GOP: Obama Circumventing Congress on No Child Left Behind

States can seek relief from the law's provisions if they accept reforms.

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With reforms to the nation's central education policy, No Child Left Behind, languishing in Congress, Education Secretary Arne Duncan signaled the Obama administration is proceeding with reforms on its own, drawing congressional Republicans to cry foul. They say Duncan's plan, which will grant waivers to states that agree to specific reforms, circumvents Congress.

Duncan hinted at the waivers earlier in the summer but announced this week he would move forward with providing states relief from the education policy's key provisions—the core of which is that all students test at grade level in math and reading by 2014—while still maintaining a "high bar" for accountability. Specific details of the waiver requirements and process will not be released until September, Duncan said.

Republicans see this as an end-run around Congress, especially if the waivers require reforms that have not been legislated by Congress, which they are expected to do. "The idea that waivers are being used to circumvent Congress doesn't sit well, especially when the waivers are likely to create an even heavier top-down approach than what's already in place," said California Rep. Duncan Hunter, chairman of the House Early Childhood, Elementary, and Secondary Education Subcommittee.

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While both side of the aisle agree No Child Left Behind, or NCLB, needs massive changes, the recent budget and debt ceiling fights have dominated Washington and heightened partisanship, leaving Congress unable to agree on such reforms by the beginning of the fast-approaching school year, which was the deadline set by President Obama and Duncan.

The Obama administration introduced its comprehensive blueprint for education reform in March of 2010, but Minnesota Rep. John Kline, chairman of the House Education and Workforce Committee, is working to reform NCLB through a series of smaller bills. His committee has already passed three, though the committee's ranking Democrat, Rep. George Miller of California, says only one of those was bipartisan.

Miller initially was not a fan of the waiver idea when Duncan floated it earlier this summer, but after Duncan's announcement this week, Miller said he understands the rationale. "The timing, coupled with recent disappointing policy actions by Republicans, make it very difficult to see how we can get a bipartisan [education bill] this Congress," he said in a statement. "We can't expect schools to continue to function under 10 year old policies—it's not good for our students or our economy."

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Hope for broad, bipartisan education reform anytime soon is dwindling, but Kline is wary that short-term solutions like waivers could undermine Congress's efforts altogether. "We plan to complete our reauthorization package this fall," he said before Duncan's waivers announcement. "I will be monitoring the secretary's actions closely to ensure they are consistent with the law and Congressional intent."

While the law permits the secretary of education to waive various requirements of NCLB, and there is a precedent for doing so, a June report by the Congressional Research Service indicates there is no precedent for a secretary to require reforms in exchange for a waiver. In that case, the report says, "the likelihood for a legal challenge might increase, particularly if [the Department of Education] failed to sufficiently justify its rationale for imposing such conditions." The report adds that this would, of course, depend on the specifics of the situation.

Part of the Republicans' frustration also comes from the fact that the details of waivers are still under wraps, though Kline asked for them more than a month ago, another indication of tension between the executive branch and the Republican-controlled House. On June 23, Kline sent a letter to Duncan asking for specifics of his waiver proposal by July 1. Duncan responded on July 6 explaining his rationale for considering waivers, citing requests for flexibility from states and communities as well as congressional inaction, but excluding any specific details. "Unfortunately, more questions than answers surround the secretary's waivers proposal," Kline said in a statement. "The secretary has a responsibility to explain the steps states and schools will be required to take in exchange for the promised relief."