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CHAPTER 1

A Brief History of Education Oversight in the United States

In December 2015, Americans witnessed an event even rarer than a lunar eclipse. A deeply divided and fractious U.S. Congress passed a significant piece of legislation with strong bipartisan support. That law, the Every Student Succeeds Act (ESSA, 2015), is the latest reauthorization of the Elementary and Secondary Education Act originally passed in 1965. ESSA redefines the role of the federal government in K–12 education and, in many ways, is a dramatic departure from the previous No Child Left Behind Act (NCLB, 2002) and the Race to the Top program (U.S. Department of Education, 2009). The authority of states and districts to oversee their own school-improvement processes is significantly enhanced, while the role of the federal government in school reform and accountability is dramatically reduced. Before examining the details and potential of the new law, let’s briefly review past U.S. education-reform efforts and how the federal government contributed to those efforts.

A Look Back

According to the Tenth Amendment of the U.S. Constitution, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” (U.S. Const. amend. X). This provision provides the basis of the legal theory that education is a function of the states rather than the federal government. The U.S. Supreme Court and the state courts have consistently ruled that education is one of the powers reserved for the states.

However, Brown v. Board of Education (1954) established that the federal government could limit the authority of the states when it comes to education. The plaintiffs in the case argued that state-sanctioned racially segregated schools should be ruled unconstitutional because they violate the Fourteenth Amendment’s provision that citizens cannot be denied equal protection of the law (U.S. Const. amend. XIV). The defendants argued that the issue had been repeatedly addressed in the courts from the time of Plessy v. Ferguson (1896), which authorized “separate but equal” schools, and the courts consistently supported racial segregation if the state provided equal facilities to both races.

John Davis, a renowned attorney representing the defendants, argued before the court, “This court has not once but seven times, I think, pronounced in favor of the ‘separate but equal’ doctrine” (as cited in Blaustein & Zangrando, 1991, p. 430).

Davis also pressed the doctrine of states’ rights under Article X, arguing:

Neither this Court nor any other court, I respectfully submit, can sit in the chairs of the legislature of South Carolina and mold its educational map…. It establishes the schools, it pays the funds, and it has the sole power to educate its citizens. (as cited in Friedman, 2003)

The Supreme Court rejected that argument in a unanimous decision, ruling that racially segregated schools were “inherently unequal” and should be integrated “with all deliberate speed” (Friedman, 2003). This ruling established that, under the right circumstances, the federal government could indeed play a role in K–12 education.

Federal Inroads Into K–12 Education

In 1965, the administration of President Lyndon Johnson used Article I, Section 8 of the Constitution to persuade the U.S. Congress to further strengthen the federal role in education. That section of the Constitution specifically gave Congress authority to “lay and collect taxes … to pay the Debts and provide for the common defense and general welfare of the United States” (U.S. Const., art. I, § 8). Citing this “general welfare” clause, Congress passed the Elementary and Secondary Education Act of 1965 (ESEA) to provide “financial assistance … to local educational agencies serving areas with concentrations of children from low-income families to expand and improve their educational programs” (Social Welfare History Project, n.d.).

President Johnson described the legislation as “the most sweeping educational bill ever to come before Congress…. As President of the United States, I believe deeply no law I have signed or will ever sign means more to the future of America” (Franklin, Harris, & Allen-Meares, 2006, p. 873).

The law was careful, however, not to totally circumvent the states. Each state could apply for ESEA block grants, and money would flow through the states to the local district. Furthermore, the 1965 legislation stipulated that no funds could be used to create a national curriculum. Matters regarding what students should learn and how their learning should be monitored continued to be reserved to the states. Nevertheless, this law provided the principal means through which the federal government provided funds to schools, communities, and children for education purposes. As Kris Sloan (2007) concludes:

Forty years of sustained federal commitment under the ESEA has changed the face of public education in the United States in many ways. Title I has helped bolster the academic achievement of millions of disadvantaged children particularly in mathematics and literacy…. The Title II Eisenhower Professional Development program has exposed thousands of classroom teachers to new professional knowledge and instructional techniques in mathematics, science, and other critical subject areas. Title VII, Bilingual Education, has helped generations of immigrant children learn English and succeed in school. These and other ESEA-sponsored programs have benefited numerous students, teachers, and parents. (p. 16)

Although ESEA was originally authorized for five years, Congress reauthorized and modified the law ten times between 1965 and 2015.

Although ESEA was originally authorized for five years, Congress reauthorized and modified the law ten times between 1965 and 2015. Both the NCLB Act of 2002 and the ESSA of 2015 are reauthorizations of this initial legislative effort to provide the federal government with a greater voice in K–12 public education. During these years, the call for school reform was never-ending—and the call came from many different sources.

Never-Ending School Reform

In 1983, President Ronald Reagan’s National Commission on Excellence in Education presented its conclusions regarding the quality of schooling in the United States in a hyperbolic report titled A Nation at Risk. The commission asserted that U.S. education had fallen victim to a “rising tide of mediocrity that threatens our very future as a nation and a people” (National Commission on Excellence in Education, 1983). The report was complete with dire warnings of decline, deficiencies, threats, risks, afflictions, and plight. Americans were urged to reverse the “unthinking, unilateral educational disarmament” that had taken hold of our schools and reestablish the United States as the world leader in educational attainment (National Commission on Excellence in Education, n.d.). To address the crisis, the commission called for more—more hours in the school day, more days in the school year, more standardized tests, more credits required for graduation, and more homework. Soon thereafter, more than three hundred different organizations issued proposals for reforming our schools.

In 1989, President George H. W. Bush attempted to gently interject a federal voice into the education reform discussion when he convened U.S. governors for a summit on education to establish national goals for education. To achieve the ambitious goals established at the summit (including that U.S. students would rank first in the world in mathematics and science achievement by the year 2000), President Bush and the governors called for “decentralization of authority and decision-making responsibility to the school site, so that educators are empowered to determine the means for achieving the goals and to be held accountable for accomplishing them” (“‘A Jeffersonian Compact’: The Statement by the President and Governors,” 1989). The federal government might set the goals, but the question of how to achieve them was left to the states and their local districts. This summit led to the Goals 2000: Educate America Act that President Bill Clinton signed in 1994 (North Central Regional Educational Laboratory, 1994).

The federal government might set the goals, but the question of how to achieve them was left to the states and their local districts.

By the year 2000, however, the United States had not come close to achieving any of its education goals. Leaving education in the hands of fifty states and more than fifteen thousand local school districts was not yet providing students with a world-class education.

Perhaps one of the reasons for the failure of the Goals 2000: Educate America Act was that few states had a process for monitoring student learning or holding schools accountable for that learning (Civic Impulse, n.d.b). Many states relied on nationally normed tests that placed students along a continuum of achievement rather than a criterion-referenced test designed to determine which students had met a designated proficiency level.

As of 2002, only nine states required all students in grades 3–8 to take a criterion-referenced test in English language arts, and only seven did so in mathematics (Aldeman, 2015). Most states looked at student performance as a whole rather than disaggregating data by particular groups of students, and only twenty-two states disaggregated high school graduation rates (Aldeman, 2015). At the beginning of the 21st century, if someone accused a school that its students were not learning, in most instances the charges would be dismissed for a lack of evidence. In response to this chaotic situation, the U.S. government stepped in.

No Child Left Behind Act

Within three days of assuming office in 2001, President George W. Bush called for the adoption of NCLB as his first legislative initiative. By December of that year, the law passed with overwhelming bipartisan support in both the Senate and House of Representatives—87 to 10 and 381 to 41, respectively (Civic Impulse, n.d.a). Its broad themes of additional funding for education, academic standards, accountability, civil rights, and school choice found widespread support in the early days of 2002.

NCLB signaled a major turning point in the effort to reform U.S. education by dramatically increasing the authority of the federal government in matters that had largely been left to the states. The Commission on No Child Left Behind (2007) described it as impacting education “more than any other federal education law in history” and a “bold step to accelerate progress in education and fulfill our promise to our nation’s children” (p. 11).

NCLB aimed to replace this laissez-faire approach to education by establishing accountability with a capital A. While the French expression laissez-faire often describes free trade or other economic policies that allow individuals or nation-states to do as they wish, it described education well in the years before NCLB, when there was no national consensus on what students should know and be able to do. Only a few states, including Missouri (the Show-Me Standards) and Florida (the Sunshine State Standards), had established academic content standards and state tests, and the prevailing view was for local control, meaning each school district—indeed, each school and classroom—was left on its own to decide what an acceptable level of student performance should be.

NCLB mandated annual assessments in reading and mathematics in grades 3–8 and once in high school. Schools were required to report results separately by race, ethnicity, and other key demographic groups. They also were required to demonstrate adequate yearly progress and faced interventions and increasingly severe sanctions if they failed to do so.

If a school failed to make adequate yearly progress two years in a row, students in that school were allowed to transfer to another school in the district that was meeting standards, and the state would hold back 10 percent of the school’s Title I money. Failure for a third year meant the school had to provide free tutoring services to students. Continued failure could lead to state interventions, such as closing the school, turning it into a charter school, taking control of the school, or using another turnaround strategy.

A school’s inability to meet the standard of any one of these thirty-eight factors meant the entire school was failing.

The Goals 2000 initiative established thirty-eight different factors to determine whether or not a school was failing under NCLB. A school’s inability to meet the standard of any one of these thirty-eight factors meant the entire school was failing. By the year 2014, the inability of a single student to demonstrate proficiency on the mandated state test meant the school would be designated as failing. If educators did not improve student achievement, they would be subjected to increasingly punitive sanctions for failure to do so (U.S. Department of Education, 2003).

However, NCLB left the questions of which academic standards to adopt, which annual assessments to use, and what constituted proficiency on those assessments to each state to decide. So how did states respond? In too many cases, they lowered standards, adopted easier assessments, and set low benchmarks for proficiency in an effort to ensure their schools would look good to residents and avoid NCLB sanctions. Critics of the law described this phenomenon as an educational race to the bottom.

Within five years of the passage of NCLB, Michael Petrilli, a member of the Bush administration charged with overseeing this law, concluded that even though initially he had been a “true believer,” he had “reluctantly come to the conclusion that NCLB as enacted is fundamentally flawed and probably beyond repair” (Thomas B. Fordham Institute, 2007). He lamented the fact that asking all states to reach universal proficiency by 2014 but allowing them to define proficiency as they saw fit had, inevitably, created a race to the bottom. He writes, “I can’t pretend any longer that the law is ‘working,’ or that a tweak and a tuck would make it work” (Thomas B. Fordham Institute, 2007).

In 2009, the National Governors Association (NGA) and the Council of Chief State School Officers (CCSSO) proposed a plan to address the NCLB problems of lowered expectations—the Common Core State Standards.

Common Core State Standards

If states could agree to a set of national standards in mathematics and English language arts and on the assessments to monitor student achievement of those standards, they could promote greater academic rigor and a more accurate comparison of student achievement between states. Thus, the Common Core State Standards initiative was born, an initiative initially supported by forty-five states (NGA & CCSSO, 2010b).

Meanwhile, however, the stipulations of NCLB remained in effect, and each year as more and more schools failed to demonstrate adequate yearly progress, states petitioned the U.S. Department of Education under President Barack Obama’s administration for waivers to avoid sanctions and allow them to pursue other avenues of school improvement. President Obama and Secretary of Education Arne Duncan used this opportunity to provide waivers only if states agreed to implement the Obama administration’s education priorities, collectively known as RTTT.

According to the U.S. Department of Education (2009), the states agreed to include the following six priorities.

1. Work collaboratively with other states to adopt a common set of high-quality standards internationally benchmarked that ensure college and career readiness. (This stipulation was generally understood to mean that states must embrace the emerging Common Core State Standards.)

2. Join a consortium of states to administer rigorous assessments based on the internationally benchmarked standards.

3. Make student growth (or value-added testing) a factor in teacher and principal evaluations, including decisions regarding retention or removal of tenured and untenured teachers.

4. Make student growth a factor in a plan to provide additional compensation (merit pay) for effective teachers and principals.

5. Identify persistently low-performing schools (the bottom 5 percent in the state) and develop plans to either close or reconstitute them.

6. Provide alternative routes to certification for both teachers and principals.

RTTT offered federal funding to cash-starved states struggling to deal with the most dramatic recession since the Great Depression of the 1930s. However, to receive the funds, states had to compete with one another to demonstrate their willingness to embrace RTTT requirements. Education policies states had been reluctant to enact and Congress had been unwilling to mandate soon became implemented through multibillion-dollar carrots coming precisely at a time when school systems most needed federal funds. Two-thirds of the states changed their laws on teacher evaluation, half the states declared student test scores would be included in teacher evaluations, and eighteen weakened tenure protections (Goldstein, 2014). While NCLB might punish schools, RTTT provided the tools to punish individual teachers and principals. Finally, it was time to assess these reform efforts and ask, “How are they working?”

While NCLB might punish schools, RTTT provided the tools to punish individual teachers and principals.

Assessment of Reform Efforts

Educators are familiar with the reform strategies that have swept over them since the passage of NCLB—launching test-based accountability that ensured every public school would eventually be designated as failing, increasing the availability of vouchers so students could abandon public schools, taking steps to make it easier to fire educators and replace them with people with no education background, insisting on teacher evaluations based on standardized test scores, reconstituting schools, closing schools, and providing merit pay. All this was done to promote the goals of ensuring U.S. schools would become the highest-performing schools in the world and improving poor and minority students’ achievement.

After many years of experience with these punitive strategies, it is fair to ask, “How has that worked for us?” In Rick’s book In Praise of American Educators: And How They Can Become Even Better (DuFour, 2015), he makes the case that these reforms failed. He is not alone in arriving at this conclusion. The National Center for Education and the Economy concludes, “There is no evidence that it (the reform agenda) is contributing anything to improved student performance, much less the improved performance of the very low-income and minority students for which it was in the first instance created” (Tucker, 2014, p. 2).

Similarly, the National Education Policy Center writes, “A sober and honest look at the effects of the No Child Left Behind Act reveals a broad consensus among researchers that this system is at best ineffective and at worst counter-productive” (Welner & Mathis, 2015, p. 7).

Not a single state came anywhere near the NCLB goals, and none of the highest-performing nations in the world were using any of the reform strategies imposed on U. S. public schools.

The number of U.S. students scoring below proficient on the Programme for International Student Assessment (PISA) exam has remained flat since the early 2000s (Sparks, 2016), and other indicators of student achievement were rising faster in the decade before NCLB than the decade after its passage (FairTest, 2015). Not a single state came anywhere near the NCLB goals, and none of the highest-performing nations in the world were using any of the reform strategies imposed on U.S. public schools. The efforts of the federal government to make student achievement in the United States the highest in the world have clearly failed.

Since the founding of public schools, there has been a history of fierce independence. While many European nations settled on national curricula, the colonies were as independent about education as they were about governance. Despite calls for education reform from leaders such as Thomas Dewey in the late 19th century and A Nation at Risk in the late 20th century, education remained firmly within the control of local and state governments. The 21st century ushered in sixteen years of a dramatic increase in the influence of the national government on education policy, first with No Child Left Behind and then with Race to the Top. While there was a bipartisan support for the legislation, and a nearly universal pursuit of the dollars attached to it, the price of federal control ultimately exceeded its value. Thus, in December 2015, a bipartisan majority of Congress passed the Every Student Succeeds Act, signed by President Obama, while Republican senators and members of congress stood behind him. This legislation appeared to turn the tide of federal control of education and a range of matters, from testing to curriculum to teacher evaluation, back to the states. In the next chapter, we consider the implications of this important law.