An upcoming article in the Vanderbilt Law Review argues that the administration's waiver program is both illegal and a very, very bad precedent. University of South Carolina law professor Derek W. Black has written articles about the intersection of federal power and school law before, but none quite as feisty as "Federalizing Education By Waiver." And folks have questioned the legality of Duncan's waivers all along, but this takes that game to a whole new level.
Black opens with one of the most concise summaries of the current reformster wave you'll ever see
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 allows the kibbitzing to start immediately in response. Black does not distinguish at all between Common Core Standards and a national curriculum, a distinction without a difference that reformsters have fought hard to maintain. Nor will reformsters care for the assertion that states did not all adopt reform measures of their own free will. But all of that background in the first paragraph of the article is simply setting the stage for Black's main point.
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. [emphasis mine]
I should note that all of his material comes heavily laden with footnotes.
There follows a more detailed recap of the Tale of NCLB and Creeping Federalism.
Once upon a time, Congress created NCLB which kept the line on states' rights by making the states accountable for educational results. Scholars called it "cooperative federalism" and it was a new role for the feds, but a limited one. But NCLB was flawed, and as early as 2008, Congress and the President were looking to stop the train. The President proposed a fix in 2010, but Congress was not having it. However, NCLB came with its own magic beans-- the Sec of Ed had the power to waive noncompliance consequences for the states.
The Sec of Ed broke out the magic beans, but he said they will come at a price-- a price, it turns out, remarkably identical to the 2010 proposal ideas. And here's the thing about that 2010 blueprint-- it was proposed as a way to take education in a completely different direction, away from NCLB.
That means that the waiver requirements were decidedly NOT an outgrowth of the underlying legislation, and were in fact meant to bury it, not to save it. That means that waivers took us into a magical new land of Not Actually Legal.
Specifically, it assaults the magical fairies of the Spending Clause in these two ways. 1) You can't use federal money to change the rules that the money is attached to and 2) Congress can't use federally funded programs to coerce states into adopting federal policies. And so it's time to break out the magic wands and zap some naughty federal fairies.
There's not a lot of scholarship about this web of fine legal detail, and so Black sets out to fill in the gap with four very erudite and legally sections of the article. I am going to summarize them in very non-legally ways, and any damage I do to Black's arguments is on me, not him.
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."
Conditions for receiving federal fund must be "unambiguous" and non-coercive. Also, you can't suddenly delegate Congressional authority to an agency of the Executive branch.
There's not a lot of constitutional case law related to waivers, but Black is pretty sure that insufficient notice of waiver conditions as well as "leverage and surprise at the point of waiver" (wasn't that an Alan Parson's Project album?) are problematic. Even more problematic is the issue of an agency of the federal government using waiver conditions to rewrite laws passed by Congress. And then he takes a few pages to explain how these issues should be navigated.
PART II: Using NCLB Waiver To Impose New Policy
If you're going to understand why this was bad, it helps to understand how it happened. The smoking gun for Black is the President's Blueprint for Reauthorizing the Elementary and Secondary Education Act. He is painstakingly specific in this (reading this 51 page article has helped me remember why I'm not a lawyer), but the upshot seems to be this:
The President said quite plainly that his blueprint 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.
With no more power than the authority to waive noncompliance with NCLB, Secretary Arne Duncan achieved a goal that educational equality advocates had long sought, but never secured: the federalization of public education. His path to the “holy grail” of education, however, was fundamentally flawed. He only reached it by imposing waiver conditions that were neither explicitly nor implicitly authorized by the text of NCLB. Thus, he exceeded his statutory authority and violated the Constitution’s clear notice requirements regarding conditions on federal funds.
States only acceded to these new and unforeseeable terms because their impending non-compliance with NCLB put so much at stake financially, practically, and politically. By the time Secretary Duncan announced the conditions, states were out of options and left in a position where the Secretary could compel them to accept terms that, under most any other circumstances, they would reject. The administration took the states’ vulnerability as an opportunity to unilaterally impose policy that had already failed in Congress. In doing so, the administration unconstitutionally coerced states.
This is fifty-one pages of detailed argument with a mountain of footnotes and a heck of a lot of Constitutional lawyerese. But it is a thorough argument about how the current reformy wave of waiverism is not merely bad policy, but illegal. It is going to be really interesting to see what fuss is kicked up once this article hits the fan. Plenty of folks have been calling the waivers illegal since waivering first began, but now they've got a heavy-duty law professor in a professional journal to back them up. Who would like to start the countdown to lawsuit?
(h/t to Love Light for passing this article along to me)