Liberal Apostasy: Is It Time To Downgrade the Federal Department of Education?

Washington has seen recent jockeying for positions on the debate to repeal or revise the No Child Left Behind (NCLB) as Republican Senator and former Secretary of Education Lamar Alexander takes over the Senate Committee on Health, Education, Labor & Pensions.  Senator Alexander has signaled that he intends to engage in significant overhauls of the 2001 law which updated the Elementary and Secondary Education Act of 1965 and which has been due for re-authorization since 2007.  He will likely find atypical allies from traditionally Democratic leaning teacher unions who will join more conservative advocates in calling for a decrease in standardized testing and walking back Obama Administration initiatives that have pushed states to evaluate individual teachers and make tenure and dismissal processes tied to such scores.

Current Secretary of Education Arne Duncan laid out some of his priorities for an overhaul of the legislation in a speech on January 12th, and he was joined by a group statement from a number of venerable civil rights organizations that, among their other priorities for federal education law, called on lawmakers to preserve the annual standardized testing requirements from NCLB.  Given the historic problems in many state with both resistance to integration and with neglecting urban and rural student populations which led to more vigorous federal education laws in the first place, it is not surprising that such organizations would want a new education law to retain tight oversight provisions for the states.  Secretary Duncan, in his planned remarks, emphasized accountability:

I believe parents, and teachers, and students have both the right and the absolute need to know how much progress all students are making each year towards college- and career-readiness. The reality of unexpected, crushing disappointments, about the actual lack of college preparedness cannot continue to happen to hard-working 16- and 17-year olds – it is not fair to them, and it is simply too late. Those days must be over.

That means that all students need to take annual, statewide assessments that are aligned to their teacher’s classroom instruction in reading and math in grades 3 through 8, and once in high school.

As he continued, he framed the need for accountability in civil rights language:

Will we work together to ensure that every public school makes a real priority of the educational progress of minority students, those living in poverty – be there rural, urban, or someplace else — those with disabilities, those learning English, or other groups that have struggled in school in the past? Should unacceptable achievement gaps require action? Or is that simply optional?

Secretary Duncan’s questions were poignant, and the moral authority of the NAACP and the ACLU should have reminded listeners that we have historically done a poor job improving educational opportunity for students minority students and students in poverty.  However, the insistence that annual, standardized test-based accountability is the only solution to making certain that we are accountable to all of our students is deeply flawed.  It is flawed because the testing regimen that Secretary Duncan supports has already narrowed the curriculum received by huge swaths of our student population, even though Secretary Duncan declared that non-tested subjects like science and the arts “are essentials, not luxuries.”  It is flawed because even though Secretary Duncan stated that teachers and principals deserve support, the national reality is that most states are still spending less on education today than they did before the Great Recession even as the federal government has pushed those states to demand much more from those same teachers and principals.  It is flawed because while Secretary Duncan said he believes “teachers deserve fair, genuinely helpful systems for evaluation and professional growth that identify excellence and take into account student learning growth,” his favored metric is the value-added model (VAM) of teacher performance, and the research simply does not support using VAMs as either “fair” or “genuinely helpful” and they certainly cannot “identify excellence” with reliability.

Secretary Duncan once famously said that “We should be able to look every second grader in the eye and say, ‘You’re on track, you’re going to be able to go to a good college, or you’re not,’” so his faith in power of standardized testing data is long lasting and probably sincere, but it has led his department, under the guise of relieving states from the most punishing aspects of NCLB, to push states in educational directions that are legitimately damaging to the public’s trust in education and which incentivize schools and teachers to further narrow their curriculum in search of higher test performance.

Which leads me to a question: Is it time to downgrade the federal department of education?

This is not an idle question because while I believe that the federal legislation from the 1960s and 1970s was a necessary beginning to address systemic inequalities in educational opportunity for the poor, for minorities, for women, and for people with disabilities, the Cabinet level role of the Department of Education has become highly problematic in today’s hyper-focus on standardized testing.  The federal DOE was actually created by Congress in 1979 in order to strengthen the federal commitment to public education and to increase coordination and accountability for the various federal laws that have direct impact on schools.  The department was immediately under fire from conservative activists interested in a smaller federal government, and President Reagan, riding the conservative wave that put him in office, pledged to abolish the fledgling department.  This did not happen, and by the 1990s, the department was secure under the successive Presidencies of George H.W. Bush and Bill Clinton.  With the bipartisan passage of No Child Left Behind, the department was firmly entrenched in pushing states to hold schools accountable to student achievement on standardized test scores, and while the Obama administration Race to the Top grants allowed states to apply for waivers on NCLB requirements that all children read and do math “at grade level,” states had to agree to adopt common standards, expand charter schools, and use standardized test scores to evaluate teachers.  Secretary Duncan made it clear that he would hold states receiving waivers to those agreements when in April of last year, he stripped Washington state’s NCLB waivers for not meeting the federal department’s “requirements for reform.” 

The federal government provides roughly 12% of the annual national spending of $550 billion on elementary and secondary education.  While this does not represent a sum that comes close to helping states meet federal requirements, it has proven enough for the federal government to use the Department of Education to push policies like test-based accountability and rapid expansion of charter schools upon states and locales that might seek other ways to improve their schools given more flexibility.  Title 1 funds, for example, reach 56,000 schools serving 21 million children, but since NCLB those funds have been tied towards demonstration of student annual progress via standardized testing and during the Obama administration states were required to use standardized tests to evaluate teachers if the received waivers from other NCLB provisions.  The federal government can use its funding to enforce specific policy priorities on the states, but it rarely funds those priorities enough to help school districts implement them effectively.  For example, for 40 years the federal government has failed to fully fund the Individuals with Disabilities in Education Act (IDEA), covering roughly 17% of the cost of the legislation even though it has long promised states to cover a full 40%.

Questioning the Cabinet level role of the DOE does not mean abandoning the landmark legislation in education that proceeded the department’s formation, and it is important to recognize the significant and needed impact of that legislation.  Congress passed the Education for All Handicapped Children in 1975.  In the 1969-1970 school year, a total of 2,677,000 children representing 5.9% of all children in public school received special education services, but none of them were identified with specific learning disabilities.  In the 1979-1980 school year, 4,005,000 children representing 8.9% of all students received special education services, including almost 1.3 million with specific learning disabilities that were being accommodated.  Title IX was passed in 1972 when 386,683 women received bachelors degrees, representing 46% of degrees conferred.  By 1979-1980 school year, that percentage had risen to 49%.  In 1960, five years before the Elementary and Secondary Education Act was passed, the median years of school attended by an African American male was 7.9, and by 1980, that had increased to 11.9 years — more important, the gap in the median number of years in school between white and black males closed from 20 percentage points.

All of these gains occurred in the wake of landmark federal legislation, but before the Department of Education was created in its current form.

What makes the current federal DOE so problematic in 2015 is not the role that it was created to play, but the fact that most initiatives out of it since Congress passed No Child Left Behind resemble a classic case of regulatory capture by the for profit charter school sector, the testing industry, and the data mining industries.  Unlike other cases of regulatory capture, there appears to be no prospect for partisan realignment as administrations change and monied interests involved in the Executive branch shift — successive two-term Republican and Democratic administrations have charged down the current path, prioritizing testing with increasingly higher stakes.

While eliminating the Cabinet level DOE would impede some of these forces, I am also mindful of important considerations.  First, the civil rights organizations that have signed on supporting Secretary Duncan’s priorities are not wrong in their concern that states have historically neglected and have even actively discriminated against certain populations, and that states and localities must be held accountable for providing equal access and equal opportunities for all of their students. While I disagree that yearly high stakes examinations are the way to ensure that, nobody can reasonably look at our history and dismiss the issue.  Second, demoting the federal DOE might complicate the plans of the interests who have worked to monetize public education, but it is not as if they are absent from state level government. When it comes to adding requirements to teachers while cutting funding and when it comes to turning public schools over to charter corporations, there is little daylight between Democratic star politicians like New York Governor Andrew Cuomo, Chicago Mayor Rahm Emmanuel, and former Newark Mayor and now United States Senator Cory Booker and Republican counterparts such as Scott Walker of Wisconsin and Chris Christie of New Jersey.

Finally, as Arthur Camins notes here, our problem of the past 15 years can be described as the federal DOE “reaching for the wrong things:”

The problem over the last several decades of education policy is not overreach. It is that the federal government has been reaching for the wrong things in the wrong places with the wrong policy levers. For example, the nation has largely abandoned efforts to end segregation, arguably a prime driver of education inequity. The large-scale, community-building infrastructure and WPA and CCC employment efforts of the Great Depression have given way to the limited escape from poverty marketing pitch of education policy following the Great Recession. Whereas the 1960s War on Poverty targeted community resource issues, current education efforts target the behavior of individual teachers and pits parents against one in other in competition for admission to selected schools.

Professor Camins’ points are well-taken, but advocates for returning public education to the public’s care need ideas for addressing how education policy has been captured in both Washington D.C. and in state capitols. Consider the case of Andrew Cuomo who raised over $40 million between his inauguration in 2010 and reelection in 2014 — more than half of which came from just 341 donors, donors who expect influence upon the governor commensurate with their investment.  In essence, this is a question of rooting up corruption and the circumvention of democratic processes, but as Fordham Law Professor Zephyr Teacher demonstrates, there are no easy answers.

But we must seek answers, even difficult ones.  What has happened at the federal DOE is dangerous for quality and equitable public education, but it is also a symptom of a problem endemic in our politics.  Mere handfuls of extremely wealthy people can override the wishes of millions of voters and circumvent public debate on crucial issues.

We cannot afford it any longer.