Saturday marks the one-year anniversary of the Obama administration’s first 10 approvals of comprehensive NCLB waivers.* The Senate HELP Committee marked the anniversary with a hearing today on early lessons from the waivers, but one thing that deserves more attention is the process behind the waiver initiative. Congress should learn from that process—where the federal government outlines criteria, states draft a plan to meet the criteria, the plans are peer reviewed, and the Department approves states plans for a limited number of years—and use it as a potential model for ESEA reauthorization.
Congress is increasingly unable to agree on full reauthorizations of complex legislation. This is obvious across many policy areas—see the repeated stalemates on taxes, immigration, gun control, energy, etc. But in education, this has meant longer and longer times between reauthorizations of the federal Elementary and Secondary Education Act (ESEA). For the first 15 years of its existence, ESEA was reauthorized approximately every three years. Starting with the 1981 reauthorization, it has been up for reauthorization every five years, but it took seven years for the next version, then six, seven, and 11 years (and counting) for Congress to reauthorize the law. For the Higher Education Act, the numbers are 3, 3, 1, 4, 4, 6, 6, and 10. For the Perkins Act, reauthorizations were 4, 10, 8, and 7 years (and counting) apart. The Workforce Investment Act is 15 years old and has been up for reauthorization since 2003.
This is not a positive trend and means that schools around the country are dealing with outdated policy.
Policymakers could address this intransigence in one of three ways. They could reach across the partisan aisle more often and actually deal with complex policy issues. That seems more like a hope than a plan. Option two is to just continue what they have been doing, letting partisanship equal gridlock and kicking the can on important policy decisions down the road.
There is a better option. Congress could try a new approach to explicitly neutralize partisan gridlock. It would draw on the lessons of the Race to the Top program and the NCLB waiver initiative, and it would start with the federal government (in this case, Congress) drawing up a set of criteria and asking states to design their own plans to meet them. States would be required to involve a broad group of stakeholders in their plans, and then submit them to the Department for peer review. All documents, including who the peer reviewers were and what comments they gave, would be publicly available. Ultimately, the Secretary of Education would have authority to approve the state’s plan for a number of years (five, for example).
On its face, this may sound similar to No Child Left Behind, which required states to design accountability plans that were approved by the Secretary. Critically, NCLB opened the door to states updating their accountability plans but did not require it. A new approach would carry the expectation that all states would have to come in for a federal review of their plan at a minimum of once every five years. This would build into the law a continuous improvement expectation that is absent from the current version.
Unlike current law, this review would focus on outcomes as opposed to process. If a state failed to address its achievement gap between white students and English Learners by using one set of improvement ideas, for example, it would have to adopt new methods for the next approval.
And, unlike NCLB, which allows states to set their own standards but then dictates what happens when a school fails to meet the targets, this new version would encourage states to adopt college- and career-ready standards and would give them flexibility—within the constraints of federal guidelines and a peer review process—to determine their own system to hold schools accountable for results. NCLB enforced strict mandates on state accountability systems that didn’t meet state needs. So, states like Florida operated two side-by-side accountability systems, one sanctioned by the feds and one that state lawmakers, parents, and the general public relied on. That’s not a good result, and a new ESEA should try to allow states enough flexibility to use their own accountability systems (again, inside broad federal parameters) as the education accountability system.
Why would Congress agree to this delineation of power to the executive branch? One, it’s actually a fairly minor tweak to current law. States regularly update their accountability plans, and the Secretary already has the authority to approve them. If Secretary Duncan had walked into the office in 2009 and wanted all states to use an n-size no higher than 30 for accountability purposes, for example, there’s nothing in the law preventing him from insisting states update their plans. The change I’m proposing would simply make a continuous improvement process explicit.
Two, Congress would still have an important role to play. They would be the ones setting the criteria (unlike RTT or the waivers), and they could revisit those criteria at any time. Plus, the law would still be up for regular reauthorizations, just like it is now, when they could make more wholesale changes to the requirements.
Three, there’s some precedent for putting government on auto-pilot. Our tax brackets automatically adjust upward every year, and a portion of Pell Grants are now indexed to inflation. Congress decided they didn’t want to have the same fights over and over again; they’d rather set a policy, allow automatic adaptations to changing circumstances, and reserve the right to revisit the policy anytime they wanted to. Congress should use a similar framework for the next reauthorization of ESEA, acknowledge their limitations, and build a continuous improvement process explicitly into the law.
*Disclosure: I worked on the waiver policy at the Department of Education until August 2012.
Photo Credit: ABC Go