In his paper Federalizing Education by Waiver?, University of South Carolina law professor Derek W. Black proves that the Waivers offered to states from the requirements of NCLB and its parent ESEA are unlawful.
I have always maintained that this was the case without the clout to prove it, but someone now has, and that someone has clout.
The report opens with:
Two of the most significant events in the history of public education occurred over the last year. First, after two centuries of local control and variation, states adopted a national curriculum. Second, states changed the way they would evaluate and retain teachers, significantly altering teachers’ most revered right, tenure. Not all states adopted these changes of their own free will. The changes were the result of the United States Secretary of Education exercising unprecedented agency power in the midst of an educational crisis: the impending failure of almost all of the nation’s schools under the No Child Left Behind Act (NCLB). The Secretary invoked the power to impose new conditions on states in exchange for waiving their obligations under NCLB…. As a practical matter, he federalized education in just a few short months.
This unilateral action is remarkable not only for education, but from a constitutional balance-of-power perspective. … Yet, as efficacious as unilateral action through statutory waiver might be, it is unconstitutional absent carefully crafted legislative authority. Secretary Duncan lacked that authority. Thus, the federalization of education through conditional waivers was momentous, but unconstitutional.
Black lays out the problems with the waivers in four main areas of his report that have been translated from legalese to lay speak by Peter Greene of The Huffington Post.
PART I: No Changing the Rules
When the feds pass a law, they have to lay out all the rules that do and will apply to that law. You can’t pass a law, start folks working under it, and then years later announce, “Oh, yeah, and by the way, we’ve changed this law about making cheese sandwiches so that it also covers sloppy joes, and also, if you don’t go along with us on this, we get to take your car.” Also, you can’t suddenly say, “We’ve given my brother-in-law the power to judge your sloppy joes.”
PART II: Using NCLB Waiver To Impose New Policy
The President said quite plainly that his blueprint for Reauthorizing the Elementary and Secondary Education Act was meant to erase, replace, and supersede No Child Left Behind. So when the same requirements appear in the waivers, that makes it hard to argue that the waivers are meant to conform with and help preserve NCLB. Put another way, a waiver cannot legitimately be based on replacing the waived law with some other law entirely. It’s like those movies where federal agents offer a criminal release from jail only if he’ll steal something for them– it may be cool drama, but it is in fact coercive and ultimately illegal.
PART III: The Constitutional Flaws of NCLB Waivers
The Constitution does not give agencies (executive branch) the power to rewrite laws (legislative branch). They have some limited legal power to do waivery things, but only to the extent that the waivery things are described in the original law. NCLB does not contain any waiver descriptions that match what Arne Duncan has been doing. Duncan has no authority to offer these waivers under the conditions he’s set.
PART IV: That Would Be Extraordinarily Bad
If the NCLB waivers are ruled as Constitutional, then we’ve just extended to an agency of the executive branch the authority to create new laws. This would be bad. Really, unprecedentedly bad.
Yes, regulatory agencies like the EPA often have to make judgments that seem tantamount to creating policy and law, but they still have to make those judgments based on facts and in ways that fit the original regulations. Agencies like the FCC have very broad legislative mandates, but other language and explication actually narrowed their scope considerably. What the ed waivers have done is create a whole new version of ESEA without the country’s actual lawmakers ever touching a bit of it.
So now the Waiver Nay Sayers such as ourselves have back up to our opinions that something was really rotten in Denmark. But what will happen with this new found proof? In my opinion absolutely nothing and it will be a change of government that will be the most interesting thing to watch in the future.
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