Long Road to Reform
Negotiators Forge Education Legislation

By David S. Broder
Washington Post Staff Writer
Monday, December 17, 2001 12:00 AM

At 6:30 a.m. on Nov. 30, Sen. Edward M. Kennedy (D-Mass.) was awakened by a phone call from a staff member bringing bad news. Aides to the "Big Four" lawmakers negotiating the final version of President Bush's ambitious education bill had broken up in disagreement, and the House-Senate conference committee meeting scheduled for later that morning was in jeopardy.

By 8 a.m., Kennedy was in a small room deep inside the Capitol, along with Sen. Judd Gregg (R-N.H.) and Reps. John A. Boehner (R-Ohio) and George Miller (D-Calif.). The four, along with White House aides Margaret Spellings and Sandy Kress, had met nine times since mid-September and thought they had worked out all the major issues on testing, accountability, teacher quality and financing that would, they hoped, make the federal government's biggest education program more effective in boosting the performance of America's schools.

That morning, they were hung up on a seemingly small point: whether religious and community groups should have to follow civil rights laws when hiring employees for after-school and summer educational programs.

Boehner, the chairman of the House-Senate conference and a chain-smoking, intense legislator who in the mid-'90s was a ringleader in the conservative drive to eliminate the Department of Education, was determined to pass a bill that, he acknowledged, would significantly increase the federal role in local schools.

When the four-way talks bogged down, Boehner asked the two Democrats to move to another office while he and Gregg, the self-described "conservative anchor" in the negotiations, worked on language. Ordering a one-hour postponement in the full conference, Boehner shuttled back and forth between the two rooms until a compromise was reached.

It almost fell apart again this past Wednesday night in a lawyers' quarrel, but it was patched together in time for the House to pass the conference report Thursday by a 381 to 41 vote. An equally lopsided result is expected in the Senate this week, setting up a pre-Christmas signing ceremony for a measure that has been at the top of Bush's first-year agenda, right along with tax cuts.

As always when final passage comes easily, it may seem in retrospect that success was guaranteed. It was not. "It took an extraordinary confluence of circumstances and personalities to bring this about," said one person involved in the process.

This is a partial account of how the landmark legislation managed to survive intensive lobbying pressures and deep suspicions harbored by many in both parties, as well as a political upheaval in the Senate and the outbreak of a war on terrorism. It is also a story of how longtime antagonists managed to adjust their views and mend their personal relationships. Without such movement, particularly by Kennedy and Bush, what may well be the most important piece of federal education legislation in 35 years would not be on the brink of becoming law.

Called "The No Child Left Behind Act," paying homage to Bush's campaign slogan, the measure, along with its accompanying appropriation, would significantly boost federal school dollars. It would also target money to poor students and to struggling schools more directly than ever before. It would require them to track performance by giving students annual tests from third through eighth grade. To hold educators accountable, test results would be tracked from year to year and reported to parents. The results would also be broken down by race, gender and other criteria to let authorities know if any small group of students was failing.

States would set their own performance standards, but they would also be assessed in biennial national exams. By 2005, they would be required to show that every classroom teacher was fully qualified. They would have to show within 12 years that every student either meets state standards or is receiving extra help. The bill would also create a program aimed at ensuring that every third-grader in America can read well.

A Slumbering Giant The Elementary and Secondary Education Act, for 35 years the giant of federal school programs, was due for renewal in 1999 but fell victim to pre-election posturing and bitter partisanship in the last Congress. Bush, who had made school reform a signal cause as governor of Texas, breathed new life into the effort by putting more emphasis on education in his campaign than any previous Republican presidential candidate had done.

But even after the House and Senate passed differing versions of the bill last spring, it was not certain to become law this year. The White House realized by the time conferees began meeting in July that neither bill was workable. And, as White House aide Kress, a Democrat who had helped Bush on the Texas school improvement efforts and who had followed him temporarily to Washington, acknowledged last week: "On September 10th, I was the most discouraged I had ever been. Inertia had taken hold. Another school year had begun without any change in federal policy. The partisan atmosphere on Capitol Hill was awful."

Bush was in a Florida classroom, trying to revive public support for his faltering school initiative, when he received word of the Sept. 11 terrorist attacks.

The start of the war on terrorism proved an unexpected tonic for education reform. The very next day, the four conference leaders issued a joint statement pledging to move ahead. "I think they saw it as a way they could demonstrate to the country that Congress had not been immobilized," said Spellings, the other White House aide.

Earlier, there had been another upheaval -- this one political. While the bill was on the Senate floor, Sen. James M. Jeffords of Vermont, chairman of the Health, Education, Labor and Pensions Committee and the measure's floor manager, quit the Republican Party to become an Independent, throwing control of the Senate to the Democrats and making Kennedy the new chairman.

The change was a boon for education reform. A senior administration official, insisting on anonymity, said: "When Kennedy took over, we were dealing with a consummate professional and a great staff. They have been terrific."

The White House enthusiasm for Kennedy is in sharp contrast to its attitude a year ago, when the senator was conspicuously excluded from a Dec. 21 meeting on education reform that the president-elect held in Austin for other key congressional players. No administration official that was interviewed wanted to explain why Kennedy was not invited.

"I was the odd man out," a laughing Kennedy said the other day, "and I've reminded them regularly that I need a lot of hand-holding." He and Bush talked by phone before the inaugural ceremonies. At the luncheon after the swearing-in, former senator Alan Simpson of Wyoming, a friend of both men, pulled Kennedy up to Bush and told the president, "He [Kennedy] is an ornery S.O.B., but you can do business with him."

Two days later, when the senior members of the education committees were in the Oval Office, Bush and Kennedy sized each other up and decided they could work together. Kennedy recalls that Bush "said he was strongly committed to seeing the neediest children get the benefits of these reforms . . . and he was prepared to take on the forces in Congress and among the governors who just wanted to spread the money around."

"I saw a real opportunity for common ground," Kennedy said.

Bush also told Kennedy that the reporters waiting outside the White House would certainly try to get the senator to say that the vouchers Bush had endorsed -- using public funds to send students to private schools -- were a deal-breaker. Kennedy replied that he would say he saw no issues that could not be negotiated. When he kept his word, Bush told aides he was reassured.

But the White House was still worried that the Senate's evenly balanced education committee, on which Jeffords often sided with the liberal Democrats, would produce a bill too far left for Republicans to support. So the administration opened a back channel. Gregg, second to Jeffords in Republican seniority, began meeting with such centrist Democrats as Sens. Joseph I. Lieberman (Conn.) and Evan Bayh (Ind.) to produce a bill more to Bush's liking.

Lieberman and Bayh had won only 13 votes the year before for their "Three R's" bill, which combined a big increase in school funding with stiffer accountability measures. Bush's staff liked their ideas enough that many were borrowed for his campaign speeches. And, as Lieberman remarked the other day, "having 13 votes in an evenly divided Senate meant we would be taken seriously."

At some point last winter, Kennedy became aware of the back-channel meetings and, Gregg surmises, "decided he was not going to let Lieberman and Bayh take control of the process."

"We thought he would be a problem," Gregg said, "but we hadn't read him correctly. Being the consummate legislator he is, he co-opted them and put himself in play."

He did more than that. As numerous compromises were negotiated, Kennedy was criticized by education groups to whom he had long been a hero. An education lobbyist remembers that at one gripe session, just before the Senate took up the bill, "Kennedy just read us the riot act. 'You may not have noticed,' [Kennedy] said, 'but we don't control the White House, the Senate or the House. I'm doing my best, but I'm not going to let you stop this.' "

Kennedy even came up with a drastically scaled-down variant of a Republican proposal -- known as the "Straight A's" plan -- to convert most federal school aid into a block grant for states. Gregg and other conservatives insisted on that flexibility for governors, and Kennedy saw to it that at least a shadow of it would remain in the version of the bill the Senate passed.

A House Divided If anything, the politics of education in the House were even trickier. Many Republicans wanted the federal government entirely out of the schools. Many Latino and African American Democrats were leery of the annual testing that Bush insisted be mandated by the bill, fearing such testing would stigmatize schools in low-income neighborhoods without aiding them. They viewed the "Straight A's" plan as a license for governors to shift money from poor pupils to more affluent suburban kids.

On the other hand, key governors, including Republicans, bristled at the prospect of a new web of federal regulations duplicating or preempting their own school improvement efforts. They insisted on "Straight A's."

The White House got off on the wrong foot in the House by omitting Miller, the senior Democrat on the education committee, from the invitation list for the Dec. 21 meeting in Austin. Boehner, who was in a contest for the committee chairmanship, made an effort to show he was not going to be the partisan he had been in the past.

"I told the Bush staff," Boehner said last week, "that if I become chairman of the committee, this is the last meeting I go to without Miller. So they invited him." Gregg, a Bush crony who understood Miller's potential importance, walked through the dining room with Bush strategist Karl Rove before the Austin gathering and switched his own place card, next to Bush, with Miller's, so the president could chat up the Californian over lunch.

Boehner and Miller had been at odds for years. As Miller recalled, "Every time I saw him get up on the House floor, I threw rocks at him." But Miller, who teaches occasionally in a program for dropouts, had argued within the Democratic caucus for better targeting of federal school funds and more proof that students were benefiting.

"Bush said at the lunch that he wanted the money to go to the poorest children and the poorest-performing schools," Miller said, "and he made it very clear he wanted a bill. In our business, that meant we had room to negotiate."

For his part, Boehner understood from the outset that "the only way to get a bill was to be bipartisan."

"We had 30 to 60 of our own [conservative Republican] members who would not follow the president's path," Boehner said. (In the end, 33 Republicans, along with six Democrats and two Independents, voted against the bill.) Boehner himself was ready to follow Bush, having become convinced that Republicans needed to do more for schools. He had come to share Miller's belief that too many poor children are consigned to academic failure simply because no one knows or cares that they are slipping behind. Boehner was the only child, in a family of 12, to receive a college degree.

Boehner and Miller met alone the day after their first Oval Office session and agreed they would try to write a bill together while resisting pressure from the powerful education lobby groups. Vouchers were off the table, they agreed. Bush had proposed them only as a final option for pupils in chronically failing schools and had signaled that if states wanted a voucher program, they should pay for it themselves.

But "Straight A's" was a potential deal-breaker. As Boehner put it, it was "the Holy Grail" to many Republicans "but White Lightning to Democrats." Before the House committee voted, Bush called Miller and asked him to support at least the scaled-down, seven-state demonstration program of block grants that Kennedy had agreed to put in the Senate bill. Miller said no.

But the House Republican leadership prepared to offer what they called "Kennedy Straight A's" as an amendment on the floor. Boehner warned that it would end Miller's cooperation and drive off Democratic votes. The three top GOP leaders, plus Boehner, trooped down to the White House to present the issue to Bush. They said conservatives were upset at losing vouchers and would rebel if "Straight A's" vanished, too. Boehner argued adamantly for keeping a bipartisan coalition.

"I'm with Boehner," Bush said, once again challenging his own party's governors and his conservative base.

The "Straight A's" amendment was never offered in the House. In the end, an idea that was developed by Rep. Timothy J. Roemer (D-Ind.) and other New Democrats assuaged the pain of that defeat, even for conservatives like Gregg. Roemer interested Boehner in a proposal to give local school districts more leeway in their use of federal funds while preserving the rules that prohibit any state from diverting money from the neediest pupils and schools.

Different aspects of the bill attracted attention from other legislators. Sen. Paul D. Wellstone (D-Minn.) nagged and pestered about the quality of the required tests, making sure they would be used to diagnose and remedy individual students' shortcomings, not just to flunk schools and teachers. Rep. Michael N. Castle (R-Del.), a former governor, lobbied for provisions that would let states pick their own tests, which would be validated by the performance of a sample of students on a biennial national test.

Even after the bills passed the House and Senate, a further challenge awaited. Jeffords and his staff turned up a report by a trio of academics that highlighted a concern already surfacing among the president's advisers. The report said that under both the House and Senate formulas for measuring education achievement, virtually every school in two pioneering states -- North Carolina and Texas -- would be deemed a failure and be subject to reorganization.

If those two states, which are regarded as leaders in school improvement efforts, failed the House and Senate standards, that would have meant potential embarrassment for all 50 governors and countless school officials. It would also have been contrary to everyone's intent to focus federal dollars on the lowest-performing schools.

As a result, the conferees, rather than simply melding the two bills, were forced to devise a new one. They engaged in an agonizing search for a new way to define "adequate yearly progress" and then to work through the myriad other problems in a bill that had begun as a 20-page White House staff outline and had become a 1,200-page piece of legislation.

It took four months more for conferees to finally reach agreement, but ultimate success came because, as one White House official said: "Kennedy and Miller changed the direction of the Democratic Party, and Bush changed the direction of the Republican Party. That it all happened in one year is remarkable."

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