Duncan Shows Congress the Way Around Gridlock

7/29/2019 Duncan Shows Congress the Way Around Gridlock

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HOMEWORK DONE: Duncan understands how to flex executive

authority in response t o st ates political will. (ED ANDRIESKI /

AP)

CQ WEEKLY COVER STORYMarch 12, 2012 Page 490

Duncan Shows Congress the Way Around GridlockBy Lauren Smith, CQ Staff

Education Secretary ArneDuncan says he truly wishes Congress was a productive, functional institution,

capable, for example, of overhauling the troubled No Child Left Behind law passed in 2001. But it isnt, and

he refuses to sit in a fancy office in Washington and do nothing about it.

After all, every administration knows there are ways to

work around the legislative branch. And thats just what

Duncan is doing. In fact, as he works to change the

ways of schools in America, hes writing the book on

how to get things done without waiting for Congress.

His first initiative came after a Democrat-controlled

Congress passed its economic stimulus in 2009 andgave Duncan more than $4.35 billion to award for a

competition among state school systems, called Race to

the Top.

The winning states offered to improve academic

standards, shutter low-performing schools, eliminate teacher tenure, lift caps on the number of charter

schools and develop systems to reward good teachers and fire others. Duncan regarded these as partial

correctives to the federal education law.

Race to the Top provided a direct pipeline of funds and policy directives from the Education Department toschool chiefs around the country, bypassing Congress.

His second foray far more dramatic is happening right now.

School officials across the country have been pressing for several years for relief from the education law

and from sanctions under the law due to be imposed soon against schools failing to meet its mandates.

With Congress stalled in its efforts to rewrite No Child and Duncan having heard so many complaints about

how destructive the education law has been, he decided to move ahead on his own.

Fundamental Redesign

He decided to waive the law for states that offered alternatives for improving their schools, if those

alternatives meet with the administrations approval.

Theres nothing unusual about waivers that allow deviation from regulations.

But conditional waivers on a wholesale scale a state gets a break if it pleases the Education Department

are unique. Once a department issues enough conditional waivers to a law, it has effectively changed it

http://www.cq.com/doc/weeklyreport-4044526?

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and replaced it.

Then waivers can become a fundamental redesign by the administration of aspects of a law enacted by

Congress, as the Congressional Research Service said in a recent report.

Starting last month, the department made good on its plan, granting waivers to 11 states. At least 26 others

have submitted waiver applications.

President Obama and Duncan incorporated the initiative into the administrations election year we cant

wait campaign against Congress.

Their approach infuriates Republicans on Capitol Hill. These are changes he wanted made, not changes

that we put into law, John Kline of Minnesota, chairman of the House Education and the Workforce

Committee, said in a recent speech at the American Enterprise Institute.

But the administration has done its political homework. Duncan conducted his own discussions with

governors and state school chiefs to get their views, and he butted heads with teachers unions.

His changes in Race to the Top and in No Child Left Behind (or NCLB) have concentrated on areaswith considerable bipartisan support. Thats offered some protection for the administration.

For example, Republican Sen. Lamar Alexander of Tennessee, a former Education secretary in the early

1990s under President George Bush, came out swinging against the waiver offer, claiming it would turn

Duncan into a waiver-granting czar.

But when Obama unveiled the entire plan in detail at a highly publicized White House event, Tennessees

Republican governor, Bill Haslam, introduced the president and hailed the waivers for providing necessary

relief for states across the country. In fact, seven conservative governors from Florida, Georgia, Indiana,

New Jersey, New Mexico, Oklahoma and Tennessee were among the first 11 whose states got waivers.

And no less a GOP hero than New Jersey Gov. Chris Christie praised Obama and Duncan for their

educational vision.

Government by executive order and administrative rule has become a relatively common response to

congressional paralysis over the past few decades in a variety of policy areas.

Duncan Undaunted

In the field of primary and secondary education where

the federal government barely trod until enactment of theeducation law Duncan and Obama are demonstrating

a keen understanding that where there is political will at

the state level to undertake major changes, flexing

executive authority is often welcome.

Moreover, being able to blame a do-nothing Congress

has allowed Obama to act without much push-back, in

the process prodding states to adopt the types of


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ALLIES: State and local school officials, at the White House

last month, were enthusiastic about the Obama-Duncan

change c ampaign. (SAUL LOEB / AFP / GETTY IMAGES)

education policies he favors.

No secretary of Education has ever had that amount of

money at his or her disposal, says Joel Packer, lobbyist for the public policy-oriented Raben Group. Its a

new paradigm and a huge carrot. If you want this money, do it this way.

They took the opportunity to play off Congress and say, Im going to do something about an unpopular law,

says Frederick M. Hess, director of education policy at the American Enterprise Institute. From the

administrations perspective, he says, its a winning hand. Politically it was a terrific winner.

The downside is that it opens the administration in an election year to further charges of overstepping its

legal and constitutional authority, a central tenet of the GOP 2012 campaign critique of Obamas big

government, top-down philosophy.

There is nothing anywhere in No Child where the secretary can dream up new conditions to impose on

states in return for flexibility, Hess says. Weve now created a precedent where to get out of something

thats been deemed a failed law, a state must go along with the substitute approved by Washington. Its

setting new boundaries of executive branch authority when it comes to trying to drive school improvement.

Duncan is undaunted and unapologetic. With a small amount of money, weve seen extraordinary change in

the country. Weve seen more changes in the last two and a half years than weve seen in the last two

decades, he said in an interview.

We definitely hope Congress will fix it and fix it in a bipartisan way, he says of the education law. But

unfortunately, Congress is dysfunctional these days and hasnt been able to move on it. Everywhere I went,

people were asking what I was going to do about it. . . . When we ultimately decided to move ahead with the

waivers, I called 45 governors, and literally every single one said, Go for it, and thank goodness someone in

Washington is paying attention. It wasnt my first choice. Its still my preference for Congress to move a bill.

But we have to play the cards were dealt.

Duncan does not see anything being imposed from Washington. The policies being implemented are coming

from the states and local school districts, he says. It is our job to unleash that. The best ideas in education

will never come from Washington. They will always come from the local level. For us to sti fle that would

either be arrogance or tone-deafness.

Waving federal dollars in front of cash-strapped states has worked especially well in the education arena,

where school districts have been suffering from an outdated federal education law and antiquated teacher

union contracts, but have little to no money or political will to overhaul the systems themselves.

Policy Pipeline

The Race to the Top competition authorized as part of the economic stimulus ranks as the largest education

grant in U.S. history, and gave states a chance to win their share of the $4.35 billion pot. The proposal was

simple: The administration defined the education policy changes it considered a top priority, and states with

applications that most closely reflected those priorities scored the most points.

At the top of Duncans list was establishing some common standards for public education what a child of a

certain age should know at a certain point, for example so that students in every state are held to similar


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academic standards paired with matching assessments.

The National Governors Association and the Council of Chief State School Officers have been working

jointly since 2009 to develop such standards in order to provide what the groups described as a consistent,

clear understanding of what students are expected to learn, so teachers and parents have a road map for

what they need to do to help them.

Under No Child, each state set its own standards, and some states, such as Massachusetts, set a much

higher bar for students than, for example, Georgia.

Moreover, some states have watered down corresponding assessment tests so that a larger number of

students can be rated as proficient and meet the requirements of No Childs accountability system.

Every state that won money through Race to the Top is in the process of adopting a set of common

academic standards. The standards dont specify curriculum but, rather, what a student should be able to

accomplish at each grade level in reading and math.

The federal dollars are also being used to overhaul accountability systems. Instead of measuring student

success based on a single test score, states are beginning to rate students based on how much

improvement theyve made over the course of a school year.

Together, these policy changes reflect a major shift from how public education systems currently operate.

It has opened up a new world of presidential power that people didnt know was ripe for the taking, says

Jennifer Cohen, education expert at the New America Foundation, a centrist think tank.

Eleven states and the District of Columbia divvied up the Race to the Top funds as winners, but nearly every

state 46 in total applied for grants.

And while the winnings didnt go to every state, that didnt stop many of them from implementing parts of their

proposal anyway.

Over the course of the competition, 44 states and the District of Columbia adopted new common standards

in reading and math, and 34 states changed laws or policies in ways that reflected the administrations

agenda.

Typically a president feels hamstrung by Congress, Cohen says. But by dangling money in front of states,

he got these massive changes that we otherwise wouldnt have seen for a decade.

Obama and Duncan agree, and have since expanded the program, recently announcing the winners of a

Race to the Top competition that focuses on early-childhood education, specifically increasing the number of

low-income children in preschool programs. And the presidents college affordability package, outlined in the

fiscal 2013 budget proposal, includes a $1 billion Race to the Top for higher education.

Republicans in Washington were quick to denounce the competitive grant, maintaining that the program

forces states to adopt education policies the administration favors. The basic premise behind President

Obamas Race to the Top initiative is simple, wrote GOP members of the House Education and the

Workforce Committee. U.S. Secretary of Education Arne Duncan has been granted control over a


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multibillion-dollar slush fund to be awarded to states as he sees fit.

Other GOP lawmakers called the competitive grant unfair, arguing that urban states and those with greater

access to funds were able to draft more successful grants than poorer, rural states.

Outside of Congress, however, many Republicans supported Race to the Top in part because it encouraged

charter schools and a hard line on dealing with teachers and staff in schools that dont pass muster.

That political cover became apparent early in the Republican presidential primary contest when

then-candidate Rick Perry tried unsuccessfully to make an issue out of Race to the Top, only to be rebutted

by Newt Gingrich, who said the president was showing some courage in taking on the teachers unions to

some extent and offering charter schools.

Opinions differ on the success so far of Race to the Top. Cohen of the New America Foundation says the

effects wont be visible for at least two more years. But if Obama is still in office when Race to the Top

starts to show results, or not show results, then he will be held accountable, she says. Then well be able to

say, Was this a failure that cost several billion dollars, or are we tinkering toward something promising?

An Education Department progress report on how well, or in some cases, how poorly, the winners of the

Race to the Top competition are implementing the promised changes shows that some states are stumbling

in serious ways.

The Way to Waivers

Race to the Top was a precursor to the education law waivers.

I think that because people had gotten used to the idea of Race to the Top, and the enormously positive

media coverage of it, it then seemed less brazen for the administration to take a similar approach to

waivers, says AEIs Hess.

But the waivers are more adventurous, as they effectively replace congressionally approved goals with

policy prescriptions from the Obama administration.

We acknowledge that NCLB allows the secretary to grant waivers for existing provisions under the law,

Florida Republican Sen. Marco Rubio wrote in a letter to Duncan last September. But nowhere does the law

authorize waivers in exchange for the adoption of administration-preferred policies. This initiative is an

overstep of authority that undermines existing law, and violates the constitutional separation of powers. The

responsibility for legislating lies with Congress, and forcing policy reforms through NCLB waivers violates

this most basic of constitutional structures.

Furthermore, he wrote, I am concerned that the administrations requirements for granting a waiver from

NCLB would entail states having to adopt a federally approved college and career ready curriculum: either

the national Common Core standards, or another federally approved equivalent.

Despite agreement on both sides of the aisle that the decade-old law is too restrictive and has driven down

standards for elementary and secondary education, ideological differences on issues such as accountability

and teacher evaluations are preventing Congress from reauthorizing and revising the education law.


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Strings Attached

States are wary of No Childs accountability requirements, particularly the 2014 deadline that requires every

student in a school to be proficient in reading and math or else have the school be labeled as failing and

subject to sanctions, including being shut down.

In response to lobbying from the states, Duncan, with direction from the president, offered conditional

waivers.

The conditions the changes states must put in place overlap with the changes being sought under

Race to the Top.

States must adopt the common academic standards or work with their state higher education system to

devise standards that are college and career ready.

They must develop a new accountability system based on student progress, as well as a new teacher

evaluation model that includes student performance as one measurement.

States must intervene at the poorest-performing 5 percent of schools and in most cases implement one offour turnaround strategies: replace the principal, replace the principal and up to half the teaching staff, turn

the school into a charter school or close it.

In an additional 10 percent of schools identified as having low graduation rates, big achievement gaps or low

performance in student subgroups, districts must develop strategies for helping students with the greatest

need.

Explicit conditional waivers were a first for the department. According to the Congressional Research

Service, the Education secretaries had issued 634 waivers to the law between 2002 and 2009. But only five

of them had any conditions attached, and in each of the five instances . . . the conditions specified werestatutory requirements that the entity had to meet regardless of the receipt of the waiver. That is, none of the

states that were granted waivers were required to take any actions beyond what was already required by

law in order to receive the waiver.

The waivers took on a partisan tinge when Obama announced them as part of his we cant wait campaign

theme directed at the GOP in Congress.

At a time when we have to get better faster than ever before, Duncan said in the interview, its crazy that

we have a law thats stifling creativity and innovation. Its very, very punitive. The only reward for success is

not being labeled a failure.

Whether supportive or critical of the administrations efforts, policy experts on both sides of the aisle agreed

that Obama and Duncan are walking a tight line. Flexing their muscles any more could result in backlash,

they said.

The question now is, are they legally and constitutionally allowed to go any further? Cohen says. My

sense is if they stepped much further, they would get a lot of push-back.

The Obama administration has been very aggressive in its use of federal authority and federal money to


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promote a reform agenda, says Michael Petrilli, exective vice president of the right-of-center Thomas B.

Fordham Institute. It essentially received a carte blanche from Congress on Race to the Top and really went

much further than the legislative language allows. The waivers have completely superseded the legislative

branch to push their reform agenda. They have been much more aggressive than any other administration.

The administration, far from retreating, appears ready to apply its method in the field of higher education if

necessary.

In a plan unveiled Jan. 24 during his State of the Union address, Obama fired a shot across the bow of

postsecondary institutions. Let me put colleges and universities on notice, he said. If you cant stop tuition

from going up, the funding you get from taxpayers will go down.

Obamas plan would shift federal dollars for campus-based aid programs away from colleges that do not

keep net tuition down and toward those that are affordable, provide good value and serve a relatively higher

number of low-income students.

The plan includes two competitive grants: a $1 billion expansion of Race to the Top for public higher

education, and the creation of a $55 million program for colleges and nonprofit organizations that develop

plans to boost productivity and quality.

The package of proposals once again emphasizes the classic Obama education philosophy: hold schools

accountable in an effort to raise quality and keep costs down.

And once again, Obama has identified a policy area where there is wide bipartisan agreement and offered a

strategy that compels higher education institutions and states to rethink the way they operate. In this case,

lawmakers from both sides of the aisle agree that states and colleges havent done enough to keep college

affordable, especially for low-income students.

Tuition costs have outpaced inflation for decades, according to College Board data. In the past year, for

example, in-state tuition and fees at public four-year institutions increased 8.3 percent, while inflation was

about 3 percent. The federal government now provides half of undergraduates grant aid, compared with

about a third a decade ago, and student loan debt eclipsed credit card debt last year.

The president called on Congress to write and pass his proposals through the legislative process, but Cecilia

Muoz, director of the White House Domestic Policy Council, said the administration would not hesitate to

flex its executive authority to make the changes itself.

In the case of higher education or secondary education, Congress has the recourse of cutting off funds if it

objects to the way an administration is using them.

But thats a rare remedy and rarer still in an era of divided government. So Duncan has a free hand.

He was so empowered in Chicago for so long, that for him to have come to D.C. and be more of a

figurehead would not have been a natural role for him, said Cohen. Hes enjoyed it. And he has made it

very public that he would like to continue on if Obama is re-elected.

FOR FURTHER READING:Senate draft bill, 2011 CQ Weekly, p. 2227; Race to the Top (PL 111-5), 2009

Almanac, p. 7-3.


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Documents

Duncan Shows Congress the Way Around Gridlock