NCPA - National Center for Policy Analysis

The Dangers of Legislating Education Policy from the Executive Branch

March 13, 2012

Nearly everyone in the education community agrees that the time has come to end, or seriously repair, the No Child Left Behind Act (NCLB); however, the process of doing so has become drawn out and contentious.  With Congress not moving quickly enough to reauthorize the law, President Obama has announced a way to help states get around NCLB's requirements, says Benjamin Riley of the American Enterprise Institute.  

  • Obama's 2011 Elementary and Secondary Education Act (ESEA) Flexibility plan grants certain states waivers from NCLB accountability requirements if they agree to a series of preset conditions, including adopting challenging academic standards, developing educator evaluation systems and improving the lowest-performing schools.
  • Although many states are enthusiastic about obtaining this relief, the waiver plan poses several notable risks.
  • Legally, it remains to be seen whether the executive branch has the authority to craft national education policy without the approval of Congress.
  • Politically, support for waivers may wane as states begin to implement the administration's favored policies, particularly upon implementing the challenging Common Core standards.
  • And logistically, the creation of two wholly different federal accountability regimes -- waiver states and NCLB states -- poses an incredible challenge for federal oversight.

Key points Riley makes:

  • The Obama administration's new waiver program offers states an enticing deal to escape the requirements of the No Child Left Behind Act, but at the risk of creating federal education policy chaos down the road.
  • While greater state flexibility sounds appealing, the Obama administration's attempt to legislate from the executive branch raises serious constitutional questions and entails major political and operational risks.
  • The waiver program may result in a balkanized education system in which wholly different standards undermine national progress and federal coordination.

Source: Benjamin Riley, "Waive to the Top: The Dangers of Legislating Education Policy from the Executive Branch," American Enterprise Institute, March 8, 2012.

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