Lawless Policymaking

So I went on vacation for a week and missed the whole differentiated consequences pilot project thing. Alas. But it's interesting to see it from a little distance. A few thoughts:

For readers not steeped in NCLB arcana--and really, what's the matter with you--Secretary of Education Margaret Spellings announced that she would allow 10 states to change what they do with schools that fail to make "adequately yearly progress" under NCLB. As written in the law, AYP is binary standard--you make it or you don't, and the law doesn't distinguish between schools that miss the cut with one group of students by an inch and those that miss with all their students by a mile. NCLB critics say this is simplistic and unfair, and they have a point. A somewhat overblown point, since states have adopted a range of statistical gimmicks to prevent schools from missing AYP by any amount, and because you have to miss AYP for multiple consecutive years for consequences to really kick in. But a point nonetheless.

The pilot project will allows states to react with (presumably) more resources, support, and pressure in the really bad schools than in those on the margins. It will only be open to states that have done a reasonably good job of implementing the law--e.g. no track record of making AYP determinations six months after the school year begins--and that have identified a substantial percentage of schools as needing improvement. These are all good ideas--there's no reason to have differentiated consequences in a state like, say, Wisconsin, where only 4 percent of schools miss AYP. There's nothing to differentiate when all your schools are above average.

This is not, in the strictest sense of the word, legal. The black-letter law is pretty clear: If you want federal money, you have to implement an accountability system that works as follows. There are no sections or subparagraphs that say The Secretary of Education may at her discretion alter or ignore the previous subparagraphs if people seem to agree they're not written well and Congress doesn't get around to reauthorizing the law on schedule. But this is nothing new; Sec. Spelling did the same thing with a "growth model" pilot project a few years ago, which allowed states to rate schools based on year-to-year improvement, rather than absolute levels of performance.

Sec. Spellings can do this for a simple reason: nobody objects. She's using what amounts to an extra-legal, consensus-driven process of amending the law without going through the whole hassle of introducing bills, havings votes, getting lobbied, etc. etc. The check on this method is that anyone with standing can derail it simply by saying so: If Senator Kennedy, Representative Miller, Representative Boehner, or any of the major interest groups hated the idea, it wouldn't be happening. But since the only real objections have been "it doesn't go far enough," the process goes ahead. It's actually a pretty efficient when you think about it.

It's also interesting to think about the long-term implications for NCLB reauthorization. My best guess is that nothing moves until 2010 at the earliest. That would still be a faster turaround than the Higher Education Act, which nearing the 10th anniversary of its last incarnation. What happens if, in the meantime, this Secretary of Education or the next one continues to pick off the law's major flaws, one by one? A couple of predictions:

First, it will be become increasingly clear that NCLB is not identifying schools as low-performing because it's horrendously inaccurate and arbitrary but because those schools are, in fact, low-performing. This is what happened with the growth model pilot project, where it turned out that most of the schools that look bad when judged by an absolute standard also look bad by a growth standard. Students just aren't learning there. Similarly, despite what you may have read in the newspaper, NCLB has not resulted in states coming down on large numbers of schools like a ton of bricks. It is simply not happening. In fact, if states takes the terms of the pilot project seriously, a reasonably likely outcome is that more schools will be subject to legitimately serious consequences, not less.

This, in turn, should provide some clarity to the accountability debate. In the end, the NEA didn't decide to wage war against NCLB because the law is underfunded, or lacks a growth model, or lacks differentiated consequences, or relies on standardized tests of inadequate quality, even though all those things are true. The NEA rejects the idea of assessment-driven governmental accountability for public education at its core. As long as this remains the case, no fixes--regardless of how sensible they may be--will change its mind.

Update: Marc Dean Millot points out that the Secretary could cite certain waiver provisions in NCLB to justify the legality of the pilot project. Fair enough, but it's a pretty broad interpretation; waivers typically involve states coming to ED with ideas, notices in the Federal Register, etc. That's not what's going on here. The larger point still stands, which is that this is essentially a de facto NCLB reauthorization happening in increments via consensus-backed adminstrative fiat. Which is why Millot's assertion that the waiver provisions "could just as easily be used by a future (Democratic) Secretary to kill [Supplemental Educational Services] outright," is silly, there is by no means a consensus that SES needs to be killed, far from it.