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Oklahoma’s public schools are starting the year in legal limbo

Kelci Gouge teaches a third-grade class at a summer reading academy in Oklahoma City. (AP/Sue Ogrocki)

As the new school year starts around the country, educators and students in Oklahoma are caught in the middle of a dispute between the U.S. government and the state's lawmakers over what to teach in their classrooms and how.

Since state lawmakers threw out the Common Core standards earlier this year, the state of Oklahoma has been at risk of losing its protection from strict requirements in the Bush-era No Child Left Behind law, which mandated that if every student was not proficient in math and reading by this year, schools would risk losing federal funding.

The state missed a deadline set by the administration for certifying standards to replace Common Core, and on Thursday, the Education Department denied Oklahoma's application to renew a waiver from the law.

Republicans shot back at the administration. In a statement, Gov. Mary Fallin called the decision "outrageous."

"Because of overwhelming opposition from Oklahoma parents and voters to Common Core, Washington is now acting to punish us," Fallin said.

"The situation leaves our public school educators more confused and concerned than ever about the future of their students, their jobs and their schools," said Linda Hampton, president of the Oklahoma Education Association, a union representing almost 40,000 teachers.

What happens now? The state will have to set aside money for tutoring and busing for students attending schools that aren't meeting the requirements of No Child Left Behind and who wish to transfer elsewhere, starting a year from now. Administrators are working to determine which schools are failing -- the state Department of Education estimates that there will be more than 1,600. Some schools could be required to replace staff, said Kerri White, an assistant state superintendent.

In the meantime, Oklahoma might be able to regain its waiver by certifying a set of standards to replace Common Core, but until then, teachers won't know what they're required to be teaching.

Three years ago, it appeared that four in five schools nationwide would fall short of the law's requirements. In response, the current administration has essentially suspended the No Child Left Behind law by waiving its requirements in almost every state.

The administration didn't just waive the requirements, though. Education Secretary Arne Duncan announced that in order to receive and retain a waiver, states would first have to show that they had adopted rigorous standards for educational achievement, among other conditions. That was no obstacle for those that had subscribed to Common Core, an initiative on the part of state governments to create the first nationwide set of academic standards for public schools.

But now, after tossing out Common Core, the state of Oklahoma must comply with No Child Left Behind. After Washington, Oklahoma is the second state to lose its waiver.

Derek Black, a law professor at the University of South Carolina, argues that the administration's use of sanctions on schools as a threat to force states to comply with its education policies is unconstitutional, argues

It is true that the Congress gave the secretary of education the authority to waive the requirements, Black writes in a paper he posted online last week. Yet Congress can't have anticipated that the secretary would use that authority to effectively rewrite the law by waiving the requirements for all the states and granting waivers only on the condition that states implement a completely different agenda.

Even if Congress did want to grant the secretary that discretion, Black argues the constitutional principle of the separation of powers would have forbidden it. Congress can't surrender its legislative authority to the executive branch, Black writes.

Black also raises other constitutional concerns. In its ruling on the Affordable Care Act (also known as Obamacare), the Supreme Court placed limits on the federal government's ability to force states implement its policies by withholding money or imposing other sanctions.

Black, who was a member of Obama's transition in 2008, describes himself as a liberal and a supporter of the administration. He generally feels that the federal government should be more involved in the public schools, said he was conflicted about making his views public. He also does not blame the administration for its actions. In his view, the fault lies largely with Congress, which failed to solve the problems it created by passing No Child Left Behind.

"The administration was in a difficult situation," Black told me. "It had to come up with a solution." 

Max Ehrenfreund writes for Wonkblog and compiles Wonkbook, a daily policy newsletter. You can subscribe here. Before joining The Washington Post, Ehrenfreund wrote for the Washington Monthly and The Sacramento Bee.



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