Peter Greene discovered an article in the Vanderbilt Law Review by University of South Carolina law professor Derek W. Black that argues that Arne Duncan’s waivers from NCLB are unconstitutional.

Greene writes, quoting the article by Black:

“Two of the most significant events in the history of public education occurred over the last year. First, after two centuries of local control and variation, states adopted a national curriculum. Second, states changed the way they would evaluate and retain teachers, significantly altering teachers’ most revered right, tenure. Not all states adopted these changes of their own free will. The changes were the result of the United States Secretary of Education exercising unprecedented agency power in the midst of an educational crisis: the impending failure of almost all of the nation’s schools under the No Child Left Behind Act (NCLB). The Secretary invoked the power to impose new conditions on states in exchange for waiving their obligations under NCLB….As a practical matter, he federalized
education in just a few short months.”

Greene then says:

“This allows the kibbitzing to start immediately in response. Black does not distinguish at all between Common Core Standards and a national curriculum, a distinction without a difference that reformsters have fought hard to maintain. Nor will reformsters care for the assertion that states did not all adopt reform measures of their own free will. But all of that background in the first paragraph of the article is simply setting the stage for Black’s main point.

“This unilateral action [writes Black] is remarkable not only for education, but from a constitutional balance-of-power perspective. … Yet, as efficacious as unilateral action through statutory waiver might be, it is unconstitutional absent carefully crafted legislative authority. Secretary Duncan lacked that authority. Thus, the federalization of education through conditional waivers was momentous, but unconstitutional.”