Rick Hess of the conservative American Enterprise Institute wrote a hard-hitting and sensible column critical of Arne Duncan’s NCLB waivers. The column is especially pertinent in light of Duncan’s decision to withdraw his waiver from Washington State for daring to defy his will. Duncan will punish the state of Washington because it failed to adopt a way of using test scores to evaluate teachers, a practice that has been scorned by major scholarly organizations and that has no evidence to demonstrate its efficacy.
Hess argues, rightly in my judgment, that the Secretary of Education should not be allowed to make up any law or sanction or demand that he wants without Congressional authorization.
As he points out, No Child Left Behind is the law of the land. It is a failed law, and it should be fixed.
But when the Democrats controlled Congress, they made no attempt to rewrite NCLB.
And Duncan could have tried. He could have tried in 2009 and 2010, when the Democrats had hefty majorities in the House and Senate. He didn’t. Partly because he and his team were having so much fun with make-it-up-as-you-go projects like Race to the Top and School Improvement Grants, cases where a Democratic Congress had given him carte blanche to do pretty much whatever he felt like. Duncan clearly found that more engaging than the dreary business of negotiating with Congress.
Heck, the administration took more than a year to even offer its sketchy “ESEA blueprint” and those big Democratic majorities never moved a bill out of committee. In 2011, 2012, or 2013, Duncan could have worked to pass a bipartisan bill. In fact, last summer, the House passed an ESEA reauthorization (the Student Success Act) that I think is pretty terrific.
Instead, Duncan opted to gut NCLB by waiving key parts of the law for states that promised to do stuff he likes; his problem is that he has no authority to enforce the whims that he’s substituted for statute. If you read Duncan’s letter yanking Washington’s waiver, the casus belli was the failure of the state’s legislature to pass a law Duncan had demanded. However, Duncan has no legal basis to give orders to Washington’s legislature (nowhere does NCLB empower Duncan to tell states how to design teacher evaluation).
Duncan’s behavior has been, quite literally, lawless. The first time that Washington refused to do as commanded, as Duncan’s letter notes, he felt free to nonetheless extend its waiver. This time he didn’t. Of course, it’s a safe bet that every state is currently violating some part of its waiver. And those states which have dropped PARCC or SBAC are massively in violation of their waivers (after all, for good or ill, NCLB actually does give the feds some say-so on state tests–so these states are lying about stuff actually related to the law). Yet Duncan, presumably trying to avoid doing further gross damage to the Common Core cause, seems inclined to turn a blind eye.
Hess has a note of caution for those who like Duncan’s waivers:
First, those cheering Duncan now might feel differently about this approach to mandating reform if Rand Paul’s Secretary of Education decides to suspend NCLB for states that offer school vouchers–or if Hillary Clinton’s does for states that require all teachers to have an ed school degree. The thing about ignoring the rule of law and making-it-up-on-the-fly is that it’s only fun when you like the outcome.
Second, if something is imposed on a whim, it can be reversed on a whim. The next Secretary can readily wipe away those old waiver conditions and issue new ones. The last things schools need is more instability and policy churn.
Third, bypassing the legislature may be fun but it avoids the need to forge consensus or build support. Laws that have been passed by Congress have muscle, funding, and legitimacy. Duncan’s freelancing does not.
Fourth, the federal government doesn’t run schools. It can tell states to make schools do things, but it can’t make them do them well. That’s a general caution for those who would “reform” schools from Washington. (It’s why I can agree with the administration on a number of big ideas and still stridently oppose their efforts to promote them.) This caution applies many times over when operating without the kind of broad support, concrete carrots, and statutory sticks that only legislative sanction can provide.
Diane Ravitch's blog 
Hess often appears to be more reality-based than most so-called reformers, but it’s more than a little ironic when he says that “The last thing schools need is more instability and policy churn,” given that both are common modi operandi of these people.
The source of the lawlessness of Mr. Duncan is how little value congress places on education. Oh yes, when elections comes, “failing schools” is an excellent, low risk/high reward, policy to bring out on the stump–everyone wants worldclass schools. But after the election it is back to what really matters — economic/foreign/domestic policies. Mr. Duncan would never get away with any of these decisions if he were Secretary of State/ or Treasury, etc. A thought experiment: Mr. Duncan cancels farming subsidies for farmers who not have complied with a new data driven farm accountability act—that would become an impeachable offense, not of Duncan, but of the president. No, Duncan is pretty much free to do what he wants because few in Congress really care about education–after all most of representatives will tell you that the got to high office, not because of education, but because of grit.
Sorry, off-topic, but this Karen Lewis speech is a must-read: http://preaprez.wordpress.com/2014/05/05/karen-lewis-the-pension-heist-must-read/#comments
Let’s be clear. It’s not Duncan’s job to “negotiate” with Congress so it will do its job. If the law needs to be repealed or revised, that’s Congress’s job. And the Secretary of Ed has pretty broad waiver authority. If someone thinks Duncan’s acting outside that authority, then get off the pot and file a lawsuit already.
You are playing devil’s advocate, and I am not buying it.
What Duncan is doing is illegal and arguably impeachable.
You believe it is Duncan’s job to negotiate with Congress so it will do its job?
I’m partly playing devil’s advocate, but not entirely. I understand why Duncan gets the blame from the anti-reform crowd: I can’t think of another federal agency head who has single-handedly expanded the power of his agency as much as Duncan has with the US DOE.
What I don’t get is why so little attention is paid to Congress, which alone has the authority and responsibility to do the only thing that everyone on this blog seems to want — repeal NCLB.
As for whether “[w]hat Duncan is doing is illegal,” I think I tend to take that word (“illegal”) more literally than you do. It’s a highly arguable point, to put it mildly, and therefore, as you aren’t a court of law, I’m sure you’ll understand why I don’t just take your word for that.
Hi Diane,
David Isenberger, a Washington state school board member AND Microsoft employee, responds to Duncan:
http://www.washingtonpost.com/blogs/answer-sheet/wp/2014/05/04/arne-duncan-can-keep-his-cynical-nclb-waiver-washington-school-board-member/
This is a must read, and I hope Isenberg’s response gets distributed widely.
I really liked it too.
It seems a shame the guy has to put forth his “credentials” (Microsoft employee, someone who went to DC and tried to fix this) because ANY public school advocate should be at least given a hearing, but I get that it is probably the only way to get Duncan’s attention.
I liked this part:
“Such things don’t appear overnight, they’re not accidental, and I have no intention of having our work undermined by distant labels and bracketed explanations.”
I also got a kick out of it because the implication is they’re bad MANAGERS and for an administration that puts so much emphasis on “free market reforms” and “public-private partnerships” that probably stings.
Great letter, anyway. Good job!
Rick Hess is the only conservative ed reformer that I have ever found myself agreeing with from time to time. As a genuine progressive (as opposed to the privatizers who call themselves progressive but are really anything but), that never ceases to amaze me. I know that I have not become more conservative, so what’s the deal? Has Hess become more liberal?
Perhaps he’s just not in the habit of lying to himself and others the way most so-called reformers do.
A teacher/researcher’s view with research on the why Duncan’s decision to punish the state of Washington because it failed to adopt a way of using test scores to evaluate teachers is an invalid evaluation process.
Three research documented examples why Duncan’s decision to punish the state of Washington because it failed to adopt a way of using test scores to evaluate teachers is an invalid evaluation process to evaluate K-12 teacher performance, as discussed by “Rick Hess Blasts Duncan’s Waiver Policy.” Firstly, is some background assumptions information on the K-12 education system. The two assumptions that most everyone including teachers and administrators agree upon include: (1) Each grade is incrementally more advanced than the previous grade. (2) Students are to be promoted by proficiency as the students are promoted from grade to grade. The former is obviously applied in the K-12 system, but the later “promotion by proficiency” as required by California State law AB 1626, ( 1998) and nationally by NCLB in math and English for all students by the 2013-2014 school year is not. The NCLB promotion by proficiency portion of the law is still is in effect until congress makes changes in the law. Although president Obama stated that he will not enforce the law in 46 states, the NCLB promotion by proficiency law is still in effect.
The reason why the proficiency mandate of the NCLB law is so important to Duncan’s failed decision is that the student on entrance to the course by the NCLB law is required to be proficient. The three examples that follow will document this failure of the local district ADMINISTRATION’s to implement the NCLB law. In fact, a strong argument could be made the local administration that is placing the student into classes without the proficiency requirement could be sued or their employment terminated for failure of enforcing the proficiency requirement of the NCLB law.
Three research studies, one national, the NAEP clearly documents that by 8th grade the black and Latino students are four years behind the white/Asian students or the MEAN black and Latino students have skills of 4th grade students. Obviously, logic and research suggests that one can not effectively teach 4th grade students 8th grade material and expect the students to be proficient by the end on 8th grade competencies that the NCLB demands for appropriate student learning.
The next two classroom examples support the NAEP research. In the evaluation of 61 students in two 8th grade classes, one honor algebra)N = 31) and the other pre-algebra(N =29). During the last month of the school year, a 50 question, ten area diagnostic -prescriptive exam was given to both classes. The test had two distinct areas with 25 questions in whole numbers, decimals and factions- 6th grade material and 25 questions in general math 7th grade topics- measurement, signed numbers, percent, measurement and perimeter, area, volume geometry. If proficiency was defined as 80% correct, the difference between the mean proficient and mean non-proficient student scores was approximately 40 % in each of the ten area and the composite. In addition about ½ of the students had scores less than 50% correct on both parts. Stanford math norm’s documents that each years equates to 9.1% correct difference. Therefore, a 40% difference equates to a four year difference in skills- or once again the mean non proficiency 8th grade student has skills of a fourth grader. Question: In both cases, how can one use test scores to FAIRLY evaluate 8th grade teacher’s teaching effectively when many student’s skills are at a fourth grade level
The final example was this same test listed above was given pre/post to a series of developmental college student classes, N = 106 to evaluate student learning. The pre-post learning difference between the proficient student, defined as students with entrance scores of 80% or higher, and the non-proficient students was 2 to 1. In other words, if the proficient students at entrance to the course were evaluated separately from the non-proficient students, the student learning gain evaluation would be high for the proficient students and low for the non-proficient students. Since the SAME teacher taught both the proficient and the non-proficient students, the high and low gain scores respectively, how can the same teacher be identified as a good teacher in one class based upon high learning gain scores and be evaluated as an unfit teacher when teaching non proficient students with low learning gain scores. In other words, if all the students entering the class were proficient as the federal and state law mandates, then the learning gain may yield a valid evaluation of the teacher performance. However this rarely occurs especially in the educationally disadvantage classroom, which is very likely in an area that have varied ethnic back grounds and educationally disadvantaged.
Using these three examples, clearly the use of student scores is an invalid measure of teacher evaluation, since the student background pre-requisite skill differences empirically determines a student’s learning gain for the same instructor .(*) Clearly, Duncan’s decision to punish the state of Washington because it failed to adopt a way of using test scores to evaluate teachers is an invalid evaluation process. In addition, the above and additional research must be articulated to other educators and the general public supporting why the evaluation of teachers using test scores is not only invalid, but punishes many highly effective teachers unfairly, many of which are teaching the educationally disadvantaged students.
Ironically, if the educationally disadvantaged students were promoted by proficiency as students move from grade to grade as the NCLB law mandates, affirmative action and unjust teacher evaluations proposals would not be necessary! This researcher has yet to find anyone including teachers who disagree with the preceding sentence pronouncement.
* Research documentation is available from this instructor/researcher at ekansgas@juno.com
Sincerely, Eric Kangas, a forty year retired instructor/researcher who has taught at all three educational levels, K-12, community college and university( CSU, Private, and UC )
Eric,
You have proposed an interesting juxtaposition of various standardized test results. But one needn’t go that tortuous route to understand why “the evaluation of teachers using test scores is not only invalid”.
Because when one starts with invalidities one ends with invalidities. Crap in crap out syndrome. Noel Wilson has shown the complete invalidity of the whole educational standards and standardized testing due to myriad epistemological and ontological errors. Any results gleaned are as he says “vain and illusory”. Read and understand his never refuted nor rebutted “Educational Standards and the Problem of Error” found at: http://epaa.asu.edu/ojs/article/view/577/700
Brief outline of Wilson’s “Educational Standards and the Problem of Error” and some comments of mine. (updated 6/24/13 per Wilson email)
1. A quality cannot be quantified. Quantity is a sub-category of quality. It is illogical to judge/assess a whole category by only a part (sub-category) of the whole. The assessment is, by definition, lacking in the sense that “assessments are always of multidimensional qualities. To quantify them as one dimensional quantities (numbers or grades) is to perpetuate a fundamental logical error” (per Wilson). The teaching and learning process falls in the logical realm of aesthetics/qualities of human interactions. In attempting to quantify educational standards and standardized testing we are lacking much information about said interactions.
2. A major epistemological mistake is that we attach, with great importance, the “score” of the student, not only onto the student but also, by extension, the teacher, school and district. Any description of a testing event is only a description of an interaction, that of the student and the testing device at a given time and place. The only correct logical thing that we can attempt to do is to describe that interaction (how accurately or not is a whole other story). That description cannot, by logical thought, be “assigned/attached” to the student as it cannot be a description of the student but the interaction. And this error is probably one of the most egregious “errors” that occur with standardized testing (and even the “grading” of students by a teacher).
3. Wilson identifies four “frames of reference” each with distinct assumptions (epistemological basis) about the assessment process from which the “assessor” views the interactions of the teaching and learning process: the Judge (think college professor who “knows” the students capabilities and grades them accordingly), the General Frame-think standardized testing that claims to have a “scientific” basis, the Specific Frame-think of learning by objective like computer based learning, getting a correct answer before moving on to the next screen, and the Responsive Frame-think of an apprenticeship in a trade or a medical residency program where the learner interacts with the “teacher” with constant feedback. Each category has its own sources of error and more error in the process is caused when the assessor confuses and conflates the categories.
4. Wilson elucidates the notion of “error”: “Error is predicated on a notion of perfection; to allocate error is to imply what is without error; to know error it is necessary to determine what is true. And what is true is determined by what we define as true, theoretically by the assumptions of our epistemology, practically by the events and non-events, the discourses and silences, the world of surfaces and their interactions and interpretations; in short, the practices that permeate the field. . . Error is the uncertainty dimension of the statement; error is the band within which chaos reigns, in which anything can happen. Error comprises all of those eventful circumstances which make the assessment statement less than perfectly precise, the measure less than perfectly accurate, the rank order less than perfectly stable, the standard and its measurement less than absolute, and the communication of its truth less than impeccable.”
In other word all the logical errors involved in the process render any conclusions invalid.
5. The test makers/psychometricians, through all sorts of mathematical machinations attempt to “prove” that these tests (based on standards) are valid-errorless or supposedly at least with minimal error [they aren’t]. Wilson turns the concept of validity on its head and focuses on just how invalid the machinations and the test and results are. He is an advocate for the test taker not the test maker. In doing so he identifies thirteen sources of “error”, any one of which renders the test making/giving/disseminating of results invalid. As a basic logical premise is that once something is shown to be invalid it is just that, invalid, and no amount of “fudging” by the psychometricians/test makers can alleviate that invalidity.
6. Having shown the invalidity, and therefore the unreliability, of the whole process Wilson concludes, rightly so, that any result/information gleaned from the process is “vain and illusory”. In other words start with an invalidity, end with an invalidity (except by sheer chance every once in a while, like a blind and anosmic squirrel who finds the occasional acorn, a result may be “true”) or to put in more mundane terms crap in-crap out.
7. And so what does this all mean? I’ll let Wilson have the second to last word: “So what does a test measure in our world? It measures what the person with the power to pay for the test says it measures. And the person who sets the test will name the test what the person who pays for the test wants the test to be named.”
In other words it measures “’something’ and we can specify some of the ‘errors’ in that ‘something’ but still don’t know [precisely] what the ‘something’ is.” The whole process harms many students as the social rewards for some are not available to others who “don’t make the grade (sic)” Should American public education have the function of sorting and separating students so that some may receive greater benefits than others, especially considering that the sorting and separating devices, educational standards and standardized testing, are so flawed not only in concept but in execution?
My answer is NO!!!!!
One final note with Wilson channeling Foucault and his concept of subjectivization:
“So the mark [grade/test score] becomes part of the story about yourself and with sufficient repetitions becomes true: true because those who know, those in authority, say it is true; true because the society in which you live legitimates this authority; true because your cultural habitus makes it difficult for you to perceive, conceive and integrate those aspects of your experience that contradict the story; true because in acting out your story, which now includes the mark and its meaning, the social truth that created it is confirmed; true because if your mark is high you are consistently rewarded, so that your voice becomes a voice of authority in the power-knowledge discourses that reproduce the structure that helped to produce you; true because if your mark is low your voice becomes muted and confirms your lower position in the social hierarchy; true finally because that success or failure confirms that mark that implicitly predicted the now self evident consequences. And so the circle is complete.”
In other words students “internalize” what those “marks” (grades/test scores) mean, and since the vast majority of the students have not developed the mental skills to counteract what the “authorities” say, they accept as “natural and normal” that “story/description” of them. Although paradoxical in a sense, the “I’m an “A” student” is almost as harmful as “I’m an ‘F’ student” in hindering students becoming independent, critical and free thinkers. And having independent, critical and free thinkers is a threat to the current socio-economic structure of society.
Lamar Alexander on waivers: “said the administration’s overreach is creating “a backlash among conservatives who don’t like the federal government involved and backlash among teachers’ unions who don’t want any form of student achievement related to teacher evaluation.”
“You’re undermining, I’m afraid, the very high standards and teacher evaluation systems that both of us want. In other words, I think the way to get where both of us would like to go is not by ordering it from here, but by letting the governors and the states have the responsibility to do it.” april 30, 2014