What Was Accomplished in the Era of Reform via Federal Regulation?

Paul E. Peterson
Year of publication: 
May 12, 2016

As the United States entered the 21st century it was trying to come to grips with a serious education crisis. The country lagged behind its international peers, and its half-century effort to erode racial disparities in student achievement had made little headway. Many people expected action from the federal government.

George W. Bush and Barack Obama, the century’s first two presidents, took up the challenge. For all their differences, they shared a surprisingly common approach to school reform: Both preferred a regulatory strategy. In 2001, Bush persuaded Congress to pass a new law, No Child Left Behind (NCLB), which created the nation’s first federal regulatory regime in education. When NCLB ran into trouble, Obama invented new ways of extending the top-down approach. Unfortunately, neither president came close to closing racial gaps or lifting student achievement to international levels.

The Obama Administration is now packing up and heading home, leaving the regulatory machine in ruins. A new federal law, the Every Student Succeeds Act (ESSA), has unraveled most of the federal red tape. Although student testing continues, the design and use of tests is now a state and local matter.

Regulation to the Rescue

The regulatory effort was bipartisan from the beginning. Senator Edward Kennedy and President Bush worked together to persuade Democrats and Republicans to pass NCLB, which was signed into law in January 2002. Every state was henceforth expected to set proficiency standards toward which students had to make “adequate progress” each year until all schools had crossed that bar in 2014. The law also required annual statewide tests in grades 3 through 8, and again in high school, and states had to publish the performance of students on these tests for every school. If students were not making progress, families could pick another public school within the district. If that didn’t work, students were to have access to after-school study programs. And if that failed, schools were to be reconstituted under new leadership.

All these steps required a vast number of regulations. But school districts still found ways of undermining federal objectives. They instituted byzantine procedures that parents had to navigate before they could exercise choice. Reconstitution of low-performing schools often consisted mostly of window dressing.

ednext_XVI_3_peterson_reform_fig04-smallStill, NCLB did shine a spotlight on the public schools, and accountability looked for a while like it could drive the achievement of America’s minority students forward. Between 1999 and 2009 black 4th-grade students gained 18 points in math and 14 points in reading on the authoritative National Assessment of Educational Progress (NAEP). In 8th grade, the math gains were, again, as much as 13 points, though reading gains were minimal (see figure 4). The story was virtually identical for Hispanic students. Even whites showed some signs of improvement.

But signs of steady improvement did little to bolster political support for the law. Instead, NCLB absurdities were becoming increasingly apparent. With nearly every school failing to bring all of its students up to full proficiency, almost all of them were at risk of reconstitution. Criticisms escalated, and many were justified. For instance, the federal definition of “failing schools” unfairly picked on those serving disadvantaged students. But the critiques of NCLB quickly degenerated into blanket attacks on standardized tests: “The tide on testing is turning,” said Randi Weingarten, president of the American Federation of Teachers, who then called for NCLB revisions that would “address the root cause of test fixation.” Even U.S. Secretary of Education Arne Duncan, averring that testing was “sucking the oxygen out of the room,” promised to do something about it.

Race to the Top

Responding to growing opposition, the Obama Administration invented an alternative way of perpetuating regulatory reform. Duncan announced Race to the Top (RttT), a competitive grants program that had been authorized and funded by the education stimulus package. At $4 billion, the money amounted to less than two-tenths of one percent of school expenditures in the United States. Yet the idea of a competitive race among states to meet federal goals captured media attention. Indeed, RttT competition proved so politically successful the Department of Education built on it by allowing all states to seek a waiver of most NCLB requirements by submitting RttT-like reform plans, including test-based teacher evaluations and the setting of standards similar to the Common Core State Standards. Eventually, 43 states, the District of Columbia, and Puerto Rico were granted waivers from NCLB, in effect gutting the federal law.

But Secretary Duncan had left himself badly exposed by constructing its rules on a series of questionable administrative maneuvers rather than a solid piece of congressional legislation. Tea Party activists attacked Common Core, objecting to what the Heritage Foundation called the Administration’s intent to nationalize “the content taught in every public school across America.” And teachers unions tightened the screws by balking at unfair evaluations of teacher performance. “Old tests are being given, but new and different standards are being taught,” National Education Association President Dennis Van Roekel declared. “This is not ‘accountability’—it’s malpractice.”

Meanwhile, two authoritative surveys of student performance cast doubt on the success of Obama’s reforms. Between 2009 and 2012, the performance of 15-year-olds on tests administered by the International Student Assessment (PISA) fell by 6 points in math and 2 points in reading. NAEP performances of both black and white students in 8th grade fell by one point in math and rose by just 2 points in reading between 2009 and 2015. At the fourth grade level whites register no gains in math and black students gain but a measly 2 points. The picture in reading is pretty much the same—2-point gains for blacks and whites alike. Hispanic gains were only slightly more.

Caught in the maelstrom, the Obama administration was unable to defend against a bipartisan move on Capitol Hill to end waivers altogether by enacting, for the first time since 2002, a new federal education law, ESSA. The law requires annual testing but leaves it to the states to decide how the testing will be done. Most of the other regulations have been removed, shifting authority over schools back to states and localities. Nor is there much appetite for new accountability rules at the state level. If continued student testing is to have an impact on reform, it will be due to the better information parents receive about the amount of learning taking place at each school, not top-down directives for improvement. The Bush-Obama era of reform via federal regulation has come to an end. The regulated have captured the regulators.

– Paul E. Peterson

Paul E. Peterson, editor-in-chief of Education Next, is professor of government and director of the Program on Education Policy and Governance at the Harvard Kennedy School.