Much has been said about the ineffectiveness of No Child Left Behind, the sweeping, decade-old federal education law that uses student performance on standardized tests as the barometer for academic achievement. Standards mandated by the law were supposed to increase school accountability on a national scale, but they are now often criticized for unfairly penalizing underperforming schools.
NCLB has been up for reauthorization since 2007, but despite President Obama's prodding, neither chamber of Congress has come up with a comprehensive alternative.
That stagnation, U.S. Secretary of Education Arne Duncan said, is why he and the president are making unprecedented use of executive power to work around the law. On Aug. 8, Duncan said the administration would go ahead with issuing waivers for some of the law's much-maligned strictures to states that agree to sign onto a package of yet-to-be-detailed reforms.
Most parties to the NCLB debate agree the law has to change. The sticking point is the question of how. And it seems the fight to renew, reject, revamp or work around No Child Left Behind is an old one.
"It goes back to Jefferson and Hamilton," Bruce Fuller, a University of California, Berkeley, education professor who has researched the law, told The Huffington Post. He was referring to the debate among the Founding Fathers about the strength of the federal government as opposed to that of the states. "This is a question of the federal role in accountability vis-a-vis the states," he said.
Fuller says NCLB was the result of a compromise between "federalists who argue that only Washington will be able to set high standards because they're immune from state governors, versus a states' rights perspective." Since the Constitution gives states authority over public education, "states' rights people say that the law is intrusion."
What's at stake is the way states measure and assess the proficiency of their students on standardized tests. Fifty states define proficiency by setting "cut scores" for determining whether a student is, for example, competent in fourth grade math. But those standards vary among states, and a recent study from the Education Department's research arm showed they usually lag far behind federal standards.
States were required to set ever-increasing proficiency standards in order to meet NCLB's mandate of 100 percent student proficiency in reading and math by 2014.
"As states faced NCLB's 100 percent proficiency rate requirement, they just lowered the bar for what test score would indicate proficiency," Fuller explained.
NCLB's measurement of proficiency, or "Adequate Yearly Progress" (AYP), has largely been discredited due to its inability to measure growth and account for increasing performance targets. Still, NCLB provided, at the very least, some basis of comparison between state proficiency levels, especially once state standards were calibrated to federal standards measured by the National Assessment of Educational Progress (NAEP) tests.
But as recently as Monday, Duncan appeared ready to ditch some of AYP's strictures. After Montana announced it would freeze its performance targets -- an action that would appear to violate NCLB -- Duncan's office chose not to strictly enforce the law and rescind the state's federal education funding. Instead, Montana education officials worked with Duncan's office and found a loophole in NCLB that allowed the state to reset its proficiency standards.
"There's no comparability across states or schools, it's this arbitrary bar," Montana schools chief Denise Juneau said of AYP. "We want comparability and growth."
Duncan seems poised to waive AYP standards if states' are willing to create their own accountability models -- even without an alternative national accountability system in place.
Fuller worries that a lack of a national system like AYP will encourage states to set lower and lower goals. In Montana, for example, the deal reached on proficiency targets lowered the number of schools that would have been deemed failing under NCLB from 158 to three.
"States have played games for setting the proficiency bar, and they always will," Fuller said.
Some critics have called Duncan's proposed NCLB waivers an overreach -- they argue he is both circumventing Congress and granting waivers on the condition that states accept his favored reforms. But Fuller notes that the decision represents a massive scaling back of the federal role in setting education standards.
"It's like saying we don't care if people get sick with bad meat, so we shred any federal standard for meatpacking," he said.
Former Education Secretary Margaret Spellings, who doled out relatively few waivers during her tenure, wrote in a Tuesday blog for HuffPost that the Obama administration "is throwing in the towel and admitting defeat for kids."
"They want to give waivers to states that have not -- and apparently never intended -- to educate their students despite receiving billions of taxpayer dollars to fulfill this most basic of promises to our children."
The rhetoric coming out of Duncan's office would lead some to believe that Congress has totally halted in its work on overhauling NCLB. But that's not entirely true. Rep. John Kline (R-Minn.), chairman of the House Education and the Workforce Committee, has introduced a spate of bills to his committee as part of a piecemeal approach to tackling the law in the House.
Kline's latest bill, which would remove strings from Title I funds that are reserved for disadvantaged students, brought fierce criticism. The bill's introduction largely ended what had been, until then, a bipartisan process, with Rep. George Miller (D-Calif) calling it a "complete betrayal of education equality" and "a knife in the back to the bipartisan process."
Fuller attributes the legislative breakdown to Republican strategizing. He says conservatives never liked the bipartisan nature of NCLB to begin with, and Republicans not wish to give Obama a perceived win on education policy as the 2012 election looms.
"They would like to see NCLB implode and suffer from a slow death," Fuller said. "Then we're back to a totally federalist system of education," he added, noting that prior to NCLB, education policy was, for the most part, the sole dominion of states.
Another challenge may stem from a contradiction in ideology. "[Republicans] are having a hard time reconciling the heightened anti-federalism in the caucus, [with] trying to craft federal policy," said Kevin Carey, policy director of the think tank Education Sector. As a result, Kline's bills have failed to deal with the central accountability question.
While the House falters, members of the Senate continue to say they expect to release a markup of an overhauled bill by the fall. Senators Tom Harkin (D-Iowa) and Michael Enzi (R-Wyo.) are continuing to meet regularly to discuss NCLB reform -- even after Duncan's waiver announcement.
Both Republicans and Democrats told HuffPost they're keeping silent about the closed-door negotiations in order to uphold their bipartisan nature.
Federalism appears to be a sticking point in the Senate negotiations, too. "There may be disagreement on whether things should be optional for the states," said Sen. Al Franken (D-Minn.), who sits on the education committee. "In the reform of No Child Left Behind, how much flexibility or how much leeway the states have in what they do, versus how much is prescribed by the federal government," he said, is being debated.
A House aide privy to the meetings said all parties agree on one thing: AYP should be ditched and a new law should be less federally prescriptive. States are now devising their own accountability plans, the aide said, that take growth into account and are generally more robust.
Since Duncan confirmed the Education Department would move forward with the waiver process, Democratic members of Congress who originally chided the proposal have tempered their criticism.
"I'm hoping that we'll pass an NCLB reform bill soon," Franken said. "But it's not clear exactly when that will happen, so I understand why Secretary Duncan wants to provide relief to states." Franken said it was too early to comment further on the waiver plan before seeing more details.
Kline's camp has continued to express disdain for the waivers. Kline said he was concerned that the waiver plan could "undermine" any congressional movement on NCLB reauthorization.