CQ WEEKLY – COVER STORY
March 10, 2012 – 12:19 p.m.
Duncan Shows Congress the Way Around Gridlock
By Lauren Smith, CQ Staff
Education Secretary
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After all, every administration knows there are ways to work around the legislative branch. And that’s just what Duncan is doing. In fact, as he works to change the ways of schools in America, he’s 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 and gave 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 to school 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 administration’s approval.
There’s 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 and replaced it.
Duncan Shows Congress the Way Around Gridlock
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 administration’s election year “we can’t wait” campaign against Congress.
Their approach infuriates Republicans on Capitol Hill. These are changes “he wanted made, not changes that we put into law,”
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 areas with considerable bipartisan support. That’s offered some protection for the administration.
For example, Republican Sen.
But when Obama unveiled the entire plan in detail at a highly publicized White House event, Tennessee’s Republican governor,
And no less a GOP hero than New Jersey Gov.
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
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In the field of primary and secondary education — where the federal government barely trod until enactment of the education 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.
Duncan Shows Congress the Way Around Gridlock
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 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. “It’s 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, ‘I’m going to do something about an unpopular law,’ ” says Frederick M. Hess, director of education policy at the American Enterprise Institute. From the administration’s perspective, he says, “it’s 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 Obama’s “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. “We’ve now created a precedent where to get out of something that’s been deemed a failed law,” a state must go along with the substitute approved by Washington. It’s 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, we’ve seen extraordinary change in the country. We’ve seen more changes in the last two and a half years than we’ve 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 hasn’t 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 wasn’t my first choice. It’s still my preference for Congress to move a bill. But we have to play the cards we’re 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 stifle 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 Duncan’s 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 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.”
Duncan Shows Congress the Way Around Gridlock
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 Child’s 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 don’t 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 they’ve 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 didn’t 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 didn’t go to every state, that didn’t 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 administration’s 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 wouldn’t 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 president’s 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 Obama’s Race to the Top initiative is simple,” wrote GOP members of the House Education and the Workforce Committee. “U.S. Secretary of Education
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.
Duncan Shows Congress the Way Around Gridlock
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 don’t pass muster.
That political cover became apparent early in the Republican presidential primary contest when then-candidate
Opinions differ on the success so far of Race to the Top. Cohen of the New America Foundation says the effects won’t 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 we’ll 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 AEI’s 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.
“Furthermore,” he wrote, “I am concerned that the administration’s 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.
Strings Attached
States are wary of No Child’s 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.
Duncan Shows Congress the Way Around Gridlock
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 of four 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 were statutory 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 can’t 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, “it’s crazy that we have a law that’s stifling creativity and innovation. It’s very, very punitive. The only reward for success is not being labeled a failure.”
Whether supportive or critical of the administration’s 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 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.
Duncan Shows Congress the Way Around Gridlock
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 can’t stop tuition from going up, the funding you get from taxpayers will go down.”
Obama’s 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 haven’t 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 Muñoz, 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 that’s 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. “He’s 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.