Education Law

"National" Standards and the Art of Cat Herding

'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.'

Full post as published by Edjurist on February 04, 2010 (boomark / email).