States Rights at Heart of New 'No Child Left Behind' Debate
Mallie Jane Kim

Critics say the bill would leave minorities behind, others say it is still government overreach

In a year of bitterly partisan battles over the budget, debt, and anything else with a deadline, the Senate hopes to break through congressional quagmire to replace the wildly unpopular No Child Left Behind education policy. The legislation would obviate the need for the Obama administration's waivers of the education law's requirements, something 41 states have already said they would apply for, and any such sweeping revision would put some certainty back into the education sector, which has been waiting for reforms since the current law was due for a revamp in 2007.

But the effort will not be easy.

The proposal already draws steep criticism, both from those who think it strips too many protections for minority and low-income students, and also from those who believe it still represents government overreach. At the heart of the battle, though, is determining whether, and to what extent, the states can be trusted on educational equity. And how large of a role the federal government should play in making sure all students succeed.

"Historically, states did not do what was right," admits Gene Wilhoit, executive director of the Council of Chief State School Officers. States set widely varying standards, if any, for student learning, and many at-risk students fell through the cracks. Wilhoit explains that this led the federal government to be more prescriptive; for example, requiring schools to report student success broken down into student subgroups based on things like race and socioeconomic status, and setting deadlines for student progress. In response, states became more standardized, but less innovative, he adds. "The question is, have the states evolved to a position where they will take responsibility for reforming education, and how far can a federal program design that's prescriptive in methodology carry a country to excellence?" he asks.

Wilhoit believes it is time for states to be granted more leeway, and he thinks the new bill, is a giant step in that direction. "States have shown, over the last few years, that they are a very different sort of entity than they were a number of years ago," he says.

The fight is already heating up in Congress. Even today's scheduled markup in the Senate Health, Education, Labor, and Pensions Committee faced opposition. Chairman Tom Harkin of Iowa planned to plow through the proposed amendments with an all-day meeting, but Kentucky Sen. Rand Paul raised procedural objections, ending the session immediately and effectively stalling the bill's progress. Paul has complained the bill still allows too great a role for federal government in education. Harkin said he planned to reconvene later in the day or at 8 a.m. Thursday.

The move could be an omen for the bipartisan sponsors of the bill -- Harkin, a Democrat, and Republican Sen. Mike Enzi of Wyoming, the committee's ranking member -- who expressed hope they could move the bill onto the Senate floor quickly. Both admitted in their opening remarks today that the bill wasn't perfect, but was the result of bipartisan compromise. "It's the way we used to work around here, and it's the way we should be doing work around here," Harkin said.

The central policy change is the accountability mechanism. Under No Child Left Behind, 100 percent of students need to be proficient in math and reading by 2014. Under Harkin and Enzi's bill, schools would need to demonstrate "continuous improvement" in student outcomes, and in most cases, states would have more discretion over how to intervene in troubled schools. Also, the bill would require states to adopt college- and career-ready standards with the accompanying tests -- most states are already well on their way into doing so -- and it would codify competitive grant programs enacted under the Obama administration, including "Race to the Top," "Investing in Innovation," and "Promise Neighborhoods," which provide funds in exchange for innovations.

But some see the level of discretion states would get under this bill as a dangerous backslide to the days before No Child Left Behind.

"Times change and we need to make some improvements, but this is a wholesale retreat against accountability for every child," says former Education Secretary Margaret Spellings, who served under President George W. Bush. Spellings decries the lack of specific targets for achievement and accountability that were the foundation of No Child Left Behind, legislation she helped form. Those accountability provisions, she says, were what forced the states to look out for disadvantaged and minority students. "I think they should name the law, 'No Superintendent Left Whining,'" she says. "It makes the noise go away; takes the pressure off."

For those worried Congress may roll back the gains in serving low-income and minority students made over the past decade, the lack of a teacher evaluation requirement in the bill is a huge drawback. Critics like Spellings and former D.C. public schools chancellor Michelle Rhee decry that the evaluations would be incentivized through a grant program rather than mandated, as they are under current law.

Harkin acknowledged Wednesday that the teacher evaluation provision was dropped to make the bill more bipartisan, giving it a better chance to survive committee negotiations.

Whether states "do a good job with their teacher evaluation systems, or whether they even implement them at all is going to be a matter of chance," says policy analyst Anne Hyslop of Education Sector, a nonpartisan think tank based in Washington, D.C. Hyslop adds that the bill would mean states won't have to ensure teachers at low-income schools are on par with those at high-income schools. "And states and local governments certainly don't have the best track record on equity issues," she says.

But dropping the teacher evaluation piece was a win for those who hope states will be granted maximum trust and flexibility. "If you're going to take promising reform like [teacher evaluation] and turn it into a federal mandate, you're going to kill it," says Michael Petrilli, executive vice president at the right-leaning Fordham Institute. "You're going to have states who have not bought into that vision who do it only out of compliance, and they're going to do it poorly."

Petrilli believes states have advanced over the past 10 to 15 years to earn the trust to do such things on their own, and he says they would likely do it better without a federal mandate. "Partly because of No Child Left Behind, you see the world is a lot different now. You've got bona fide reformers in place in many states," he says, adding that since each state is very different, those state- and school-level reformers should be trusted to try their own methods. And with most school problems, proven over-arching solutions don't exist yet, he explains. "We need to have the humility to say we don't know, and therefore let's let it play out differently in each state and learn from one another," he says, "instead of trying to fight these symbolic battles in D.C. and tie everybody's hands to one approach."

But those who think the new proposal is worse than current law, like Spellings, take comfort Congress's recent inability to move forward on policies that don't threaten a government shutdown or credit rating drop. Spellings remembers the weeks spent negotiating No Child Left Behind in the Senate before it passed in 2001. "Do I think that there's going to be multiple weeks of floor time devoted to this law in the near term? I wouldn't bet on it," she says. "That's the good news, though."