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Restore the Rule of Law to Education
By: Max Eden, AEI Program Manager, and Mike McShane, AEI Research Fellow




This week the House of Representatives will consider a replacement for the obsolete
No Child Left Behind (NCLB) Act. NCLB was passed in 2001 by a large, bipartisan majority — but to get that majority, the Bush administration had to make compromises that transformed its modest yet firm vision for the federal role into a sprawling, unworkable mess. 

Among other excesses, NCLB mandated that schools demonstrate progress toward 100 percent proficiency in reading and math by 2014. That turned out to be highly optimistic, and so, under the letter of the law, most schools in America are now technically failing, which leaves them subject to a cascade of federal sanctions. The Obama administration stepped into the breach to offer states a deal — it would give them relief from those federal penalties if the states agreed to adopt the administration’s preferred policies. So we now find ourselves in a situation where the Department of Education is micromanaging state education policy — something not sanctioned by the law, and something conservatives rightly recoil from. 

Now that Republicans have their largest (and most conservative) congressional majority in recent history, they have the opportunity to repeal and replace NCLB, doing away once and for all with its worst excesses. Our friends at the Heritage Foundation hit the nail on the head in describing what was wrong with NCLB. They cited three particulars that must be repealed in any reauthorization: Adequate Yearly Progress (the mandate that states reach 100 percent proficiency), Highly Qualified Teacher requirements (a well-intentioned credentialing scheme that created more hoops to jump through than it did qualified teachers), and the slew of new programs that put a burden on states and school districts.

The House is considering the Student Success Act, a conservative alternative that repeals Adequate Yearly Progress, repeals the Highly Qualified Teacher requirement, and eliminates more than 65 programs, replacing them with a Local Academic Flex Grant.

So we found it curious that our friends at Heritage Action (which is affiliated with the Heritage Foundation) have come out against the Student Success Act. They sent out a “Sentinel Brief” opposing the SSA and alerting their constituents to its “misleading claims.”

To our mind, the claims aren’t misleading, but we’ll leave that to the reader to decide. The thrust of their critique was that the SSA does not go far enough.

Responding to the claim that the SSA reduces the federal role, Heritage says: The suggestion that Congress needs a 616-page bill to reduce the federal education imprint is implausible. Furthermore, despite the length of the bill, H.R. 5 [the SSA] lacks an opt-out of federal programs and mandates for states, an approach known as A-PLUS. A-PLUS would limit the federal role and ensures parents have the information they need.

That sounds eminently intuitive and plausible. But there’s a catch — a close reading of the 12-page A-PLUS Act shows that it may well ratify the Obama administration’s lawless legacy, not safeguard against it.

The idea behind the A-PLUS Act is that states would submit a proposal to the secretary of education giving “assurances” that they would use fiscal-control procedures, seek to advance educational opportunities for the disadvantaged, and maintain accountability to parents, among other things. The secretary would review the state’s proposal and “shall recognize the declaration of intent unless the declaration of intent fails to meet the requirements” of providing those assurances.

In one interpretation, the law could be read as forcing the secretary to rubber-stamp every application so long as the items required by the A-PLUS Act are merely referenced.

But as every thoughtful conservative has learned over the past six years, the executive branch rarely decides to interpret law modestly. The stated purpose of the law is “to ensure that States and communities are accountable to the public.” So, for example, when it comes to the requirement that states provide “an assurance that in implementing the declaration of intent the State will seek to advance educational opportunities for the disadvantaged,” the secretary may well decide that it’s his job to determine whether the “assurance” given is adequate.

And Pandora’s box opens. The secretary is now empowered with essentially limitless discretion, and Obama’s lawless legacy is ratified at the behest of Heritage Action.

We shudder to think of what a secretary of education under Hillary Clinton — say, perhaps, Chicago Teachers Union president Karen Lewis – would tell state lawmakers qualifies as an “assurance.”

Conservatives, on principle, favor the rule of law over investing cabinet officials with legislative authority. It’s better to spell things out — even if the law is long — than to invest the Department of Education with such broad discretion. There’s really no way around it: With a bill like A-PLUS, a progressive administration could use a stray comma to justify aggrandizing power in the executive. And, as we’ve seen with Obamacare, what matters at the end of the day is not Heritage’s idea of what a law would say, but how a Democratic administration would interpret and implement it.

If the goal is to reduce the imprint of the federal government — as it should be — then conservatives would be well advised to pass a law while they have majorities, rather than punt toward a future Congress that might be far less favorable to their principles.

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