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FEDERALIZING EDUCATION BY WAIVER ? by Derek W. Black

The "Conclusion" of a  51 page paper -- "Arne Duncan's NCLB Waiver ILLEGAL" by Derek W. Black, which is attached at the bottom of the article:

     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 implilcitly 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.

     An explict grant of conditional waiver power could have cured some of these problems, but not all. To have justified conditions as broad as Secretary Duncan's, the statute would have had to either explicitly authorized the types of conditions Secretary Duncan imposed or explicitly grant him an open-ended authority to condition waivers. The former is implausible because Congress does not possess perfect foresight. The latter is unconstitutional because it would not have been constrained by an intelligible principle. It also would have granted the Secretary a power broader than any other previously approved by the Court.

     The import of this analysis reaches far beyond education. An agency power to remake the law through statutory waivers may be a useful and efficient mechanism for adapting laws to changing circumstances and needs. Congress can, and likely will, explicitly extend this authority to some agencies in the future. But as the experience of NCLB's conditional waivers demonstrates, conditional waiver power, if not carefully circumscribed, is fraught with practical and constitutional dangers. It has the potential to give agencies a power that exceeds that of legislation under which the agency is acting. The executive can unilaterally achieve ends that neither it, nor Congress could have achieved through negotiated legislation, including bringing states futher under the regulation of agencies than the organic statute the agency is waiving. In these respeccts, conditional wiaver authority can threaten the balance of powers Constitution secrues between states and the federal government, and between Congress and the executive. Thus, it is no surprise that the NCLB waiver process helped spark a series of bitter legal fights at all branches of local, state, and federal government, with Congress suing state legislature and vice versa over the Common Core Curriculum, and teachers and students suing states over changes to teacher evaluation and retention rights. Next in line is a direct challenge to the Secretary of Education's authoirty to impose and enforce the conditions it exacted in exchange for an NCLB waiver. This Article provides important guideposts for resolving that dispute.

 

 



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