Civics 101: Using The Struggle Over the Reauthorization of NCLB/ESEA as a Teaching Tool

On January 21st the US Senate Committee on Health, Education, Labor and Pensions held a hearing on the long-delayed reauthorization of No Child Left Behind, The committee chair, Lamar Alexander is hopeful that the process will actually produce a reauthorized law,

“During the last six years, this committee has held 24 hearings and reported two bills to the Senate floor to fix the law’s problems. We should be able to finish our work within the first few weeks of 2015 so the full Senate can act.”

Unfortunately, or fortunately, depending on the outcome, the hearing is only one step in the long path from idea to bill to law.

A refresher minicourse: just in case you were daydreaming on that day that your teacher taught “how a bill becomes a law.”

The 435-member House of Representatives and the 100-member Senate must pass the same bill and the bill becomes a law when signed by the president. If the president vetoes a bill both houses must override the veto with a 2/3 vote in each house.

If the houses pass different bills, which is commonplace, a conference committee made up of members of both houses attempts to reconcile the bills, if they are able to agree on a single bill both houses must pass the reconciled bill and send along to the President for signature.

Republicans control both houses which allow them to set the agendas; they control the time frame of hearings and the text of any bill. Due to the procedural rules of the Senate a bill requires 60 votes to come to the floor for discussion and an eventual vote. On the Senate side any bill must be bipartisan enough to gain sufficient Democratic votes to reach the 60 vote threshold and the party members do not necessarily vote as a bloc. The required 60 votes, or the negative 41 votes, can contain members of both parties who, for totally different reasons support or object to the bill, or to some part of the bill.

Sometime later in the session the House committee will begin discussions. The Republicans have the largest majority since the end of World War 2 and can pass any bill they choose to pass; however, there are 30-40 members on the extreme right who may not agree with the mainstream Republicans. The Republican leadership will not bring a bill to the floor for a vote unless the bill has sufficient Republican votes, the Republican leadership would not look across the aisle for Democratic votes, to do so would alienate the right wing of the party.

If the House and the Senate pass reconciled bills and pass along to the President, he can veto the bill, in effect killing the bill. It is extremely difficult to override a presidential veto. The repercussions of a veto could impact well beyond the issue, if the bill was a bipartisan bill, vetoing the bill could alienate Democrats in the Senate, who the President needs to pass, or, to block passage of other legislation.

If all goes smoothly, which is unlikely, a bill could be on the President’s desk for signature within a few months. If the process leaks into the fall it will get caught up in the 2016 presidential primary season and may fall by the wayside. A number of senators, on both sides of the aisle are flirting with a presidential run and the reauthorization bill could easily get caught up in the primary politics. Party primaries attract core voters, on the Republican side, the Tea Party, the anti-government voters; on the Democratic side the most progressive wing. Republican candidates may choose to run on an “abolish the entire Department of Education” platform while a Democratic candidate might run on a “protect the civil rights of students at risk” platform, meaning no bill would emerge.

James Madison, in Federalist # 51 eloquently portrayed the roles of the branches of government,

To what expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. .

… it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others.

But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

The 387-page discussion draft of the bill begins the political process in the Senate.

Alexander announced the committee’s first hearing this year on No Child Left Behind, and said he would hold additional hearings after conferring with Ranking Member Patty Murray (D-Wash.) He also announced beginning this week bipartisan meetings in the Senate education committee to discuss the chairman’s discussion draft, consider changes and improvements, identify areas of agreement, and discuss options to proceed.

The first hearing included two classroom teachers from New York City, an elementary school teacher who led a grassroots campaign against standardized testing (“Teachers of Conscience”) and a high school teacher from a school that uses a state-approved portfolio/roundtable exam waiver from the state as well as beginning a union contract approved peer review initiative. (Watch hearing here)

The American Federation of Teachers position supports a nuanced position on the use of tests,

We are calling on Congress to end the use of annual tests for high-stakes consequences. Let’s instead use annual assessments to give parents and teachers the information they need to help students grow, while providing the federal government with information to direct resources to the schools and districts that need extra support.

We’re calling for a robust accountability system that uses multiple measures—which could include factors like whether students have access to art, music and physical education, and whether they have support from specialists like school librarians, nurses and counselors. Such a system should allow for ideas like portfolios rather than bubble tests. We recommend a limited use of testing to measure progress—including what to do if there isn’t progress—through grade-span testing. That means instead of annual high-stakes tests, we’d have tests once between third and fifth grades, once between sixth and eighth grades, and once in high school.

Other groups will advocate for a range of approaches, John King, the former NYS Commissioner will be roaming the halls of Congress supporting the core principles of the Duncan waiver system and the continuation of annual testing that can be used for high stakes decision-making. Others will call for the elimination of any required testing leaving all decisions to the states, and, some will call for the prohibition of the Common Core and a few will call for the disbanding of the Department of Education.

Wade Henderson, who leads a civil rights organization, is wary of eliminating annual testing,

Stepping too far back from testing requirements could strand poor and minority students, said Wade Henderson, CEO of the Leadership Conference on Civil and Human Rights. “The bill, as a general matter, bends over backward to accommodate the interests of state and local government entities that have both failed our children and avoided any real accountability for their failures,” he said. “Congress must not pass any … bill that erodes the federal government’s power to enforce civil rights in education.”

Elizabeth Warren, although a liberal Democrat, also questions granting states wider powers over spending federal dollars,

“All a state would have to do to get federal dollars is submit a plan with a lot of promises,” with no guarantee of a follow through, she said. “If the only principle is the states should be able to do whatever they want, then they could raise their own tax dollars to pay for it.”

Republican chair Alexander entered a letter in the record from Carol Burris, a Long Island principal who is a sharp critic of high stakes testing, Burris wrote,

“The unintended, negative consequences that have arisen from mandated, annual testing and its high-stakes uses have proven testing not only to be an ineffective tool, but a destructive one as well,”

The Senate side has always be collegial, up to a point; the rules require cobbling together 60 votes, Republicans need Democrats.

It is likely that a bill will reach the floor with commitments for sixty votes.

In the House minority Democrats have no clout; House procedures allow the majority party to set the rules. The House Education and the Workforce Committee is holding its first organizational meeting on January 21st; there are over 200 bills that are sitting in the subcommittee on Elementary and Secondary Education that were introduced in the last session, the vast majority will die in committee.

James Madison captures the essence, the soul of our governmental process, “… what is government itself, but the greatest of all reflections on human nature. If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”

The internal conflicts within the individual houses, the conflicts between the houses and the ultimate power of the executive, to quote Madison are a “reflection on human nature.” Legislators are bipartisan when it is in their self-interest, and, for the last few years legislators have resisted “coming together,” ideology is trumping pragmatism.

The passage of a reauthorization of the Elementary and Secondary Education Act (aka, NCLB) would be the crowning achievement of Alexander’s career.

I am optimistic.

The Battle Over the Reauthorization of NCLB and 2016 Presidential Politics.

Hours after the November election talking heads began musing: why did the Democratic voters abandon the party? A large chunk of the Democratic voters are teachers, the heart and core of the party and living in each and every congressional district. The Duncan-Obama policies have angered and alienated teachers for years; however, a Democratic strategist told me, “Where are teachers going to go? Not the Republicans.” He was wrong, they had someplace else to go, they could stay home.

The progressive wing of the Democratic Party leads the education reform movement; Arne Duncan became the archangel, the spear carrier of the federal assault on public schools, parents and teachers. Annual high-stakes testing, punitive teacher evaluation and Duncan’s cheering the Vergara decision to strip teachers of tenure, all from the Obama administration playbook.

2014 was a Democratic disaster, record low turnouts and teachers staying home or voting for a third party.

Across the nation there is a cyber-revolution, blogs and tweets and Facebook pages reach millions of readers, teachers and public school parents. Long Island Opt Out (See Facebook page) has over 20,000 members, the Network for Public Education (NPE) has over two hundred bloggers who spin out post after post and tweet after tweet. What is so fascinating is this cyber-revolution was not organized by teacher unions; it is truly a grassroots movement, blog by blog, tweet by tweet.

Education moved from the back burner to become the darling of the progressives and the reaction, the pushback, has grown from an annoyance to a tsunami.

Millions of angry teachers and parents, locally organized on cyber platforms: where will they go in 2016?

Suddenly the long simmering reauthorization of No Child Left Behind (NCLB) has major political implications.

Should the Republicans pass a bill that the president can sign, or, craft a bill that he is likely to veto?

Should the Democrats support Republican bills or urge the president to veto a bill that erodes key sections of NCLB?

Politico muses,

… eventually Republicans will have to decide whether they can come to an agreement with the White House.

Alternatively, they could pass a hardline conservative rewrite of NCLB and reap the political points as the 2016 elections move into full swing.

That’s the most likely outcome, the president vetoes a long-awaited rewrite of NCLB, “and Republicans have a bill that they could run on.”

A little history:

As criticism of NCLB continued to grow in September 2011 the Republicans rolled out a plan to reframe NCLB,

The accountability bill would instruct states to establish college-career standards, without telling them what that entails. It would continue to require annual assessments in reading and math in grades three through eight, and once in high school, as well as in science, and it would maintain disaggregation reporting requirements. States would be required to maintain a uniform system of accountability, which could incorporate growth rates or graduation rates or other measures, and to identify at least the lowest performing 5 percent of Title I schools. The law would require states to use one of six turnaround models for those schools (a modified version of the four current models, a rural model which offered leeway, and one that states could devise with an okay from ED)

The proposal consolidates based on fiscal year 2011 spending levels, collapsing 59 programs into two pots and give states and districts near-total leeway in spending those funds.

The Democrats for Education Reform (DFER), the leaders of the progressive wing of the Democratic Party and strong cheerleaders for Obama-Duncan policies lambasted the Republican proposals which died in the Senate without White House support.

The Obama victory in 2012 moved the parties further away from a bipartisan NCLB bill; a Democratic bill in the Senate, Republican bills in the House, and, the administration taking the waiver route, granting state-by-state waivers allowing Duncan to bypass Congress.

Monte Hall, the leader of Fairtest, bemoans the approaches of both parties,

Both houses of Congress are starting to take another crack at rewriting the flawed No Child Left Behind law through the long-overdue reauthorization of the Elementary and Secondary Education Act. However, the Democratic bill … and likely bills from House Republicans will be so different that chances of final passage approach zero.

With the 2014 midterms out of the way and the Republicans in firm control of both houses, the incoming chair of the Senate Education Committee Lamar Alexander is aggressively crafting a bill and hoping to gain the support of now ranking member, Democrat Patty Murray.

A week after the November midterms Alexander responded in an interview,

What’s your first priority?
Our first priority is to fix No Child Left Behind. The Republican proposal to fix NCLB would give states the option — not mandate — to take federal dollars and let those dollars follow children to the schools they attend. We want to expand choice, but my view is that the federal government shouldn’t mandate it. … Republicans would [also] transfer back to states the responsibility for deciding whether schools are succeeding or failing. Tennessee, Texas or New York would decide what the academic standards would be, what the curriculum would be, what to do about failing schools and how to evaluate teachers.

Do you support the Common Core State Standards?
I support giving states the right to decide whether to [adopt] the Common Core or not.

Civil rights organizations are already campaigning against any changes in NCLB that will eliminate the disaggregation of scores and will rigorously oppose the rolling together of the almost sixty separate titles within NCLB; proposals that give states wide discretion for the expenditure of federal funds at the state and local level.

Politico reports,

Part of the difficulty in rewriting the law is that the most hated parts of the bill are deeply intertwined with its heralded civil rights provisions: The testing requirements, for example, allowed the government for the first time to spotlight the achievement gaps between white students from higher-income families and their peers when those test results were broken down by race and socioeconomic status. NCLB put a public spotlight on schools and districts that were falling flat when it comes to helping disadvantaged students — and pressed them to improve when no one else would.

For the most vocal critics of NCLB the testing requirements and teacher evaluation based on student tests scores are the most toxic elements of the law.

[Alexander] and [House Ed Committee chair] Kline have said they’re open to scaling back annual testing, though some suspect they’re capitalizing on the chance to grab hold of an issue they can use as a bargaining chip down the line.

Anti-testing advocates say tests cut into instructional time, forcing teachers to teach only tested content and taking creativity out of learning for students. They see a number of solutions: Students could be tested every other year or a handful of times throughout their school careers, or a sample of students could be tested rather than an entire class.

Congress is back, and in the Senate the Education Committee will move quickly to craft a bill, perhaps as early as February.

The House is more complicated, while the Republicans hold an overwhelming majority, the largest since the post WW 2 majorities, the Republicans are divided. Two dozen Republican members voted against Speaker Boehner and will support bills that oppose the Common Core, oppose testing and support dramatic cuts in education funding, for some the only “acceptable” bill is one that dismantles the US Department of Education. A Tea Party influenced bill would mean enormous cuts to the poorest schools and school districts in the nation.

In spite of Republican majorities in both houses the bills coming out of the House and the Senate will differ, and, probably differ substantially. The conference committee will have to combine the bills, which leads us to the 2016 presidential strategizing.

Six years into his remaking of the education system across the nation Duncan will fight as hard as he can to fend off any attempts to erode his policies. Democratic campaign planners are mulling the options, allow the Republican bill to pass, and claim credit for stark changes in NCLB, or assuaging the civil right advocates, the minority voters and the progressive wing of the party and urge a presidential veto. Perhaps the Democratic game plan should be to remove the issue from the table and urge the president to sign the bill and move on.

Senator Lamar Alexander has been deeply involved in the education for decades and clearly sees the reauthorization of NCLB as capping his illustrious career.

Gary Herbert, the Utah Governor was a guest on C-SPAN this morning, the callers asked education question after education question. Herbert, a Republican is also Vice Chair of the National Governors Association. Herbert is not necessarily a supporter of the Common Core; he is a supporter of high standards that are developed at the state level; his answer to every education question centered on federalism, the “partnership” between Washington and the states and the expansion of federal powers at the expense of states.

I believe it is likely that the final bill will ease the annual testing requirements and push many of the accountability measures to the state level, as well as consolidating the many titles and grant states wider discretion in the expenditure of fed dollars. Unfortunately the bill will probably reduce fed funding and may change the allocation formula.

You may say, why is everything politics, why can’t the Congress do what is “best for children”? How do you define “what is best for children”? And, from the 1789 Congress to the current 214th Congress it is always about politics.

Parents and teachers will not go away, if the feds push greater authority to the states the blogs and tweets will simply concentrate on the local legislators. Politics has changed, and I believe, for the better.