Can the House and the Senate Agree on Reauthorized NCLB? Would the President Sign or Veto the Bill? The Ages-Old Federalist versus Anti-federalists Debate Being Fought Out Once Again.

With the end of the Revolutionary War the new nation stumbled along under the Articles of Confederation, a loose alliance of the thirteen colonies. No president, no judicial system, no method of collecting taxes, with unanimity required for major decisions, a dysfunctional government adrift, the Brits were sure the rebellious colonies would be back in the Commonwealth within a few years.

The Constitutional Convention convened to amend the Articles, actually the key players intended to write a constitution, a new system of government. The delegates hassled over the powers of the states versus the powers of the national government. The convention divided into the federalists, the supporters of a strong national government and the anti-federalists, the defenders of the rights of the states, the former colonies.

The final document, our Constitution, was a victory for the federalists, led by Washington, Madison and Hamilton. Slowly the national debate began; state after state fended off the critics and ratified the guiding document, the Constitution of the new nation. Madison, Hamilton and John Jay under the pseudonym of Publius, published eighty-plus essays that we would calls op eds, in major newspapers, defending and justifying the Constitution. (Read the Federalist Papers here – especially numbers 10 and 51).

One of the most effective criticisms of the new Constitution was the absence of a Bill of Rights, and, the new Congress responded by drafting the first ten amendments to the Constitution.

The Tenth Amendment was simple and straightforward,

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Education was “not delegated to the United States,” or “prohibited … to the states” and clearly was “reserved to the states.”

The fifty states created their own rules and regulations governing education. Different graduation requirements, different requirements for teachers, different curriculum, different methods of schools funding, and, in the South, segregated schools.

States with segregated school systems argued that the black school systems were equal to white school systems, and, these decisions were “reserved to the states.”

In 1954 the Supreme Court, in Brown v Board of Education, a unanimous court disagreed,

[D]oes segregation of children in public schools solely on the basis of race, even though the physical facilities and other “tangible” factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does. …

“Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system.” …

We conclude that, in the field of public education, the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.

A decade later Congress passed the Elementary and Secondary School Education Act (ESEA), a law that provided billions of dollars to the states under provisions of the law. Education was no longer solely the domain of the states.

At end of a section of the Constitution that enumerates the powers of the Congress the final clause states,

The Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

The fears of the anti-federalists, the fear that the national government would erode the powers of the states was slowly coming to fruition. The modern day federalists argue that it is the responsibility of the national government to provide for the “welfare of the people,” to create a national education policy.

Chief Justice John Marshall, in McCulloch v Maryland (1819) wrote a decision that is as prescient today as it was over two hundred years ago,

We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional.

The Obama administration has moved the needle, education policy has moved from state houses to the White House. What began as ESEA, a law to drive dollars and programs to the poorest schools and school districts, morphed under the 2002 reauthorization, to No Child Left Behind (NCLB), a law that declares ”each state shall establish a timeline for adequate yearly progress. The timeline shall ensure that not later than 12 years after the 2001-2002 school year, all students in each group described in [the law] will meet or exceed the State’s standards,“ all cities would become the imaginary town on National Public Radio, “Lake Woebegone, where all children are above average.”

The once praised, now reviled law, required states to redesign, transform, turnaround, close or convert to charter schools that did not achieve Adequate Yearly Progress (AYP) within a preset number of years. By 2015 virtually all schools in urban inner cities fall under the punitive clauses of NCLB.

Under the leadership of Arne Duncan the administration used the lure of 4.4 billion dollars, competitive grants to states, to encourage the acceptance and full implementation of the Common Core State Standards, continued annual testing of students, the use of test results to grade teachers, aggressive school closings, and a series of tests for preservice teachers, The feds also have forced states to test all student regardless of their handicapping condition or limitation of English language skills.

While Democrats and Republicans sharply disagree with many aspects of Obama/Duncan education policy initiatives, up to now they disagree with themselves more.

In January Lamar Alexander (R – Tennessee), the chair of the Senate Education Committee and Patty Murray (D – Washington), the ranking member, have slowly and cautiously constructed a bill that, to a large extent, moves the needle back to the states. The bill has progressed through the hearing stages and is currently begin debated on the floor of the Senate. A number of amendments have been proposed and a final vote on passage is expected next week. (Read Education Week summary of the amendments here)

Across the Capitol the House of Representatives passed, by a narrow vote, their own version of an overhaul of NCLB. The Republican bill is opposed by all Democrats and by almost sufficient Republicans to derail the vote – the bill passed 218-213. (Read Education Week description of the politics here).

Arne Duncan, speaking for the Obama administration is sharply critical of the House bill, and not in love with the Senate bill either.

“America’s students deserve a strong education bill that builds on the tremendous progress of the last decade and supports opportunity for every child. Instead, House Republicans have chosen to take a bad bill and make it even worse …”

For the Obama administration the best outcome would be the status quo, no reauthorization means no erosion of the current sweeping powers over education policy.

With the passage of bills in both houses the next step is for the leadership of the houses to appoint members to a joint conference committee – an attempt to craft one bill from the widely differing House and Senate bills. At this point it appears to be a heavy lift: the Republican bill barely passed the Republican dominated House – however – we are moving towards November, 2016.

If the bills are reconciled and returned to the respective houses they face an up or down vote. If the reconciled bill is voted up in both houses it moves to the presidential desk.

If the President vetoes the bill he angers Democrats who have expended enormous energy to bring the bill forward, and. if the President signs the bill he is admitting that a core of his legacy was flawed. A presidential veto could result in an attempt to override the veto with many Democrats and Republicans supporting the override.

If you haven’t noticed we are in the midst of the race to the White House – about fifteen Republicans and a half dozen Democrats are on the campaign trail. The first set of candidate debates are scheduled for next month and you know the candidates are already crafting responses to NCLB reauthorization questions. Senator Rubio was not in the Senate for votes on the amendments- he was out campaigning.

Normally I would say, no way, the corrosive politics of our era almost guarantees that throwing hand grenades are more palliative than crafting solutions. However, the bill is being managed by Lamar Alexander, a highly skilled, highly respected legislator. Alexander served as Secretary of Education in the Bush administration, and, this would be the crowning achievement of his long tenure.

The key question: do Senate Majority Leader McConnell and House Speaker Boehner want an education bill? Would a reauthorized NCLB help or hinder the Republican candidate in 2016?

The leaders appoint members to the conference committee with instructions – – if Speaker Boehner appoints members who represent the well-respected members from the Republican party, if the instructions provide room for compromise, a reauthorized bill might be possible.

Obama would argue that Congressional dysfunction requires an activist president who pushes the boundaries of his powers. Many civil rights organizations support the President; organizations that are traditional allies, i. e., the teacher unions, are on opposite sides of many aspects of the reauthorization battle. The classic struggle over the power of the executive versus the power of Congress and the states is being played out before the American people.