Whether the Obama administration reached too far in implementing No Child Left Behind (NCLB) and the degree to which that reach is a good or a bad thing are largely matters of policy preference. In recent months, the discussion has been framed almost entirely in terms of former Secretary of Education Arne Duncan’s overreach (more on this below). The Every Student Succeeds Act (ESSA), enacted in December, is being hailed as a repudiation of the secretary’s abuse of authority. By framing the discussion almost entirely in terms of overreach, Congress found a scapegoat for NCLB’s failure and a narrative that could be sold on both sides of the aisle. But the hypothesis that federal intrusion or executive aggrandizement is to blame for NCLB’s failure is cut from whole cloth. Whether or not the secretary reached too far in implementing NCLB is almost irrelevant for the purposes of gauging NCLB’s success. A more appropriate question is whether he was reaching for the right things.
ESSA treats the world as though it began in 2002, and it mostly addresses issues that have arisen in the wake of NCLB’s enactment. Imagine a patient who develops an infection after an unsuccessful knee surgery— curing the infection will not make her walk. In the same way, even if we accept the overreach narrative, restricting the secretary’s authority only puts us right back to where we were in December 2001, before NCLB was enacted. It does little or nothing to mitigate the structural inequities in K-12 education or to close demographic achievement gaps, both of which were stated goals of NCLB.
The overreach narrative consists mainly of two agency actions: 1) the Race to the Top grant program announced in 2009, and 2) the No Child Left Behind flexibility waiver program introduced in 2012. Race to the Top offered money to states, and the flexibility waivers offered a get-out-of-jail-free card just in time to avoid harsh penalties under NCLB. Both offers were conditioned on implementation of some or all of the secretary’s preferred policies, including college- and career-ready standards, test-based evaluations for teachers and principals, encouragement of charter school development, turning around lowest-performing schools, and the development of rigorous data collection systems., Race to the Top incentivized with a carrot, NCLB flexibility waivers used a stick.
But of course, the distinction between motivation and coercion is sometimes blurry. Neither program mandated participation, strictly speaking, but to forgo a Race to the Top application would have constituted unilateral disarmament (all but four states applied for Race to the Top funding), and the inevitable, harsh penalties under NCLB imparted something of an offer-he-can’t-refuse flavor to the flexibility waiver offer. (A large number of schools would have been subject to corrective action by the state, although there is some dispute over how dramatic the impact would have been.),, The enacted text of NCLB became the secretary’s sword, and it gave the executive branch the opportunity to place conditions on its mercy. In all, 43 states plus D.C. and Puerto Rico were approved for a flexibility waiver. It is difficult to avoid the conclusion that Secretary Duncan’s waiver requirements constituted a de facto national K-12 education policy, informed not by enacted law but by the Obama administration’s preferences. This is the overreach cited by lawmakers who wished to diminish the secretary’s role in education policy.
ESSA can best be understood as a reduction of the secretary’s authority, but not much more. It gives the secretary dramatically less authority to alter or disapprove of state accountability plans, it explicitly prohibits him from requiring states to adopt common standards or to implement test-based teacher evaluations, and it forbids the use of “super-subgroups,” a reporting technique some states developed to mask demographic achievement gaps and thereby evade NCLB penalties. It requires states to intervene in schools who perform in the lowest five percent (according to the state’s own definition), but provides the secretary with little power to enforce that provision. It places accountability in the hands of the states. The logic underpinning this paradigm is frustratingly circular. If states are accountable only to themselves, “accountability” will have lost all meaning.
Title I of ESSA states its purpose as follows: “to provide all children significant opportunity to receive a fair, equitable, and high-quality education, and to close educational achievement gaps.” It is difficult to see how an evisceration of the secretary’s authority promotes fair and equitable education for children who are consistently underserved. History does not suggest that civil rights protection should be left to the states.
The disease in K-12 education is not federal overreach; it is structural inequity of opportunity which existed long before No Child Left Behind. Many on the right bemoan the increased federal involvement in education, but there is simply no “good-old-days” argument to make as far as civil rights in education are concerned. There is no era to reflect on and conclude, “This is how education should work,” because the United States has never enjoyed an inclusive, equitable, effective educational system. If NCLB taught us nothing else, it was that K-12 education in the United States is structurally inequitable regardless of whether or not the Secretary of Education abuses his authority as it relates to a college- and career-ready standards or test-based accountability.  Congress, by passing ESSA, tries to hit the bullseye by adjusting the sight on the bow, not realizing that all along it has been shooting at the wrong target.
Legislation that truly sought to improve K-12 education would target factors that contribute to structural inequities. It would encourage or require integrated school-zoning policies and equitable tax-base plans for schools and districts. It would incentivize and encourage vigorous, theoretically sound bilingual education programs and remove NCLB’s requirement that content assessments occur in English. It would invest in the development of native language content assessments and encourage second-language acquisition for all students at a young age. It would aim to improve teacher-training programs and to make teachers’ compensation commensurate with the gravity of their task.
All in the hands of the secretary.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
Paul Hoversten is a General Member on MJEAL. He can be reached at firstname.lastname@example.org.
 Russel Berman, Congress Prepares to Launch a New Era in Education Policy, The Atlantic (Nov. 25, 2015), http://www.theatlantic.com/politics/archive/2015/11/congress-prepares-to-replace-no-child-left-behind-education-law/417621/ (in which Frederick Hess, the director of education policy studies at the American Enterprise Institute, stated, “Never in my life have I seen major legislation driven as much by a desire to repudiate a Cabinet secretary and his way of doing business.”).
 No Child Left Behind Act of 2001, 20 U.S.C.A. § 6301 (West) (“The purpose of this subchapter is to ensure that all children have a fair, equal, and significant opportunity to obtain a high-quality education and reach, at a minimum, proficiency on challenging State academic achievement standards and state academic assessments.”).
 Arthur H. Camins, U.S. education policy: Federal overreach or reaching for the wrong things?, The Washington Post (January 13, 2015), https://www.washingtonpost.com/news/answer-sheet/wp/2015/01/13/u-s-education-policy-federal-overreach-or-reaching-for-the/. Mr. Camins’ article, published eleven months prior to the enactment of the ESSA, was the germ of the idea for this blog entry.
 No Child Left Behind Act, supra note 2.
 Race to the Top Fund, 74 Fed. Reg. 59688 (Nov. 18, 2009). 34 C.F.R. Subtitle B, Chapter II (2009).
 U.S. Dep’t of Education, ESEA Flexibility: Frequently Asked Questions (2012).
 Race to the Top Fund, supra note 5.
 U.S. Dep’t of Education, supra note 6.
 Sam Dillon, Most Public Schools May Miss Targets, Education Secretary Says, The New York Times (March 9, 2011), http://www.nytimes.com/2011/03/10/education/10education.html?_r=0.
 Sam Dillon, Failure Rate of Schools Overstated, Study Says, The New York Times (December 15, 2011), http://www.nytimes.com/2011/12/15/education/education-secretary-overstated-failing-schools-under-no-child-left-behind-study-says.html?_r=0.
 Center on Education Policy, AYP Results for 2010-11 (2011).
 U.S. Dep’t of Education, ESEA Flexibility, U.S. Department of Education (last modified Dec. 18, 2015), http://www2.ed.gov/policy/elsec/guid/esea-flexibility/index.html.
 Every Student Succeeds Act, Pub. L. No. 114-95, 129 Stat. 1802 (2015).
 Id. at 1823-24, 1842. The enacted text eschews the term “college- and career-ready standards,” opting instead for “challenging academic content standards,” a not-so-subtle reminder to the Obama administration that Congress resented former Secretary Duncan’s push for adoption of the Common Core State Standards. Mr. Duncan, for his part, either ignored that criticism or failed to notice it; in an interview with Marketplace’s Kai Ryssdal, he stated, “That’s why getting enshrined into this law for the first time ever the necessity that states have high standards, college and career ready standards, is such an important step in the right direction.” Kai Ryssdal, Education Secretary Arne Duncan Gives an Exit Interview, Marketplace Education (December 10, 2015, 3:40 PM), http://www.marketplace.org/2015/12/10/education/education-secretary-arne-duncan-gives-exit-interview.
 Every Student Succeeds Act, supra note 13 at 1842.
 Id. at 1848-49.
 Id. at 1837, 1842.
 Id. at 1814.
 See, e.g., Brown v. Board of Education of Topeka, 347 U.S. 483 (1954); Browder v. Gayle, 142 F. Supp. 707 (1956); Loving v. Virginia, 388 U.S. 1 (1967); Plyler v. Doe, 457 U.S. 202 (1982); Lawrence v. Texas, 539 U.S. 558 (2003); Obergefell v. Hodges, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015), et al.
 Disaggregated achievement data are available on individual state government websites. See, e.g., Colorado Department of Education Unit of Federal Programs, ESEA Report Card 2012-13. There, 83% of third-grade white students scored “proficient” or “advanced” on the reading assessment, whereas only 57% of Hispanic/Latino students and 58% of African American students accomplished the same. These gaps are consistent across content areas, grade levels, and, to a greater or lesser degree, states.