"National" Standards and the Art of Cat Herding
Scott Bauries on Thursday, February 4, 2010 at 7:15PM “Standardizing” anything without a forceful mandate is like herding cats.
In the “national standards” movement, this appears to be what is being attempted. The entities developing the standards have been hard at work over the past year, and they have recently released drafts of the standards for Language Arts and Math. As I predicted months ago, the first questions out of the mouths of the state school board officers who have signed on with their intention, in principle, to adopt the standards is, “To what extent do we have to adopt them.” The answer? “Lock, stock, and barrel.” So far, so good. We can’t call them “standards” if they are not “standardized.” But I do not see them remaining that way once the cats get loose.
First, if you read the Education Week article linked above, you can get a sense that the state school board officers (at least out West) have already discerned that the wholesale adoption of standards promulgated outside the state is going to be . . . difficult to sell locally. We have a strong tradition of local control of education in this country (or at least we think we do), and external mandates are always viewed as inherently suspect.
The DOE's solution? Take away the mandate—make it “optional” to adopt the standards. In theory, we do this all the time in education. You see, Congress has no constitutional authority to directly legislate in the area of education—the word does not appear anywhere in the Constitution, and Congress may only legislate in areas where the Constitution specifically grants it authority to do so. However, the Constitution does grant Congress the power to tax and spend to ". . . provide for the General Welfare of the United States.” The Supreme Court has interpreted this provision to allow Congress to offer the states money, and attach conditions to such money—what we refer to as “conditional spending.” By using conditional spending, Congress can induce states to “contract” with it to adopt certain policies that Congress could not directly enact. Conditional spending, for example, is the constitutional foundation for NCLB and the larger ESEA that it amended, along with IDEA, FERPA, the Civil Rights Act of 1964, etc.
Most importantly, because conditional spending amounts to a “contract” between a state and the federal government, if a state fails to perform its end of the “bargain,” a remedy readily presents itself—the federal government may simply claw back the funds (like rescission of a normal private party contract). Because each state theoretically has a “choice” as to whether to accept the funds (and the conditions) in the first place, this arrangement does not offend federalism, so the theory goes. This all sounds logical in the abstract, but in the real world, it’s complete nonsense. If a typical state were really to reject federal funds in education, it would be reducing its education funding statewide by an average of seven percent—no state has done this in modern times. Thus, conditional spending legislation is a powerful tool—the functional equivalent of direct legislation—and it is quite useful where Congress would like to mandate and standardize a practice nationwide (like educating disabled kids, for instance).
However, we are emphatically not using this tried-and-true process for adoption of the “national” standards. States are essentially free to choose to adopt them or not, and they will lose no existing funding if they refuse (although they may lose a few points in the “race to the top” competition). If the state officers already have significant reservations after seeing only a draft, and if the official position on adoption is an inflexible “all or nothing,” though, then I predict that we will get either limited compliance or “lip service” compliance, and states will go back to their varied approaches pretty quickly. I fail to see what will be “standard” about that.
It is a familiar axiom that the only way to herd cats is to move their food. In conditional spending—money is food. We should probably move it if we really want “national standards.”
Reader Comments (5)
Great post and similar to a recent post at the Prichard Committee: http://bit.ly/8Y0KqX
Some obvious questions: #1 - Do we actually want national standards? If there is such public discontent in large parts of our country, that's a pretty good hint we don't actually want them. Obviously we in Kentucky seem to want them, and that's fine, but I would have a hard time believing Utah would be on board - or California for that matter (remember it's conditional agreement? http://bit.ly/XGSgF)
#2 - As Susan points out at the Prichard Committee blog, Race to the Top is not insignificant. States have certainly moved toward adoption only for their Race to the Top applications. Of course, those applications have already been submitted, but one of the real benefits of the "round 2" phase of Race to the Top is that it buys more coercive time.
#3 - Speaking of coercion, I do think there is more legal space here to overturn the use of the conditional spending power in this circumstance. It is what the federal government is requesting of states for that 7-9% and I think there are few things more important in education than the standards states adopt for their education system. You could make a decent case that the standards ARE education, and that everything else is just tangential. To have that kind of influence, seems like you need to be paying more than 7-9%. Of course, states are theoretically free to drop out, but like you said that's not really a functional choice. Until a state actually pulls out of Federal money altogether, I'll continue to believe that a state really doesn't have that choice (especially poor states like ours). I just think this is further and further down this conditional spending path and at some point (maybe not with this, but with something) the Courts are going to have to limit it substantially or we will fail to have a limited Constitution (which, of course, was pretty much the entire point of the document).
We have come a long way since the federal government first got centrally involved in education in the 70's. Within the span of 40 years we are now looking squarely at the federal government dictating (through money) what should be taught in nearly all of the nation's classrooms. I am not okay with that. The last place, THE LAST PLACE, I want to have influence over education in our country is the United States Congress. That place can be an absolute cesspool of politics and money-laden backroom campaign deals (as this healthcare national debate has shown so clearly). I know the Executive is pushing this at the moment, but they are merely blazing the trail into which the Congress will follow, and, until the Courts do something, irrevocably so. Really scares the hell out of me.
Thanks, Justin--I'll check out that Prichard Committee blog post, too. A few points:
1. I share most of your reservations. As you know from my prior posts on the topic, I am no fan of "national standards," as currently conceived. I am making these current arguments as a way of inviting proponents to defend this approach that seems destined to be neither "national" nor "standard" by all indications.
2. I am truly stunned by the heavy-handed responses given during the meeting described in the linked article. "Adopting" the standards can ONLY mean adopting them ALL, "word for word." My response, if I were, say, Utah, would be "or else what"?
3. Coercion has not been a fruitful path through which to challenge Spending Power legislation. The word appears first in a concurrence by Justice O'Connor, and it has never really been defined. The most useful doctrinal tool has been the "clear statement" rule. My colleague. Nicole Huberfeld, has done some really good work in the health law and policy area on such rules. That being said, ideologically, I would favor a much stronger doctrine of non-coercion.
4. Notwithstanding the foregoing, if the federal government were to really increase its funding role, then I would see no problem with centrralizing educational policy in principle. Most other countries do this, and they far outperform us on nearly all measures. In contrast, I have yet to see a convincing defense of "local control" based in theory or empirical evidence.
Scott,
This is a really nice post that really starts to get at the heart of the problems and opportunities inherent in the feds getting so involving with education reform.
For what it's worth, it seems that the Obama administration's attempts to put national standards back on the map with the stimulus and the Race to the Top Fund lack any sort of nuance. I'm a big fan of national standards, but the administration seems to have forgotten one of the core principles underlying standards in the first place - that they're supposed to serve as a content-based anchor for other education policies (e.g. those involving curriculum, PD, testing, etc) to make education policy more coherent in this unbelievably fragmented system. The administration's so focused on pumping up strategies that are almost completely disconnected from standards, like charter schools and turnarounds, and has made very little effort to ensure that these strategies are designed and implemented with standards in mind. It's almost like the administration considers national standards themselves a win. This may be true in a very basic sense (given national standards' difficult political history with, say Goals 2000). But I don't get any sense that the administration is concerned with leveraging coherence around standards in any real way. This is a missed opportunity.
I also think you made a really nice point that national standards could be adopted in part. In my mind, the feds can be a lot more effective if they set research/evidence-based principles for reform and then allow local entities to interpret these principles in light of local conditions. I'm not talking here about interpreting something like federal AYP mandates or simply requiring states to set standards without quality control. I'm really talking about drawing on research to craft, say, a range of important principles for teaching Algebra I (in light of content standards), allowing teachers to interpret and apply such principles in light of local conditions, and potentially being held accountable in a nuanced way for doing this. (I know, it sounds like science fiction, prohibitions against federal involvement in instruction/curriculum notwithstanding. But this is just to make a point.) I'm not sure national standards are exactly the thing that should be interpreted or modified by locals. But I think the basic point that the feds should arguably get involved in this sort of activity is be right on.
Civil Rights Act of 1964 is not founded on Congressional authority under the Spending Clause.
annon,
The portions of it that most directly apply to schools clearly are. See, e.g., 42 U.S.C. s2000-d ("No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.") (Pub. L. 88–352, title VI, § 601, July 2, 1964, 78 Stat. 252.).
--Scott