The Obama administration is increasingly known not for its legislative achievements but for its federal waivers to legislative achievements. It has exempted favored groups from immigration laws, welfare reform work requirements, even provisions of the Affordable Care Act (more than 1,300 businesses and unions have been given a reprieve from health coverage rules).
The boldest use of the waiver power, however, has come on the No Child Left Behind Act of 2001 (NCLB). More than half of the states have been granted exemptions from the law's requirement that all students be proficient in reading and math by 2014. When a law's provisions are ignored in a majority of cases, it can properly be considered overturned.
In this instance, the overturning has not provoked much controversy. The political constituency for NCLB was always limited. Many conservatives reject any federal role in education. The educational establishment has been in a decade-long revolt against NCLB's onerous performance requirements and obsessive focus on test results. Right and left — Republican governors and teachers unions — have found rare ideological agreement on educational federalism.
The only problem: Education is a massive failure of federalism. By the second half of the 20th century, America's public schools were betraying many of the students in their charge, including the overwhelming majority of poor and minority students. In 2000, 5 percent of African-American fourth-graders and 7 percent of their Hispanic peers were assessed proficient in math. Some students were left in dropout factories where teachers and administrators routinely blamed parents for their own overwhelmed incompetence. Other students were sabotaged by shoddy educational standards that left much of a generation unequal to global competition.
It is true that highly centralized governmental systems can be arrogant and mediocre. Public education demonstrates that a highly decentralized governmental system can also be arrogant and mediocre, particularly when parents are denied objective information about educational outcomes.
NCLB defined a limited but assertive federal role — schools were required to show improvement on standardized tests of reading and math for every subgroup of students or face penalties. By 2011, math proficiency had risen to 17 percent for African-American fourth-graders and 24 percent for their Hispanic peers. Progress was initially dramatic. Lately, it seems to have stalled.
But most opposition to NCLB was never about improving or refining the law. Some have an ideological opposition to testing as the enemy of educational creativity. They love the intangible joys of the profession, without the inconvenience of demonstrating that their work has any effect. Of course they do. The NCLB assessments cover rudimentary knowledge in math and reading for fourth- and eighth-graders. "There was a general feeling," says Kelli Gauthier, spokeswoman for the Tennessee Department of Education, "that there were these goals that no one was ever going to meet." Has there ever been a profession of comparable national importance that demanded less of itself?
"To label an improving school a failure is the worst thing you can do," Secretary of Education Arne Duncan recently observed. Really? Worse than labeling a school a success that doesn't teach the educational basics to most students? The problem here is not diagnosis; it is performance.
The Obama administration's waiverization of federal education policy involves a bargain. States pledge to pursue some positive reforms — merit pay, greater use of charter schools — in exchange for less rigorous outcome requirements. Note that the reward to states, the jackpot payoff, is lower standards — a measure of their priorities and values. States are permitted to focus on the worst 15 percent of schools, leaving the vast majority without effective accountability. The deal dispenses with options for parents with children in low-performing schools, including free tutoring and transfer to a working school. New accountability systems will once again be so confusing that no taxpayer or parent can understand them — the complexity in which mediocrity thrives.
There is room for improvement in NCLB — some adjustments in standards, but mainly to make them more uniform and rigorous. These waivers provide money to states with fewer strings attached — an approach that failed for 40 years. States desire more "realistic" and "flexible" goals than teaching the basics of reading and math to every student. In the interest of truthful advertising, they should be required to decorate their schools with the banner: "A reasonable portion of children left behind."
Why is NCLB so unpopular? Because it exposes the failure of adults in the lives of children. And the bipartisan response of many governors, educators and legislators — alarmingly, predictably — is to excuse the adults.
Michael Gerson's email address is email@example.com.