The Senate is expected to bring the Every Child Achieves Act to the floor this summer. This chance to rewrite the 2001 No Child Left Behind Act (NCLB) poses a particular opportunity for Hill Republicans.
When it comes to pushing back against executive overreach, congressional Republicans have had a tough run of it. When the president has ignored statutory provisions or stretched statute into an unrecognizable shape in areas like immigration and healthcare, Republicans have been forced to place their hopes in the judiciary. On education, however, they have a straightforward chance to bring to an end four years of destructive, lawless executive branch freelancing in K-12 education by reauthorizing a clipped-wing version of No Child Left Behind. It's an open question, though, whether they'll miss the forest through the trees by letting debates on particular provisions torpedo their chance at restoring the rule of law.
While the Obama administration's executive excesses have drawn much attention, its record of doing the same on education has sometimes flown under the radar. NCLB, pushed by the George W. Bush administration and enacted in 2001, was the most recent reauthorization of the Elementary and Secondary Education Act (ESEA). NCLB, in addition to massively extending the federal say in state education systems and school accountability, bizarrely mandated that 100 percent of the nation's students would be proficient in reading and math by 2014. Schools that failed to meet that standard would be labeled as failing to make "adequate yearly progress" and subjected to a variety of federally mandated remedies.
This requirement means that a lot of decent schools would be labeled as "failing" — disrupting schools and communities, and infuriating parents and educators. The Obama administration stepped into the breach to offer states a novel deal: Secretary of Education Arne DuncanArne Starkey DuncanStripping opportunity from DC's children Catherine Lhamon will make our schools better, fairer, and more just Providing the transparency parents deserve MORE would grant waivers to states, but only on the condition that states adopt a slate of Obama administration education priorities. This proved to be an offer that states truly couldn't refuse. Now, NCLB does give the secretary the authority to waive federal penalties, but nothing in the statute empowers the secretary to offer a quid pro quo to strong-arm states into adopting the administration's policies. While it's for the courts to decide whether the tactic is illegal, it is certainly, by definition, lawless.
NCLB is effectively defunct, and the Obama administration is using its trappings as a pretext to dictate state education policy from Washington. The most notable of these dictates is the steady federal pressure on states to embrace the Common Core State Standards and the associated tests, or risk losing their waiver. This bit of maneuvering has allowed the federal government to press states to stick with the Common Core, at the risk of having to label more than half their schools as failing. The precedent is now set; it's easy to imagine the next administration eagerly building upon it to promote its own pet agenda. This is not the way our federal system is supposed to work.
Congress is now the closest it has been to revising NCLB since the law was enacted. The House and Senate are both considering proposals for reauthorization that would correct the excesses of NCLB. Both bills would get Uncle Sam out of the business of deciding which schools are "failing," end federal micromanagement of how states address struggling schools, and erase pie-in-the-sky mandates that 100 percent of students will be able to do this or that. This would put an end to waivers and put states back in charge of their own education policies.
While the House's bill to reauthorize NCLB, the Student Success Act, would dial the federal role back even more aggressively than would the Senate bill, which received a unanimous vote in committee, both bills would do much to rightsize the federal role.
Nonetheless, earlier this year, a planned House vote on the Student Success Act was spiked after a revolt from the right. While House Republicans passed the Student Success Act on a party-line vote in 2013, concerns emerged about the failure of the 2015 version to allow low-income students the use of "Title I funds" to attend private schools, and the lack of a floor vote on a Heritage Action-endorsed alternative bill that would allow states to opt-out of ESEA's requirements altogether. Nervous conservative bloggers also raised issues regarding the wording of longstanding provisions.
The concerns are all understandable. The blogosphere complaints were, for the most part, technically incorrect, but they reflect a healthy skepticism about statutory language in an era when the executive branch seems to treat the letter of the law with remarkable casualness.
In this case, however, Republicans risk allowing the perfect to be the enemy of the really good. And, unlike Sen. Ted Cruz's (R-Texas) quixotic 2013 push to defund the Affordable Care Act, Republicans have a straightforward and viable path to victory.
Lawmakers would do well to focus less on whether the law has every item on their wish list — what matters most is that the Student Success Act in the House and the Every Child Achieves Act in the Senate are both good bills that will rein in Uncle Sam and restore the rule of law in education.
This piece has been updated to reflect the Senate's expected schedule for the Every Child Achieves Act.
Hess is director of education policy studies at the American Enterprise Institute (AEI). Eden is program manager of education policy studies at AEI.