fell to 34 percent, Duncan said.
On Capitol Hill, talks between Republicans and Democrats on rewriting the law have floundered. It appears unlikely Congress will pass comprehensive reform any time soon.
Kline plans five bills to revise the law. One, promoting expansion of quality charter schools, passed last week with bipartisan support in the House.
Sen. Tom Harkin (D-Iowa), chairman of the Committee on Health, Education, Labor and Pensions, said that he expects to file a bill by October but that progress has been bogged down by “leadership on the Republican side that doesn’t want to give anything to Obama to sign.”
Rep. George Miller (Calif.), the ranking Democrat on Kline’s committee, said: “When you look at the congressional timetable, the presidential timetable and the political divisions that now exist, it’s getting very late to navigate that minefield.”