Controversy swirls around state’s acceptance of President Obama’s waiver
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Published: 10-Feb-2012

A former general counsel and former deputy general counsel of the U.S. Department of Education believe the agency is putting the United States on the road to a national curriculum. A new report says the agency has no legal authority for some of recent actions, including the waiver process Oklahoma education officials celebrated yesterday. 

The two national scholars believe the federal agency where they once worked is, in several steps (including the No Child Left Behind waivers) acting in defiance of federal laws that forbid federal direction, supervision or control of curricula, instruction or instructional materials. 

In a new report for the Pioneer Institute, Robert S. Eitel and Kent D. Talbert concluded (in Eitel’s words), “The Department has designed a system of discretionary grants and conditional waivers that effectively herds states into accepting specific standards and assessments favored by the Department.”

The pair of former federal education officials are not alone in their pointed conclusions. Bill Evers of Stanford University’s Hoover Institution, who contributed to the Eitel-Talbert investigation, says the U.S. Department of Education does not have legal or statutory authority to move policy in the direction it is presently taking. 

Evers said, “There is no constitutional or statutory basis for national standards, national assessments, or national curricula. The two testing consortia funded by the U.S. Department of Education have already expanded their activities well beyond the limits of the law. As this paper recommends, the actions of the Department warrant congressional hearings.”

The Pioneer Institute, which operates from Boston, coordinated the new report, with support from The Federalist Society, American Principles Project, and the Pacific Research Institute. 

Jim Stergios, executive director of the Pioneer Institute, said, “Proponents of national standards, curriculum and tests claim they’re merely a logical extension of previous federal education initiatives. The key difference is that prior to Race to the Top and the recently announced federal waivers, the U.S. Department of Education abided by statutes explicitly prohibiting federal direction, supervision, or control of curricula or instruction.”

Eitel and Talbert make recommendations in their new report, “including the enactment of legislation clarifying that the Department cannot impose conditions under its waiver authority, as well as congressional hearings on Race to the Top and waivers to ascertain the Departments compliance with federal law.”

After the Obama administration waiver was announced yesterday, Oklahoma Superintendent of Public Instruction Janet Barresi and Governor Mary Fallin celebrated the “flexibility” they believe the state will gain to implement Oklahoma reforms. The Republican superintendent reviewed legal changes passed last year or promulgated recently, saying the state’s approach would incorporate the Obama waiver but reply on state laws to do so. 

In a January 26 summary of highlights of the state Board of Education meeting, Baressi’s staff noted passage of “a resolution to fully support Superintendent Janet Barresi’s goal of having all students in Oklahoma college, career and citizen ready by the year 2020, known as her C3 Plan. The resolution recognized adherence to the Achieving Classroom Excellence Act, enacted by the state Legislature in 2005, which requires all graduating seniors, beginning this year, to have passed four of seven end-of- instruction tests (EOIs).
 
“The resolution also recognized the leadership of the Legislature in passing reforms such as the Teacher and Leader Effectiveness Evaluation process, third-grade graduation requirements, the A-F grading system for schools, adherence to Oklahoma C3 Standards, and ensuring state student assessments will be rigorous through the Partnership for Assessment of Readiness for College and Careers (PAARC) consortium. 

“Most notably, the resolution recognizes that the repeal of any of these reforms would result in the nullification of Oklahoma’s waiver, if granted by the U.S. Department of Education, from No Child Left Behind.”
 
Lindsey Burke of the Heritage Foundation argued within hours of yesterday’s announcement from Washington, “Having national organizations and the Department of Education dictating standards and tests will effectively centralize control of the content taught in local schools. It’s an unprecedented and dangerous federal overreach.
 
“Circumventing Congress by granting strings-attached waivers from the White House shows a disregard for the legislative process and a not-so-veiled effort to further grow federal control over education. There are No Child Left Behind alternatives being advanced in Congress like the A-PLUS proposal, which would fundamentally reduce the federal role by allowing states to completely opt out of NCLB — with no strings attached.”

U.S. Sen. Jim Inhofe commented the waiver granted yesterday “does return some control to the state level,” but went on to reiterate concerns over unfunded federal mandates, new federal controls or strictures, and other policy concerns.

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