Obama Grants Himself a Hall Pass from Constitutional Constraints

Published May 31, 2016

If public schools still emphasized U.S. history and civics, most students would know enough about the Constitutional separation of powers to realize that the chief executive, President Barack Obama, is now trampling on Congress’s authority to rewrite the nation’s main law dealing with education.

Given recent surveys showing an appalling level of ignorance about American heritage and governance among young and old Americans alike, the president and Secretary of Education Arne Duncan can rest assured there probably won’t be much fuss about their de facto rewrite of the No Child Left Behind Act of 2002. Mutterings from Congress, now on its August break, will just sound like more small-minded nay-saying following the debt-ceiling brouhaha.

Just to be sure no slumbering defenders of the Constitution are awakened, Duncan is portraying the power grab as a kindhearted willingness to grant states waivers from NCLB requirements that many communities see as unrealistic and harsh. However, there is one huge catch: A state will receive a waiver only if it agrees to adopt the Obama agenda for education reform.

Duncan promises full details in September; however, his office already has made clear that the waivers entail adopting the national curriculum standards known as the Common Core, together with a new data-driven accountability system applicable to all teachers and students and currently under development with federal and foundation money.

All of that would form the heart of the new NCLB, replacing the system championed by former President George W. Bush that required states to test students annually for basic reading and math skills, using the states’ own assessment systems. No Child Left Behind was adopted by a bipartisan vote of Congress.

Many critics have panned NCLB for setting a utopian goal of 100 percent proficiency by 2014 and for branding schools as flops if even one small subgroup of students failed to meet annual goals. Whatever the pluses and minuses of NCLB and its good intentions, the main takeaway lesson should be the utter futility of injecting the federal bureaucracy into the management of local schools. That had been the trend since passage of the original Elementary and Secondary Education Act in 1965 as part of LBJ’s War in Poverty, and NCLB just confirmed that federal mandates do not generate improved student achievement.

A real reform of NCLB as part of congressional reauthorization would put power into the hands of local parents by seeding communities with opportunity scholarships such as those that have worked well on a trial basis in the Washington, DC schools. However, the Obama/Duncan waiver gambit will take policy in exactly the opposite direction by giving the president and his inner circle total control over K-12 education, in contravention of the Constitution.

As Brookings Institution scholar Russ Whitehurst noted in an August 8 blogpost on the Brookings Web site, administrative waivers serve a legitimate purpose when allowing states to respond to unrealistic conditions, or to implement locally engineered innovation. However, added the former Education Department research chief, “It is quite another thing to grant states waivers conditional on compliance with a particular reform agenda that is dramatically different from existing law.

“The NCLB waiver authority does not grant the Secretary of Education the right to impose any conditions he considers appropriate on states seeking waivers,” Whitehurst continued, “nor is there any history of such a wholesale executive branch rewrite of federal law through use of the waiver authority.”

If nothing else, the Obama administration has been consistent. It drew nearly $5 billion from the Stimulus Act in order to dangle Race to the Top incentive grants in front of states that would buy into the national standards curriculum and testing. Many states took the bait, although only a dozen received the bribe money. At least a few legislatures have begun talking about withdrawing from the Common Core.

The question now is whether Congress will reassert its constitutional authority and do something good for the folks back home by giving them back their schools.

Robert Holland ([email protected]) is a senior fellow of The Heartland Institute in Chicago.