New Harvard Civil Rights Project Report ... and Responses

Gail L. Sunderman, a researcher at the Harvard Civil
Rights Project, has released a
new report from her continuing study of how NCLB is influencing change.
This study particularly looks at how federal and state negotiations are
changing the law. There are a couple interesting things about this study.



First, the issue that is getting the most play around the eduniverse is how the
negotiated NCLB is benefiting white middle-class students over minority and
poorer students. (See the CNN article here.)



While who is benefited most by the law is an interesting issue, the Edjurist is
most interested in the issue of negotiated policy between the federal
government and the states. This negotiation is happening more and more between
the states and the federal government, in some cases, to the extent that the
final result is often totally different from what the federal law and
regulations demand.



As the report suggests, NCLB is a monumental failure as a law. First, most laws
are passed, or at least should be passed, with major input from all players.
While NCLB was passed with bipartisan majorities, much of education itself was
not at the table. Thus, many of the current problems with implementation were
not predicted and accounted for initially at passage. This is not where the
law's failures end, however. Even when implementation problems crop up, they
can be accounted for by an active Congress or Department. Amendments can be
passed and regulations rewritten.  This has not occurred with NCLB, and
what has resulted is national unrest and negotiated settlements to keep states
from throwing away the federal dollars altogether. 



This is an untenable situation. While the state response should not be
criticized too harshly because of their primary role as providers of education
in this country, the federal role should be examined. If federal statutes are
going to be written as broad, unachievable mandates then absolutely this
negotiated, untenable situation will continue. Why can't the federal government
still control broad general goals by controlling the purse strings? Is the
mandate necessary at all? Just direct the massive federal allotment toward
research and programs that support the general goals. Granted, there will still
be unrest, but this perverse situation where the law is negotiated between the
state and federal government would be eliminated.



Here is an excerpt that is on point:

What is a law? A political scientist or lawyer could
spend a semester discussing


that question but a rough definition might be
something like this: a rule of general


application established by and enforced by
governmental power. A lawful policy is one


that operates within the principles established by the
law. Is NCLB being administered in


a lawful manner? One vital part of enforcing a law is
that it is intelligible and


predictable. In other words, those subject to
enforcement that is backed by public


sanctions need to know what the law requires, that the
requirements are consistent with


the law itself, that they have reliable information
about what they must or must not do,


and what the consequences may be.





By this standard, some of the most important policies currently being enforced


under NCLB are not lawful. They are not rules of
general application and they are not


consistent from state to state. Sometimes even
individual districts have been allowed to


ignore the policy requirements. Exceptions available
in some places are not publicized or


made available in others. There is no certainty in the
law and no way to know what it


will be in the future. This means that the policy is
essentially a product of negotiation, of


power and discretion, not law.





Since NCLB concentrates serious power and sanctions around demands that


turned out to be unattainable and, sometimes,
irrational, school officials and the public


face the contradiction between explicit and very harsh
policies and a patchwork of


policies that have been compromised in an inconsistent
and unpredictable pattern. These


compromises constitute the real policy, and, since
they are applied differently to different


regions of the country, there is no single, national
policy.

Comments

[Steve John]

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