The rewrite of No Child Left Behind is a compromise, but a principled one

header-hoover-institution-fellows1-1By Frederick M. Hess

www.usnews.comCongress has finished rewriting the No Child Left Behind Act, the Bush-era federal law governing K–12 education. Now, a conference compromise renamed the “Every Student Succeeds Act” (ESSA) is due for final up-or-down votes in the House and Senate sometime soon after members return from Thanksgiving. The new law is a significant conservative victory that profoundly shrinks Uncle Sam’s role in K–12 schooling and upends 15 years of increasing federal control, but it is a compromise.

That fact has led some thoughtful critics on the right to raise questions about whether the rewrite does enough to rein in a federal Department of Education run amok. They ask whether it will reestablish an appropriate, constitutional role for Washington in the area of education policy. Especially after the legislative debacles of the Bush years and the lawless federal power grab of the Obama years, such concerns are wholly justified.

Indeed, recent history has taught conservatives to be skeptical when eyeing yet another compromise. After too many hollow “victories,” only the credulous wouldn’t have doubts. At the same time, our constitutional design means that few wins are absolute — especially when progressives hold the White House and more than 40 seats in the Senate. The question is whether the deal is a principled victory with some acceptable concessions or a defeat dressed up in talking points.

To me, the ESSA seems a clear win for conservative principle. It ends the ability of federal officials to judge whether schools are performing adequately, intervene in schools that the feds deem failing, decide who is a “highly qualified” teacher, and tell states how to design school accountability systems. Responding to the outrageous provocations of the Obama years, it strips the Secretary of Education of most of his discretion and makes clear that the federal government can in no way aid, encourage, or assist Common Core or any other set of “standards.”

That said, conservative skeptics have raised a number of concerns. They deserve serious consideration, so let’s take a look at the seven objections that have been raised. My own judgment is that ESSA’s concessions are a small price for a big win — rather than evidence of conservatives once again getting rolled — but readers can judge for themselves.

ESSA codifies a new pre-K program. The bill codifies a new child-development grant program that was being funded through appropriations. This is unfortunate, as the last thing we need is more federal muddling in early childhood. That said, it’s a relatively small program ($250 million), is empowered only to support state coordination of services, and is funded only with dollars that Congress had already allocated. Moreover, it has the modest blessing of imposing legislative constraints on a program that has been operating at the Secretary of Education’s whim.

ESSA does not allow states to opt out. This summer, the House and Senate rejected amendments that would have incorporated versions of the “APLUS” proposal into No Child Left Behind. This would have allowed states to opt out of the law’s provisions while retaining their federal education funds. There’s a lot to be said for this kind of no-strings-attached block-grant approach, especially in the age of Obama. However, the votes for passage weren’t even there in the House, much less the Senate. While it has a lot of appeal, insisting on APLUS means sticking with current law — and the executive mischief it enables.

Title I funds are not portable. Conservatives have long sought to make Title I funds for low-income children portable, so that the dollars will follow students to the school of their choice. The House this summer included a provision that would provide for portability to charter and district schools, although it rejected proposals for portability to private schools. In negotiations, Title I portability was dropped. The votes simply weren’t there. This was a concession, no question. At the same time, the per-pupil allocation of Title I tends to be only a modest fraction of spending on a given student, meaning that the victory would probably have been more a symbolic one than a substantive win.

ESSA doesn’t stop Common Core. The bill does not roll back Common Core. That’s true. However, Congress had never authorized the federal government to support Common Core. Obama-administration activity on this front — including on the Race to the Top program, funding for Common Core tests, and conditional “waivers” from NCLB — has been without legal sanction (and contrary to the spirit of existing law). What the new bill does do is specifically bar federal officials from continuing or recycling any of these shenanigans. But it’s true that opponents of Common Core will have to fight this out in the states, though they’ll do so in the knowledge that Washington will no longer be taking sides.

There are no spending cuts in ESSA. The new law leaves projected spending untouched, though it’s worth noting that GOP victories on domestic spending have dramatically flattened outlays on K–12 over the past decade. In any event, the bill only provides an “authorization” to spend in the future: What’s really at stake right now  are the mandates and regulations that the bill does (or doesn’t) impose. The “authorized” spending amount is mostly meaningless. The time when  spending fights really matter is when Congress is dealing with appropriations.

ESSA retains annual testing. The bill leaves in place the NCLB framework that required states accepting federal Title I funds to test students in reading and math in grades three through eight and at least once in high school, and in science at least once in elementary, middle, and high school. States must select and administer and test and report the results, but they are free to decide how to use the results when it comes to holding schools accountable. This isn’t actually a concession. Shorn of NCLB’s pie-in-the-sky accountability mandates, once-a-year tests won’t distort schooling and infuriate parents. And, after all, so long as Washington is spending taxpayer funds on K–12 schooling, conservatives should be the party of transparency and citizen-fueled accountability, not unaccountable federal largesse.

ESSA allows for too much federal oversight. The new law would explicitly strip Washington of the right to micro-manage state accountability systems and school-improvement strategies, but it does leave too many vague federal guidelines and recommendations on this score. While an unfortunate concession to the White House and the civil-rights lobby, the requirements are so deferential to states and the provisions restricting the federal Department of Education are so stark that the result is acceptable, even though I’d have vastly preferred to see Congress simply excise these provisions.

The bottom line is that conservative negotiators brought home a good deal and gave away as little as possible. There was no misguided attempt to play nice with Obama’s proxies. After the Bush and Obama years, we should all be leery of being sold a bill of goods. And I would support a serious proposal to zero out federal school spending and then get Washington out of K–12 altogether. But conservatives don’t have the votes to make that an option.

There’s a difference between being principled and self-defeating. When you get 75 percent or 80 percent of what you want — especially when you don’t have the White House or veto-proof majorities — winning movements pocket the victory and move on.

Frederick M. Hess studies K-12 and higher education and he is Resident Scholar and Director of Education Policy Studies at AEI.

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