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Untangling public school governance: a proposal to end meaningless federal reform and streamline control in state education agencies.

      1. GOALS 2000 AND THE IASA
        a. Race to the Top Fund
        b. Blueprint for Reform
        c. NCLB Flexibility
      1. NCLB'S DEMISE
        a. "Perverse Incentives".
        b. Lack of Enforcement
      2. A RACE TO THE TOP?
        a. Mandated Flexibility
        b. Inadequate Funding
        a. NCLB Flexibility: Another Layer of Reform
        b. Congress's Bill Package: The True Surrender
        a. The Sustainability of "Rapid Fire Reforms"
        b. Implementation of Innovations
        a. Local Solutions for Local Problems
        b. Continuation of Successful Solutions
        c. Innovation of New Solutions
        d. A Combination of Top and Bottom Down

"School reform today is like a freight train, and I'm out on the tracks saying, 'You're going the wrong way!'" (1)


Jane is a new teacher at John Adams High, and it is her first day of work. Although her students do not report to school until the following week, her schedule is full. First she must set up her classroom, then attend her first professional development session, and finally, meet with her mentor teacher.

Excited to see her classroom, Jane arrived early. When she got inside, she saw a Smart Board, which was one of the hottest pieces of technology at the time. Jane went to the school office to search for the cables needed to make the board work. There, she discovered that they did not have the cables and that none of the boards actually work. As it turns out, the technology grant that the school used to purchase the boards had been depleted before they could provide training on the boards. Since no one knew what to do with the boards, the majority of the cables had been left lying around and were either lost or stolen. Even worse, upon returning to her classroom, Jane quickly found that her board was permanently mounted on top of the traditional chalkboard, leaving no space on which to write notes. As a result, Jane's only option was to write notes on sheets of bulletin board paper that she taped to the multi-thousand dollar piece of equipment.

Moving on to the next task of the day, Jane went to the professional development session. The session was entitled Reading Rocks: Kids Who Read Succeed. According to the presenter, this new program was built on the premise that music helps struggling readers improve their reading skills. The teachers were given stacks of handouts detailing the strategies that this reading program employs, which included "funky flute phonics" and "supersonic stress patterns." The teachers were told to take the information home to learn about this program over the next week, and that starting Monday, the first day of school, all teachers must implement this program in their classrooms for at least twenty minutes per day. Jane asked if this applied to all teachers because, after all, she was a French teacher, and her class was only fifty minutes long to begin with. The principal intervened and reiterated that all teachers, regardless of their subject matter, were required to use this program because the school's reading scores were low, and if the scores were not raised this year, the school would be subject to federal sanctions.

Finally, the day was coming to a close, and the spunk that Jane felt that morning was waning. Before she could leave school, however, Jane went to her meeting with her assigned mentor, Ms. Smith the Spanish teacher. Jane expressed her concern about Reading Rocks to Ms. Smith--specifically how she was concerned that, with twenty minutes of reading and only thirty minutes of French, she would never make progress in her subject matter, and that she was not qualified to teach reading. Ms. Bardelfino replied, "Look, Jane, you're new, so I'll explain how it goes. Reading Rocks is one of the new, federally backed reforms that we needed to adopt to get funding. There were fifty like it before, and there will be fifty more in the future. It is a phase, and it will not last past October. So, for the first month of school, pass out the sample worksheets that they gave you, play the CD, and keep records that you implemented the program sufficiently. Before you know it, they will have moved on to something else, and Reading Rocks won't be your problem anymore."

Unfortunately, this story is not an exaggeration of the realities of public education today. (2) "In spite of a national penchant for 'tinkering toward utopia,' ... ceaseless efforts to improve schools have yielded uneven and unpredictable results." (3)

This Comment attempts to unravel the cause of this perpetual struggle and proposes a starting point for meaningful reform.

Education is a vital part of society, affecting every person in America in some way; therefore, interest in education has always been high. From the founding of public education, leaders struggled over how schools should function. (4) As a result, school governance was frequently reconfigured, and the authority to control schools was incrementally centralized into larger and larger governing bodies. (5) As time passed, the federal government, although it always played at least a limited role in education, became more and more influential. (6) With the passage of the Elementary and Secondary Education Act in 1965, the floodgates burst, and the federal government entered the arena of education reform with unprecedented force. (7)

The stream of federal involvement has continued ever since. Reforming the United States' public education system has become one of the nation's most enduring hot topics. Presidents Clinton, G.W. Bush, and Obama have championed reform, often gaining significant political momentum from their education platforms. (8) Unfortunately, due to education reform's "celebrity status," the flashiness of proposed reforms often outweighs their actual capacity to effect change. James E. Ryan offered this reflection:
   [E]ducation reform is notoriously beset by fads.... Most often,
   because the reforms (predictably) fail to produce significant and
   uncontested improvements in a short period of time, politicians and
   the public lose interest, especially if another new reform is
   dangled in front of them, promising the impossible. Demonstrating
   again the perpetual triumph of hope over experience, politicians
   and the public often discard the "failed" reform and rush to
   embrace the new one. (9)

Thus, since the mid-twentieth century, the federal government has tossed reform after reform at schools. (10) When their efforts do not work after a short period of time, officials become frustrated or crack under societal pressures and try something new. (11)

The result of this method is dismal. Reforms are not researched before they are implemented, nor are they given time to succeed. (12) Federal reforms create policies, but do not provide for implementation. (13) Compounding this implementation problem is the fact that educators often lack the interest or the capability to implement the utopic policies that they had no role in developing. (14) Because federal reforms are often insufficient, local and state governments also implement reforms, which results in layers of rules and reforms that have been stacked one on top of the other, often in conflict with each other. (15) The result is "a vastly complex enterprise, shaped by many forces, such as state legislatures, governors, chief state school officers, multiple levels of bureaucracy, various levels of government, the courts, public and private-interest groups, textbook publishers, testing services, foundations, think tanks, colleges and universities." (16) Not only does this create considerable tension between all of the varying bodies, but it also muddles responsibility and weakens accountability. (17)

Not surprisingly, this system yields dismal results. Schools have made minimal progress in both reading and mathematics even though federal involvement and spending has soared, (18) Reading scores for seventeen-year-old students taking a nationwide assessment climbed only one point between 1971 and 2008, even though federal spending on elementary and secondary education more than doubled between 1975 and 2009. (19)

A major deficiency in education reform is not a lack of interest in progress, nor is it a lack of innovation and policy; the deficiency lies in implementation of policies. As was pointed out fifteen years ago, "in the midst of the most sustained and intense educational reform effort in [fifty] years, there is much opposition to the creation of an infrastructure to achieve its goals." (20) Therefore, a broad remedy to education reform is the creation of an institutionalized body to properly implement reforms. This solution begs the question--who should this body be? One option is to continue down the current path, which would mean an increase in the federal role. Alternatively, there can be an about face, resulting in a weakened federal role and increased governance by a separate entity. Because the federal government is not in a position to expand funding and effectively implement reforms, this Comment proposes the latter option--specifically, the expansion of state education agencies so that they may implement elementary and secondary education reform.

In support of this proposal, this Comment seeks to explore the current state of education, how it became the system it is today, and why massive changes must be made. Section II navigates the evolution of school governance---specifically the roles of federal, state, and local government. Additionally, Section II gives an overview of education reform efforts in the recent past and in the present day. Section III analyzes the problems found in those specific federal reform efforts, and then broadens its focus to explain why the federal government is not suited to govern education. Section IV proposes the removal of the federal government education reform, and that reinvention of state education agencies to achieve more specialized and accountable education reform at the local level. Additionally, Section IV defends potential challenges to this proposal. Finally, Section V will briefly conclude.


An understanding of the evolution of education in the United States is vital in comprehending how to reform it. Since the founding of the United States, education reform has been incrementally morphing. This Section looks briefly at this historical evolution, starting with local control at the birth of the nation all the way to the nearly centralized state of education today, with a focus on the roles that local, state, and federal government played at each step. (21) Once the historical perspective is established, this Section will break down recent and current federal reforms and conclude with a brief look at modern state and local involvement (22).


At the beginning of the nineteenth century, as the nation emerged from a colonial period marked by strong democratic localism, American schools were privately run. (23) Local citizens had the freedom to shape their schools according to the customs and values of each individual community. (24) The result of this was "an institutional hodgepodge" composed of widely varied schools including, but not limited to: sectarian schools, private academies for the elite, schools for the poor, and schools for certain ethnicities. (25) Under this system, federal and state involvement was practically invisible.

Due to several political forces and a desire to both preserve and advance American society, common schools emerged in the 1840s. (26) These schools were meant to be a "great equalizer," and focused on teaching citizenship and ending poverty. (27) Reformers maintained that the way to achieve more standardized schools was to centralize control in state education departments. (28) Even though reformers successfully won their bid to create such departments, the idea met heavy resistance, which resulted in the creation of very weak, almost ceremonial, state agencies. (29) State departments of education only employed an average of two people--a superintendent and a clerk--and even though the legal framework for the departments existed, many local districts ignored any authority that states asserted. (30) So, even though state agencies existed in theory, that theory was most often the extent of their presence. (31)

As the nineteenth century came to a close, education was more organized than it had been historically, but it was still chaotic. Structurally, local districts formed on the town, county, or annex level--depending on each area's preference--resulting in a highly fractured system. (32) In terms of curriculum and instruction, common schools were run by layperson trustees and untrained teachers, not professional educators. (33)

As was noted, states had a theoretical presence, but little actual control. Likewise, the federal government was restrained to minimal involvement, mainly taking on the role of encouraging the development of public schools by providing land and some funding. (34) The federal Office of Education, created in 1867, did not have the power to mandate any action by the schools. (35) Its main purpose was to improve education by providing information to educators. (36) Thus, despite some changes, local control continued to be the main form of public school governance.


At the turn of the twentieth century, as the United States' population swelled and the Industrial Revolution took hold, education, like most other areas of society, began to see rapid change. Many citizens were not enchanted by the common school's progress, and people grew skeptical of the ward politicians who were running local school boards. (37) Moreover, the districts that had been created during earlier structuring efforts were much too fractured, and the leaders of the wards often advanced personal goals through the schools. (38)

To remove power from their hands, further centralization appeared to be the answer. Ward-level districts were consolidated into city-wide districts. (39) These districts, in turn, were run by one superintendent. (40) Furthermore, under the new industrial influence of science and research as a means of success, local schools began relying on education experts rather than lay trustees and politicians. (41) As new education professionals emerged, so did the modern concepts of aligning teaching to a standard curriculum and accountability. (42)

During the centralization effort of this time, federal activity remained mostly stagnant, but the states' involvement grew. (43) Despite the states' increased involvement, their role was first and foremost a supportive role, not a regulatory one, limited to activities such as participating in finance litigation, some curriculum development, and establishing parity between rural and urban schools. (44) States were not researching and formulating the substantive regulations, and they were not a threat to the local control of schools. (45) Rather, professional reformers researched best practices and reported back to state legislatures on what regulations to pass. (46) The reformers then relied on states to turn their reforms into legislation, thus shaping the modern school. (47)


Those who urged centralization boasted that, under their system, education would reach a higher level of standardization, accountability, and equality than was possible in the older, more fractured system. (48) These experts were very confident, and, for the most part, people trusted them and gave them broad power and discretion. (49) The public mostly stayed out of education, leaving it in the hands of superintendents. (50)

However, confidence shrank due to two major, post-War events: Sputnik and Brown v. Board of Education. (51) Previously thought to be world leaders in science and technology, the Soviets triumph in the space race bruised the United States' ego. (52) In looking for a place to lay blame, the public pointed fingers at public schools and the superintendents who ran them for providing students with sub-par instruction, thus leading to defeat. (53) Furthermore, professionals from outside the field of education criticized state education departments for providing an unbalanced education by serving the needs of just a few professional reformers. (54)

In addition to the challenges to curriculum and rigor brought on by Sputnik, the United States Supreme Court's decision in Brown v. Board of Education rattled the public's confidence in local schools even further. (55) As the country discovered that many of the superintendents it previously trusted were, in many cases, furthering pervasive, institutional segregation, the country began to scrutinize the social failures of schools as well. (56) The stage was now set for the entrance of the federal government and its sweeping reforms.


Despite initial hesitance to intrude on local control, the federal government began to show more concern for public education, as the societal pressures of the 1950s and 1960s proved to be too much for local control to bear. (57) The 1960s marked a massive shift to federal education reform. In 1965, President Johnson finally succeeded in passing the first substantively significant piece of federal education legislation when he passed the breakthrough Elementary and Secondary Education Act (ESEA). (58) The ESEA had two purposes: first, to further Johnson's "War on Poverty," and second, to provide incentives and sanctions for school desegregation. (59) To achieve these goals, the ESEA for the first time provided funds to schools with heightened levels of poverty in exchange for compliance with certain conditions, such as compliance with certain civil rights' laws. (60) In addition to the ESEA, the public's newfound concern for education came with an increase in lawsuits filed against local schools. (61) Consequently, the federal and state courts began establishing rights for various marginalized student groups, such as minorities, non-English speakers, females, and disabled children. (62)

This boom of activity set the pace for education governance today. Schools districts once controlled by the decisions of a single superintendent were suddenly faced with a barrage of policies created by the federal government and the courts. (63) The entire structure of school governance shifted as special interests multiplied, and the once dormant federal government churned out regulations in an attempt to fix what local control had created. (64) Although these reforms were made with outwardly noble intentions of equality, their result created a web of governance that is seemingly impossible to untangle. Michael Kirst explains:
   Today's overlapping and complex categorical aids, which restrict
   spending to specified programs and purposes, evolved as a mode of
   federal action on which a number of otherwise competing education
   interests could agree. This collection of categoricals, which
   dominated national education politics from 1965 to the election of
   President Ronald Reagan in 1980, was not the result of any rational
   plan for federal intervention but rather the outcome of political
   bargaining and coalition formation. (65)

The role of the states also changed dramatically in two ways. First, because professional reformers were no longer in agreement, state legislatures began to take sides, and as a result, states began to have a more planned and concerted role in shaping education. (66) Most importantly, however, states became the go-betweens charged with enforcing federal programs and dispersing federal funding to local schools. (67) Still, while the states' conduit role for federal funds increased state involvement, it did not increase state influence. (68) Because local districts had to apply to states for federal money, states had the opportunity to create applications and standards for granting these requests. The states, however, often did not seize this opportunity and instead made funding decisions using pre-made federal forms and "tended to rubber stamp local applications." (69)

Local districts also morphed once federal programs and funding entered the scene. Once the innovators of instruction, local districts began focusing on the implementation of federal programs in order to attain more money. (70) Indeed, "[a] study of local implementation suggests that the imperative to meet funding deadlines made states and districts forget priorities," and education suffered. (71)


In 1983, already active federal reform efforts received another boost with the publication of A Nation at Risk. (72) Written in an alarming tone, A Nation at Risk stated that the United States' educational foundations were "being eroded by a rising tide of mediocrity that threaten[ed] our very future as a Nation and a people" and called for educational reform supported by the federal government. (73) A Nation at Risk went on to list the deficiencies of the American education system. (74) Consequently, federal activity intensified as the nation reacted to this assessment, resulting in several substantial pieces of legislation from all presidential administrations throughout the 1990s and into the new millennium. (75) The following Section will evince this increasingly strong regulatory role of the federal government. Section II(E)(1) details Goals 2000 and the Improving America's Schools Act; Section II(E)(2) will discuss No Child Left Behind; Section II(E)(3) will explore President Obama's education reforms; and Section II(E)(4) will explore Congress's plan to reauthorize the ESEA.


Passed in March 1994, Goals 2000, as the name indicates, outlined specific national education goals to be met by the year 2000. (76) The eight goals to be accomplished by 2000 were: (1) every child should be ready to attend school; (2) all schools will have a graduation rate of at least 90%; (3) all students will be proficient in the core subjects, as demonstrated by their passing of state tests in grades four, eight, and twelve; (4) teachers will be provided with increased and improved opportunities for professional development; (5) the United States will rank first in the world in math and science; (6) every adult will be literate; (7) all schools will be drug, alcohol, firearm, and violence free; and (8) parental involvement will increase. (77)

Goals 2000 was an integral part of President Clinton's Improving America's Schools Act (IASA), which is the Act that reauthorized the ESEA in 1994. (78) The IASA made funding to states contingent on submitting a plan for the state's education system to incorporate the provisions of Goals 2000, along with other provisions. (79) The requisite material to be included in the plans was complex, but on a broad level, the IASA required states to include a plan for creating high quality standards and assessments and a definition for adequate yearly progress, (80) This legislation, however, distributed funds based on the submitted plan only and lacked an enforcement mechanism that would require follow through, which made it more of a series of suggestions, rather than an imposition of affirmative duties on the states. (81)


Due to the IASA's implementation problems, the year 2000 came and went with none of Goals 2000's aims being met. (82) Then, the ESEA became eligible for reauthorization again, and President George W. Bush answered this call with the No Child Left Behind Act (NCLB). (83) NCLB passed in 2002 with strong bipartisan support and aimed to provide equal educational opportunities for all students so that they could receive a quality education by at least attaining the state's minimum standards for education. (84) The legislation was sweeping. It proposed to reach its goal by addressing the following: state teaching standards, standards alignment curriculum and assessments, teacher accountability, school accountability, state accountability, teacher quality, the special needs of traditionally low-achieving students, the achievement gap, distribution of resources, flexibility to local schools, enrichment and accelerated content, access to researched strategies, access to challenging content, more professional development, and even parental involvement. (85)

The major affirmative duties imposed by NCLB include the creation of challenging standards, regular statewide testing to ensure that all students meet those standards, and the requirement that schools hire teachers who have demonstrated competence in their subject areas (better known as "highly qualified teachers"), (86) The provisions of NCLB are familiar in much reform legislation, such as the IASA; however, it is NCLB's timeline for success that is controversial, (87) NCLB requires all students to be "proficient" by 2014, a mere twelve years after the Act's passing, (88) In progressing toward this goal, states must set uniform targets of progress, known as annual measurement objectives, by which the adequate yearly progress of each school can be tracked, (89) Annual measurement objectives must increase incrementally every two to three years, and all students and subgroups of students must hit the target. (90) The subgroups, which are groups such as racial minorities and English language learners, are in place to assure that all students are progressing, not just the majority. (91) Failure to meet annual measurement objectives and failure to make adequate yearly progress results in a "in need of improvement" label and various sanctions that increase in severity. (92) The end of the road for a failing school is one of five turnaround options which include (1) chartering the failing schools, (93) (2) replacement of the staff that is tied to the failure, (3) contracting with an outside school to operate the school, (4) turning the school over to the state, and (5) other means of restructuring that make "fundamental changes." (94)

Looking back to earlier federal legislation, it becomes clear that NCLB sharply deviates from the norm--it does not make suggestions or simply earmark funding for certain goals; it mandates and ties the receipt of funds to concrete successes and failures. (95) Funding to states is contingent on reaching the mandates that NCLB puts forth, whereas previous legislation merely set goals to strive toward. (96)


The Obama administration entered education reform with fervor and urgency, and even though NCLB is still the law, this administration has nonetheless introduced a number of new reforms. In 2009, President Obama launched the Race to the Top Fund (RTF). (97) Additionally, President Obama's long-term plan, laid out in a document entitled A Blueprint for Reform, calls for reauthorization and refining of the ESEA. (98) Finally, after the Blueprint received a lukewarm reception by Congress, President Obama authorized the Secretary of Education to grant "NCLB flexibility," or waivers from certain NCLB provisions, in order to relieve the pressure of NCLB immediately. (99) Each of these separate reforms will be discussed in the following sections.

a. Race to the Top Fund

The Race to the Top Fund is designed to promote "innovative strategies that are most likely to lead to improved results for students, long-term gains in school and school system capacity, and increased productivity and effectiveness." (100) The RTF takes the form of a competition, awarding grant money to those states that submit the best plans. (101) The "best plans" include steps to enhance standards and assessments, improve their current systems for data collection and use, increase the effectiveness and equal distribution of teachers, and turn around struggling schools. (102) Peer-reviewers determine the winners, using a rubric to assign point values to certain reforms and plans. (103)

The executive branch initially dedicated $4.35 billion to the RTF, which was distributed in three phases. (104) In March 2010, during Round One, a total of $600 million was awarded to Delaware and Tennessee. (105) During Round Two, in August 2010, $3.4 billion was distributed amongst Massachusetts; New York; Washington, D.C.; Florida; Georgia; Hawaii; Maryland; North Carolina; Ohio; and Rhode Island. (106) Finally, during Round Three, (107) in December 2011, the government announced that Arizona, Louisiana, New Jersey, Pennsylvania, Colorado, Illinois, and Kentucky would share the remaining $200 million, (108) Furthermore, the government has budgeted another $550 million in the 2012 budget for further rounds of Race to the Top. (109)

b. Blueprint for Reform

The Blueprint for Reform details President Obama's plan to reauthorize the ESEA. (110) The Blueprint focuses on five core areas: (1) implementation of college and career ready standards, (2) teacher and principal effectiveness, (3) equity and opportunity for all students, (4) rewarding excellence, and (5) promoting innovation. (111) Some of the main features include increasing the rigor of the standards by working with local universities, using allocated funds to retain only the best teachers, promoting the shift of those teachers to high-need schools, and turning around, chartering, or closing those schools in the bottom five percent for achievement in the state. (112) Congress's response to President Obama's push for reauthorization was unenthused. It became clear that Congress had no intention to use President Obama's plan to reauthorize, but rather that they intended to push a package of bills through piece by piece (discussed infra, Section III(A)(4)), therefore Obama's blueprint is likely to remain just that. (113)

c. NCLB Flexibility

Finding himself in yet another stalemate with Congress, President Obama invited the states to apply for waivers to NCLB that grant flexibility from the law's rigid rules. (114)

The criteria used in determining whether a waiver will be granted is very much in line with most other reforms the Obama administration has championed, which include the implementation of "college-and career-ready" standards," "differentiated accountability, recognition, and support policies and systems," and an evaluation of administrative and reporting requirements in an attempt to rid the system of "duplicative or burdensome" requirements. (115) One of the must substantial effects is that, with a waiver, states are allowed to set different annual measurement objectives for different districts, schools, or even subgroups within a school, which would result in fewer schools failing to make adequate yearly progress and receiving sanctions, but also leads to the potential for minority groups to be left behind. (116)


Finally, as the Obama administration continues to release reform after reform, Congress introduced five new bills for approval. (117) These bills have many goals, including: elimination of duplicative federal programs created under NCLB; (118) expansion of charter schools by providing financial incentives to states who replicate or expand successful charter schools; (119) an increase in local flexibility in the spending of federal funding; (120) continuation of state standards and linked assessments as well as accountability reports linked to those assessments; (121) encouragement of effective teaching through grants for more professional development and performance-based pay; (122) and promotion of innovation though use of local competitive grant programs. (123)

As can be seen in the preceding section, the federal role in education reform has been on a rapid and steady rise. With each new reform comes a new layer of regulations with which it is increasingly difficult to comply. As will be seen in the following section, however, even as the federal government exerts its authority, activity continues on the state and local level, which only further complicates education reform and governance.


Historically a passive and secondary body, state departments of education quickly took on the role of enforcers when federal activity became commonplace. (124) As local districts resisted the proper implementation of federal programs, states took on the image of bureaucratic overseers with "clipboards and checklists." (125)

Despite this image and the perpetual struggle to gain real power, states have often been the innovators of popular educational policies. For example, NCLB was borrowed from Texas's accountability programs. (126) Charter schools were originally conceived by a Michigan teacher and initially endorsed through legislation in Minnesota. (127) School voucher programs as a method of providing choice for underserved populations have their roots in Wisconsin as early as 1989, whereas the first federally funded voucher program did not appear until 2004. (128) Connecticut is a leader in the construction of standardized tests, and produces some of the most prepared students. (129) Thus, as these few examples show, states are designing reforms even though their efforts are often stifled. (130)


As societies in the United States and around the world have advanced, the United States has grappled with how to change education to fit societal needs. Thus far, the United States' treatment of education reform has been largely reactionary, and as a result, the modern education system is an accidental patchwork of reforms and rights. (131) Furthermore, the development of varied and competing governance structures has weakened accountability and muddled responsibilities. (132)

This Section begins by analyzing the problems with the current system, and then uses these specific problems as a backdrop to analyze the overarching problem with all federal regulation of education--mainly that it creates an exoskeleton of education policy that manages to be both overly burdensome as well as insufficient to effect real change.


This Section analyzes and details the major problems found in federal reforms beginning with a discussion of NCLB in Section III(A)(1), followed by an analysis of Race to the Top in Section III(A)(2), and, finally, a critique of NCLB waivers and Congress's proposed bills in Section III(A)(3). Additionally, each section will specifically look at the tendencies of these reform efforts to act as overlays of each other. This discussion will provide a basis for further analysis of more fundamental issues to be discussed in Subsection B.


Passing with great hope and fanfare, NCLB quickly fell flat in the eyes of many, and is now generally considered a failure. (133) NCLB was the first piece of federal legislation to place tight restrictions on schools, which is a laudable goal in spite of the program's failure. Ironically, it was the tight restrictions that led to its failure. (134) In addition, many of the provisions in NCLB created perverse incentives to schools that have the potential to harm the very groups they are trying to help. (135) Further, implementation of the Act proved difficult. Section III(A)(1)(a) will discuss the "perverse incentives," and Section III(A)(1)(b) will detail the lack of enforcement.

a. "Perverse Incentives" (136)

Since its passing, critics have identified several glaring problems with NCLB. Due to NCLB's wildly unattainable adequate yearly progress goals, many schools are unable to keep up, which leads to sanctions and the stigmatizing "needs improvement" label. (137) Once a school is labeled as needing improvement, as the 2,000 schools that failed to make adequate yearly progress for five straight years have been labeled, no one knows what to do. (138) The federal government does not have a meaningful way to help schools in need of improvement other than by prescribing a few radical options that are not "always feasible or affordable." (139) Even when an option is feasible, it is unclear whether the option provided "will raise [the schools'] performance," and so the result is often only "minor tinkering" with failing schools. (140) Minor tinkering does not raise achievement. Furthermore, the structure of the NCLB and its strict adequate yearly progress requirements lead to significant problems--impeding achievement and promoting segregation. (141)

Because the "needs improvement" label garners so much stigmatization, the label puts pressure on state and local school boards to find a way to avoid this label. (142) In their panic to relieve this pressure and meet NCLB's goals, state and local school boards face four options: (1) strive in vain to reach the unattainable goal, (2) lower their adequate yearly progress goals so that they may be reached and hope that NCLB is reauthorized before the 2014 goal, (3) decline the funding attached to NCLB and thus avoid the regulations, or (4) make assessments easier or lower the cut-off score needed to be deemed "proficient." (143) Unfortunately, schools have been choosing the fourth option and lowering their standards, evidenced by the rise in student proficiency on state exams with a concurrent drop or stagnation in overall reading and math skills on national exams. (144)

Even more troubling, schools sometimes choose a fifth option of trying to weed out subgroups who keep them from making AYP. Because "schools that contain an African American or economically disadvantaged subgroup are much more likely to fail to make adequate yearly progress than those that do not," schools have an incentive to exclude low-performers. (145) This has been accomplished in many ways--first, by setting a high minimum threshold for creation of subgroups, meaning, for example, that schools would need to have forty Latino students before having to count them as a subgroup. (146) Therefore, if there are only thirty-nine Latino students, they can be lumped in with the majority and not accounted for separately. (147) Alternatively, schools can reject transfer students from traditionally low-achieving groups. (148) Finally, some schools have even labeled low-achieving students as "disabled" so that they may be exempted from testing all together, thereby not affecting the schools performance scores. (149)

b. Lack of Enforcement

In addition to NCLB's unintended side effects, the effects actually intended are not being aggressively pursued. Some provisions are not being enforced merely because their enforcement is impractical or impossible. For example, one of the sanctions for a school in need of improvement is that they must make tutoring available for eligible students; however, only fifteen percent of those students received tutoring. (150) The source of this low percentage is unclear, but one question that naturally arises is: How can someone in Washington, D.C. determine whether children in Honolulu and New Orleans are getting after-school tutoring? (151) The answer is simple: They cannot under the system that currently exists. It is not feasible for the U.S. Department of Education, as it currently exists, to ensure that a single school thousands of miles away is providing after-school tutoring to its students. Only with a complete restructuring of the Department of Education, involving local offices and extreme oversight, is this type of enforcement possible.

On the other hand, some provisions are not enforced because the legislated alternatives simply do not exist. For example, NCLB created an option for students who attend a failing school that would allow them to transfer into a "good school." (152) In 2004-2005, only about one percent of students who were eligible actually transferred. (153) This is due largely to the fact that there were no passing schools to which they could go. (154) In these situations, the federal government can pass as many laws providing as many options as it wants, but if the option does not exist, it is impossible to take advantage of it, and the law is rendered useless.


One of the fundamental problems with NCLB is its misunderstanding of the problems that education faces. (155) By imposing a punitive system to reform schools, the law assumes that local schools have the resources and knowledge to educate all students, but simply refuse to do it. (156) It is safe to assume, however, that most school districts would make yearly growth goals if it were as easy as somebody telling them to do so. The first step, then, in reversing the effects of NCLB is recognizing that the problem goes much deeper than that, and that more fundamental change to the entire system must be made. (157)

President Obama seemed, at first, to understand exactly that. Using the RTF and NCLB waivers, President Obama announced plans to reverse the "race to the bottom" effect created by NCLB. (158) Furthermore, he planned to reauthorize the ESEA, thus ridding the world of NCLB in a more permanent way. (159) In furtherance of these goals, President Obama released unprecedented amounts of money to education and instituted numerous reform efforts, all in the name of increasing achievement and innovation while promoting greater flexibility to the states. (160) These programs, however, mainly recycle previously failed reforms and come with their own set of problems. Section III(A)(2)(a) will explore the problems presented by mandated flexibility, and Section III(A)(2)(b) will discuss inadequate funding.

a. Mandated Flexibility

Although Race to the Top is couched in rhetoric of flexibility and state innovation, it is truly just another set of mandates to follow to get federal funding. To get the large sums of money that the Obama administration is handing out, states must "win" the Race to the Top competition by scoring high marks on a rubric. (161) In order to earn high marks on the rubric, states must show evidence that they are enacting certain reforms in their schools. (162) Furthermore, some policies promoted under the RTF are nearly identical to NCLB policies that created the perverse incentives discussed above. (163) For example, the four turnaround methods that are touted under the RTF are the same models that led to stagnated achievement under NCLB. (164) Race to the Top gives little more flexibility than NCLB. (165)

b. Inadequate Funding

Beyond recycling the same failed efforts of reforms past, the RTF also underfunds the reform effort by only providing funds to specific states and by demanding more results than the award can ever fund. (166) RTF is a competition, meaning that many states that apply will lose. The losing states will not receive any funding despite having spent "an 'enormous' amount of time and money" preparing their applications, and both changing their laws and putting reforms in motion in order to stay in the "race." (167) Even if states do win, the eye-popping amount of funds awarded to the Race to the Top winners have sharply declined, starting at $500 million and $100 million per winner in Round One and dipping to approximately $30 million per winner in later rounds. (168) While this sounds like a considerable sum, as many have recognized, the federal funding available is merely "a Band-aid for the huge cuts in State funding to our schools in recent years." (169) Moreover, it costs States so much money simply to apply to RTF, and then so much money to implement the reforms and comply with federal red tape, that the benefit of winning does not outweigh the costs. (170) The RTF leaves most of the funding for the proposed reforms to the states, and leaves the federal contribution to education at about ten-and-one-half percent of all education expenditures. (171) The RTF, although it sounds like a promising new reform, truly falls in line with the other fads and reinforces the "myth that persistently lowest-achieving schools can be 'fixed' on the cheap." (172)


Recently, key players in federal government have expressed concern that they are ill equipped to deal with education reform. When announcing the first group of states to be granted NCLB waivers, President Obama stated that, "if we're serious about seeing our children reach their full potential, the best ideas aren't just going to come from here in Washington." (173) Furthermore, while describing their Flexible Funding Act, the Education and Workforce Committee stated that the goal of the legislation was to ensure that "[i]nstead of Washington bureaucrats making the decisions for superintendents, school leaders, and teachers, local officials will be able to make funding decisions based on what they know will help improve student learning." (174) The following subsections analyze the two newest federal actions in education, and their estimated impact on the current state of education. Section III(A)(3)(a) will analyze NCLB flexibility and how it adds yet another layer of reform, and Section III(A)(3)(b) will discuss Congress's proposed education bill package.

a. NCLB Flexibility: Another Layer of Reform

As frustrations with the strict mandates of NCLB grow, promises of flexibility have become more and more appealing. (175) In the seven-week span between President Obama's announcement about the waivers and the first deadline, eleven states applied for waivers. (176) Currently, the U.S. Department of Education has granted waivers for thirty-nine states and the District of Columbia, and an additional eight states, Puerto Rico, and the Bureau of Indian Education have applications that are still under review. (177) Thus, with only five states declining the invitation to apply for a waiver, it is clear that states are ready to be free from federal mandates. It is unclear, however, whether these waivers truly grant the freedom that they promise, or whether President Obama overstates the concession that he is making.

While it is true that flexibility is being granted, it is granted based on compliance with a new set of federal mandates. (178) These federal mandates, although they encourage a variety of approaches among states, still suffer from the same problems as many other reforms because they are un-researched and reactionary. (179) For example, states were granted waivers for the following reasons:
 Massachusetts ... set a goal to slash its number of underperforming
 students by half within six years; Colorado is setting up a
 comprehensive online database of assessment measures, among other
 steps; and New Jersey is developing an "early warning" system in an
 effort to prevent students from dropping out of school. (180)

Assuming that the states were not already devising plans to implement these strategies, the plans submitted in the first round of waiver applications were developed between the time that President Obama announced the availability of waivers and the time that the state's applications were due, not even a two-month period. (181) Two months is not enough time to develop meaningful plans for reform, and so these types of rushed plans result in the same type of fad reform that persisted in the past several decades. (182) Furthermore, "[i]ssuing new demands in exchange for relief could result in greater regulations and confusion for schools and less transparency for parents." (183) Thus, the stack of regulations just continues to grow.
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Title Annotation:I. Introduction through III. Analysis and Critique: The Failed and Inadequate Federal Model for Educational Reform A. The Failure of Federal Reforms 3. "WAIVING" the White Flag a. NCLB Flexibility: Another Layer of Reform, p. 399-430
Author:Chopin, Lindsey H.
Publication:Loyola Law Review
Date:Jun 22, 2013
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