The Federal Government Is Not a State, and ESEA Does Not Give Arne Duncan Mandate Authority

Yesterday’s big news (regarding ObamaCare’s subsidies in states with federal exchanges) is that the judiciary actually expects the executive branch to pay attention to the clear language of laws passed by the legislature. (Update: At least, the D.C. circuit does.) That this lesson in Civics 101 is news at all tells you something about the disrespect the Obama administration has shown to our Constitutional system. Congress may be semi-paralyzed, but the White House and the federal agencies still aren’t allowed to write the laws themselves.

Yet that’s exactly what Arne Duncan and his Department of Education continue to do when it comes to their interpretation of the Elementary and Secondary Education Act’s waiver authority. He surely has the right to offer greater flexibility to the states when it comes to the law’s “adequate yearly progress” measures and other parts of its accountability system. What he has no constitutional right to do is dream up new mandates out of thin air and make flexibility contingent upon their embrace by supplicant states.

Let’s follow the example of the D.C. Circuit and examine the clear language of the applicable law. Section 9401 of ESEA plainly states that “the Secretary may waive any statutory or regulatory requirement of this Act” (with some noted exceptions). It says that states should describe, in their waiver requests, “How the waiving of…requirements will increase the quality of instruction for students and improve the academic achievement of students.” But it grants no authority for the Secretary to place conditions on those waivers.

Yet the Department’s waiver policy says that, in order to receive waivers, states “must submit a request that addresses each of the following four principles, consistent with the definitions and timelines described later in this document, to increase the quality of instruction for students and improve student academic achievement in the State and its [districts].” Note the sleight of hand. The law expects states to explain how waivers would “increase the quality of instruction” and “improve academic achievement.” The Department requires adherence to its preferred “principles” as the only routes to such improvement.

Further, the Department forces states to pledge allegiance to “each” (meaning all) of the four principles—even when these are not germane to the specific flexibility being requested.

What are these principles?

1. College- and Career-Ready Expectations for All Students
2. State-Developed Differentiated Recognition, Accountability, and Support
3. Supporting Effective Instruction and Leadership (i.e., teacher and principal evaluation)
4. Reducing Duplication and Unnecessary Burden

All fine-sounding principles, maybe even laudable, but try to find a place in ESEA where the Congress declared that a state’s waiver would hinge on its embracing all of them—and satisfying the Secretary that it will indeed implement them all.

As a result of the all-or-nothing system dreamed up on the seventh floor at 400 Maryland Avenue, states that wanted flexibility on accountability (number two) had to abide by the Department’s new rules on teacher evaluations (number three). And so forth. Where’s the legal rationale for that?

To be sure, numbers two and four are legitimate exercises in flexibility, because they relate directly to ESEA’s accountability and reporting requirements. But numbers one and three have no basis in the law at all.

Let’s home in, in particular, on the teacher-evaluation requirement, as that’s the one that’s tripped up several states, including California, Washington, and, until recently, Illinois. ESEA says not one word about evaluating teachers. (Go ahead, search it yourself.) Some have argued that the legal basis for this mandate can be found in section 1111(a)(8), the so-called “equitable teacher distribution” requirement, which asks states to submit plans to the Secretary that describe “steps that the State educational agency will take to ensure that poor and minority children are not taught at higher rates than other children by inexperienced, unqualified, or out-of-field teachers, and the measures that the State educational agency will use to evaluate and publicly report the progress of the State educational agency with respect to such steps.”

Read that language again. Do you see any indication that Congress intended this as a requirement that states “develop, adopt, pilot, and implement, with the involvement of teachers and principals, teacher and principal evaluation and support systems,” as Duncan now mandates? There are legitimate policy reasons to look at teacher “effectiveness,” as opposed to the credentials mentioned by the law (such as experience or qualifications). But they aren’t contemplated by the law itself. They are simply not in the law.

In fact, the Department’s brand-new policy guidance on the “equitable-distribution” requirement hearkens back to the “inputs” that are mentioned by the law (teacher qualifications and such), rather than asking states to use the results of their teacher-evaluation systems to determine whether they in fact have an inequitable distribution of effective teachers. It’s hard to imagine that this was the preferred approach of the policy types. But—speculating here—maybe the General Counsel wouldn’t go along with a mandate on teacher distribution that didn’t match the letter of the law itself. That’s precisely what Bellwether analyst (and former Obama administration official) Chad Aldeman surmised, telling Education Week’s Alyson Klein that they didn’t have a choice, that the new guidance is “using the same language and tools that NCLB allowed. Which is 12-year-old language.”

Then why didn’t those lawyers speak up three years ago when Secretary Duncan rolled out the NCLB waivers in the first place? Whatever its possible merits, he and his team, not Congress, created the teacher-evaluation mandate. And it was attached to waiver requests that have nothing to do with teacher policy, such as those related to school accountability systems. (Maybe I could be convinced that the Secretary has the authority to require teacher-evaluation systems for states that wanted out of the law’s “highly qualified teachers” mandate. But those that wanted out of AYP?)

What we need today is a state (perhaps Washington?) willing to argue in federal court that its waiver was been denied (or rescinded) for reasons not allowed under the law. I am confident that some of the courts, at least, will ask Duncan to point to the “plain language” of ESEA that gives him the authority to mandate statewide teacher-evaluation systems, particularly for states that want waivers on school accountability. Just as with ObamaCare and the question of whether the federal government is a “state,” the administration won’t have a good answer.

-Michael Petrilli

This first appeared on the Fordham Institute’s Flypaper blog.

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