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Reason Foundation

The Constitution Left Behind

Respecting - not shredding - the Constitution will produce more educational opportunities

Andrew Coulson
December 13, 2007

The 2002 No Child Left Behind Act is a legal, practical and strategic mistake. It transgresses limits on federal power enshrined in the Constitution; is inherently incapable of delivering on its promises; wastes staggering amounts of money that could be helping to educate children; and distracts attention from genuine market reforms that would actually accomplish its goals.

For those in doubt on the constitutional question, here is a quote from the book History of the Formation of the Union under the Constitution:

This Q&A rests squarely on the Tenth Amendment, which reserves for the states and the people powers not expressly enumerated and delegated to Congress by the Constitution. It was published by the federal government in 1943, under the oversight of the president, the vice president, and the speaker of the House. 1943. That means, not even the hyper-activist administration of Franklin Delano Roosevelt believed that Congress had a mandate to make K-12 education policy for the nation.

But that was then.

Congress began testing the education policy waters with the National Defense Education Act of 1958, which funded math and science curriculum development programs during the post-Sputnik hysteria of the time. It then jumped into the education business with both feet with the Elementary and Secondary Education Act of 1965 – of which NCLB is the latest reauthorization.

It is true that the Supreme Court has gone along with this federal power grab every step of the way. That doesn't make it right. Most Americans now agree, for example, that the "separate but equal" doctrine established by the Supreme Court's 1896 Plessy v. Ferguson ruling was a travesty. Nevertheless, it was accepted jurisprudence for 60 years. Similarly, existing laws violating the Tenth Amendment don't make more such laws any more constitutional.

Of course conservative supporters of federal intervention in education have their own take on the Tenth Amendment. They think it should be ignored. No less illustrious a duo than former education secretaries William Bennett and Roderick Paige have characterized the views expressed in the preceding paragraphs as a "naïve commitment to states' rights." Perhaps that's the sort of trenchant constitutional analysis they would mandate that children be taught in their federally-controlled schools.

Even if NCLB were constitutional, and even if it substantively expanded school choice in the short term, it would remain a bad idea. As I have argued elsewhere, federal school choice measures that involve Uncle Sam handing out vouchers would likely result in the federal regulation of private schools, smothering the kind of real market activity that is necessary to make broadest possible choices available. I won't bother to rehash that argument here because NCLB does not in fact create meaningful school choice. As originally envisaged by President Bush, NCLB included a provision for students in failing public schools to receive vouchers for private school tuition. That provision was dropped from the initial drafts before the laser printers had stopped humming. What the law does require is that states offer students in failing schools the option of attending another public school. That is no more meaningful than the choice of colors that Henry Ford offered on his Model T ("any color you want, so long as it's black"). Public schools in most states are tightly constrained in the curricula they teach, the people they can hire, the salaries they can set, and the tests they administer. A "choice" of public schools is thus not a meaningful market choice.

NCLB also requires districts to provide free private tutoring services under certain circumstances. While private tutoring can indeed be helpful, only a tiny fraction of eligible students have participated – in many cases because public school districts have not done an effective job of publicizing this option and easing the sign-up process. We should be surprised?

Even if this provision were working as intended, it would still be a misapplication of economic and policy resources. The best that tutoring can do is to remediate some of the damage caused by ineffective instruction delivered during the regular school day. Simultaneously funding a grossly inefficient monopoly system and a limited market solution is unacceptably wasteful. It is the equivalent of a health care system that forced families to spend 90 percent of their medical budget on magic beans and feng shui, leaving them with 10 percent to pay for x-rays and antibiotics. Would that be good enough for your kids? There is a moral imperative to fix the K-12 system as a whole. Every dollar we waste on the current monopoly leaves a child less well educated.

And NCLB is indeed wasteful. Tens of billions of dollars over pre-existing federal spending levels have been thrown at the program, to no avail. As my colleague Neal McCluskey and I documented in our September NCLB report ("End it, Don't Mend it"), the best research on NLCB's academic effects indicates that it has not affected pre-existing trends in student achievement. Yes, scores on some National Assessment of Educational Progress (NAEP) tests – widely regarded as the most reliable tests of student performance -- have ticked up a bit since NCLB was passed in 2002, but they had been slowly drifting upward since the 1990s, long before NCLB was a twinkle in the president's eye. What's more, these gradual increases have been occurring only at the 4th and, to a lesser extent, the 8th grades. High school seniors score no higher today than they did more than 30 years ago, so the recent upticks in some subjects in lower grades have been evaporating by the end of high school.

There is another approach to education that we know does work: free and competitive markets. Since I wrote a literature review on the subject in 2004, I have been maintaining a list of studies comparing the private and government provision of elementary and secondary education around the world, across six different outcomes: student academic achievement (measured by test scores), school efficiency (measured by student achievement per dollar spent), parental satisfaction, the orderliness of classrooms, the condition in which physical facilities are maintained, and the earnings of graduates. The 59 studies currently in that list report 80 separate statistically significant findings comparing public and private sector educational outcomes. Seventy-two of them favor private provision of education.

And while I haven't been keeping track of all the intersectoral comparisons of high school graduation rates and college acceptance/graduation rates, two studies I've come across in that field also favor the private sector (by Derek Neal of the University of Chicago, and Jay Greene, now at the University of Arkansas).

So NCLB is an ineffective and unconstitutional distraction from the sorts of true market policies that actually improve achievement, efficiency, graduation rates, social outcomes, and overall parental satisfaction -- policies such as education tax credits for personal use and for donations to private scholarship funds that serve low-income families. This combination of credits is an ideal means of providing universal access to a quality – yet diverse – education, as a forthcoming paper by the Cato Institute's Adam Schaeffer demonstrates.

NCLB's popularity among some conservatives stems mainly from wishful thinking and the idea that unconstitutional federal intrusions in the classroom are acceptable – so long as conservatives themselves are the intruders. But this is short-sighted. Given the current composition of Congress and the prospects for the next presidential election, conservatives will not likely be the ones charting the law's future. They have given the federal government a badly designed new weapon, loaded it, and handed it to the other party. The sooner that weapon is disassembled and disposed of, the better off American children will be.



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