Law Professor Declares Arne Duncan’s Waivers Illegal

Sep 2, 2014 by

Peter Greene – An upcoming article in the Vanderbilt Law Review argues that the administration’s waiver program is both illegal and a very, very bad precedent. University of South Carolina law professor Derek W. Black has written articles about the intersection of federal power and school law before, but none quite as feisty as “Federalizing Education By Waiver.” And folks have questioned the legality of Duncan’s waivers all along, but this takes that game to a whole new level.

Black opens with one of the most concise summaries of the current reformster wave you’ll ever see:

Two of the most significant events in the history of public education occurred over the last year. First, after two centuries of local control and variation, states adopted a national curriculum. Second, states changed the way they would evaluate and retain teachers, significantly altering teachers’ most revered right, tenure. Not all states adopted these changes of their own free will. The changes were the result of the United States Secretary of Education exercising unprecedented agency power in the midst of an educational crisis: the impending failure of almost all of the nation’s schools under the No Child Left Behind Act (NCLB). The Secretary invoked the power to impose new conditions on states in exchange for waiving their obligations under NCLB…. As a practical matter, he federalized education in just a few short months.

This allows the kibbitzing to start immediately in response. Black does not distinguish at all between Common Core Standards and a national curriculum, a distinction without a difference that reformsters have fought hard to maintain. Nor will reformsters care for the assertion that states did not all adopt reform measures of their own free will. But all of that background in the first paragraph of the article is simply setting the stage for Black’s main point.

This unilateral action is remarkable not only for education, but from a constitutional balance-of-power perspective. … Yet, as efficacious as unilateral action through statutory waiver might be, it is unconstitutional absent carefully crafted legislative authority. Secretary Duncan lacked that authority. Thus, the federalization of education through conditional waivers was momentous, but unconstitutional.[emphasis mine]

via Law Professor Declares Arne Duncan’s Waivers Illegal | Peter Greene.

Print Friendly, PDF & Email

Related Posts