A Looming Showdown over No Child Left Behind

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Jim Mone / AP

U.S. Education Secretary Arne Duncan visits with students during a visit to Dayton's Bluff Achievement Plus Elementary School Tuesday, May 31, 2011 in Minneapolis, Minnesota.

Is it finally the beginning of the end for No Child Left Behind?

Secretary of Education Arne Duncan announced late last week that if Congress does not overhaul the ten-year old federal education law known as No Child Left Behind in the next few months, he will do it himself. His plan? To give states waivers from some of the law's provisions in exchange for a commitment to undertake a currently unspecified set of reforms. Immediately dubbed "Plan B" by the Secretary and others, the announcement was not a surprise. Using regulations to amend the law, which is years overdue to be revised, has been under consideration for months. Still, the reaction to Duncan's announcement highlighted why Congress is having such a hard time fixing the law in the first place.

Let's take the objections in order:

Not surprisingly, leaders in Congress were not pleased. Even though Duncan has the legal authority to waive a variety of provisions in the law — essentially those not dealing with money or civil rights — Congress understandably sees making laws as their turf. The secretary is betting that the threat of being preempted will be enough to prod action on Capitol Hill.Perhaps he's right. The Republican Chairman of the House education committee and his Democratic counterpart in the Senate both agreed that Duncan's proposal was a bad idea.That was the first glimmer of education bipartisanship in a long while.

The chattering class was even sourer. American Enterprise Institute scholar and pundit Rick Hess accused Duncan of trammeling on the Constitution. Education reform critic Diane Ravitch rushed to agree, and those two agree on little these days, so again, Duncan succeeded in bridging differences.But while Hess and Ravitch called on Duncan to read the Constitution, they might want to read the No Child Law itself. The waiver authority is long standing and clearly spelled out. Secretary of Education Margaret SpellingsDuncan's predecessor in the Bush Administration used it several times to launch pilot projects for various reform ideas. And waivers and regulations are a common tool for policymaking on a range of issues besides education.

Education's alphabet soup of special interest groups were not any happier. They've been demanding waivers for years but this wasn't quite what they had in mind — they object to Duncan's idea to attach reform conditions to any regulatory relief. School reform groups, conversely, worried that any conditions would be toothless and weaken the law's emphasis on accountability for struggling students. Privately, reformers worried that by this fall the figures driving decision-making at the White House were as likely to be the President's reelection numbers as school performance data.

It's not an unwarranted concern. History doesn't bode well for proponents of accountability and waivers have rarely led to reforms. Most recently, during the Bush Administration, there were several attempts to use waivers to change the No Child policy. As a rule when education special interest groups, especially the teachers unions, favored suggested changes — for instance revisions to the No Child law's school accountability rules to make it easier for schools to meet performance targets — they sailed through. But when proposed fixes were not so popular — for example when Secretary Rod Paige tried to change how the law affects local collective bargaining agreements — they were stopped dead in their tracks. In other words, if Duncan's reform conditions are too stringent the administration could find itself under intense political pressure, challenged in court, or both.

It's worth remembering that this latest No Child Left Behind contretemps is only unfolding because Congress has been unable to revise the law since it was first scheduled to do so in 2007. In addition to the general dysfunction plaguing Washington, these days the lack of progress owes to disagreements between key special interest and reform groups, the House and the Senate, and Democrats and Republicans. One senator told me that, given a free hand to rewrite the federal education law, their version would represent the biggest rollback of the federal role in a generation — but even their streamlined version wouldn't satisfy conservatives in both chambers.

So as students stream out of school for the summer it's a safe bet that the law will be exactly the same when they return this fall. In fact, most Washington insiders think Congress won't be able to finish work on the law until after the next election. Waivers would make that pretty much a certainty. If the almost universal unpopularity of Duncan's proposal ends up bringing people together and energizing the legislative process, then it's a clever act of leadership. Otherwise, the Administration is undertaking a risky political high-wire act through the waiver process. In fact, all things considered, it's not too soon to start asking what Plan C is?

Andrew J. Rotherham, who writes the blog Eduwonk, is a co-founder and partner at Bellwether Education, a nonprofit working to improve educational outcomes for low-income students. School of Thought, his education column for TIME.com, appears every Thursday.