Sen. Rubio to Sec. Duncan: Dear Sir, Obey the Law

Senator Marco Rubio has just written to Secretary of Education Arne Duncan, requesting that he not break the law. At issue is the administration’s plan to offer states waivers from the No Child Left Behind act if they agree to adopt national standards or pursue other educational goals of the administration. Rubio states that these conditional waivers violate the U.S. Constitution, the Department of Education Organization Act, and the No Child Left Behind Act. He’s right.

As my Cato colleagues and I have noted many times, the Constitution mentions neither the word “school” nor the word “education,” and so, under the 10th Amendment, reserves power over those concerns to the states and the people.

The Act creating the Department of Education is equally clear:

No provision of a program administered by the Secretary or by any other officer of the Department shall be construed to authorize the Secretary or any such officer to exercise any direction, supervision, or control over the curriculum, program of instruction, administration, or personnel of any educational institution, school, or school system… .[Section 3403(b)]

Nor is the NCLB particularly ambiguous:

‘Nothing in this title shall be construed to authorize an officer or employee of the Federal Government to mandate, direct, or control a State, local educational agency, or school’s specific instructional content, academic achievement standards and assessments, curriculum, or program of instruction. [Section 1905]

The Secretary’s conditional waivers from NCLB mandates, in return for dancing as he desires on national standards, seem to violate all of the above. I wonder if any education reporter will have the temerity to ask Arne Duncan on what grounds he believes he is entitled to ignore these laws? Senator Rubio’s letter certainly gives them a golden opportunity to do so.

Imposing National Standards

Next month, the Obama Administration will begin granting waivers to states that are not on track to meet proficiency requirements in the No Child Left Behind Act. Education Secretary Arne Duncan will be granting these waivers selectively, based mostly on states’ willingness to abide by new executive branch mandates not included in NCLB, likely including adopting national curriculum standards.

Duncan has the authority under NCLB to grant waivers, but not to compel states to jump through administration hoops in order to earn them, as Neal McCluskey has documented clearly.

As Neal notes in today’s Cato Daily Podcast, essentially imposing national standards – as well as other potential waiver demands – represents a large-scale assertion of federal executive power over local education:

We’ve broken any semblance of a Constitutional balance of power between the executive and the legislative branch. Now the President is just going to dictate to every school what they’re going to teach. And that is a giant threat to freedom and to the American education system.

A broader recognition that the Constitution grants neither Congress nor the President any role in education would go a long way toward fixing these problems. NCLB may be, to quote Arne Duncan, “a slow-motion train wreck,” but using that law to transfer power away from parents, states and Congress is easily a solution worse than the problem.

When Cops Go Commando, It’s No Laughing Matter

I received a response to my recent blog post on the Department of Education serving a warrant and dragging Kenneth Wright of Stockton, California from his home at six in the morning (incident added to the Raidmap, and here’s an updated link to the story). Here is the word from Department of Education Press Secretary Justin Hamilton:

“Yesterday, the Depart of Education’s office of inspector general executed a search warrant at Stockton California residence with the presence of local law enforcement authorities.

While it was reported in local media that the search was related to a defaulted student loan, that is incorrect. This is related to a criminal investigation. The Inspector General’s Office does not execute search warrants for late loan payments.

Because this is an ongoing criminal investigation, we can’t comment on the specifics of the case. We can say that the OIG’s office conducts about 30-35 search warrants a year on issues such as bribery, fraud, and embezzlement of federal student aid funds.

All further questions on this issue should be directed to the Department of Education’s Inspector General’s Office.”

This does not change my analysis one bit. The Department of Education doesn’t need a squad of “operators” busting down doors in white collar crime cases.

Search warrants issued pursuant to an investigation of bribery, fraud or embezzlement shouldn’t require door breaching at dawn unless there’s some exigent circumstances justification. Did the agents think that Kenneth Wright was going to resist the warrant service with deadly weapons, or destroy evidence? If so, say so. At least it would provide some evidence of surveillance prior to the raid or actual investigation. Investigation or surveillance might have revealed that the target of the warrant, Wright’s estranged wife, would not be home when agents came knocking.

Some gunbloggers wondered a while back about a federal website soliciting contracts to provide short-barreled shotguns for the Department of Education (H/T Uncle and Tam). Now we know what they’re intended for, and it’s incompatible with a free society.

Department of Education SWAT Raid for Unpaid Student Loans

Department of Education officers employed a SWAT team because of unpaid student loans. I am not making this up:

Kenneth Wright does not have a criminal record and he had no reason to believe a S.W.A.T team would be breaking down his door at 6 a.m. on Tuesday…

As it turned out, the person law enforcement was looking for was not there – Wright’s estranged wife.

“They put me in handcuffs in that hot patrol car for six hours, traumatizing my kids,” Wright said.

Wright said he later went to the mayor and Stockton Police Department, but the City of Stockton had nothing to do with Wright’s search warrant.

The U.S. Department of Education issued the search and called in the S.W.A.T for his wife’s defaulted student loans.

This, along with the Jose Guerena case, demonstrates how the militarization of police terminology and tactics is incompatible with a free society. Police officers aren’t “operators” like Green Berets or Navy SEALs.

This is just one more reason to abolish the Department of Education and oppose police militarization and federal overcriminalization.

Due Process Stops at the Campus Gates?

People in the D.C. area maye be familiar with the tragic tale of Fairfax teacher Sean Lanigan, who was falsely accused of sexual molestation, resulting in termination and a destroyed reputation.  As pointed out by friend of Cato and Cato Supreme Court Review contributor Hans Bader, however, the Department of Education is pushing a policy that would allow for more Sean Lanigans, even in cases not involving anything close to rape or molestation:

If the U.S. Department of Education’s Office for Civil Rights has its way, more teachers like him will end up being fired even if they are acquitted by a jury of any wrongdoing.  It sent a letter to school officials on April 4 ordering them to lower the burden of proof they use when determining whether students or staff are guilty of sexual harassment or sexual assault.   According to the Department of Education’s demands, schools must find people guilty if there is a mere 51% chance that they are guilty – a so-called preponderance of the evidence standard.   So if an accused is found not guilty under a higher burden of proof – like the “beyond a reasonable doubt” standard that applies in criminal cases – the accused will still be subject to disciplinary action under the lower burden of proof dictated by the Education Department.

As Wendy Kaminer explains, the DoE would also like to strip the accused of their right to cross-examination:

Campus investigations and hearings involving harassment or rape charges are notoriously devoid of concern for the rights of students accused; “kangaroo courts” are common, and OCR ‘s letter seems unlikely to remedy them. Students accused of harassment should not be allowed to confront (or directly question) their accusers, according to OCR, because cross-examination of a complainant “may be traumatic or intimidating.” (Again, elevating the feelings of a complainant over the rights of an alleged perpetrator, who may have been falsely accused, reflects a presumption of guilt.) Students may be represented by counsel in disciplinary proceedings, at the discretion of the school, but counsel is not required, even when students risk being found guilty of sexual assaults (felonies pursuant to state penal laws) under permissive standards of proof used in civil cases, standards mandated by OCR.

Now, it is undoubtedly extraordinarily difficult for a rape victim to face her attacker, but lowering the standards under which someone is judged for that crime and not allowing the accused to question his accuser opens the door to using accusation as a weapon, just as in Lanigan’s case or that of the Duke lacrosse team.  Justice (what lawyers call “due process”) demands, among other things, that both accuser and accused have their day in court, and that there be a presumption of innocence.  It is no more just for an innocent person to be smeared and forever tarnished — if not convicted and imprisoned – than it is to let a guilty man go free.  Indeed, as Blackstone famously said, “Better that ten guilty persons escape than that one innocent suffer.” 

What’s more, as Foundation for Individual Rights in Education president Greg Lukianoff details, it’s not just accused rapists whose rights are prejudiced under the new OCR policy, but those who make bad jokes:

California State University–Monterey policies state that sexual harassment “may range from sexual innuendoes made at inappropriate times, perhaps in the guise of humor, to coerced sexual relations.” UC Berkeley lists “humor and jokes about sex in general that make someone feel uncomfortable” as harassment. Alabama State University lists “behavior that causes discomfort, embarrassment or emotional distress” in its harassment codes. Iowa State University states that harassment “can range from unwelcome sexual flirtations and inappropriate put-downs of individual persons or classes of people to serious physical abuses such as sexual assault.”

This disconnect between basic principles of free speech and due process creates what Lukianoff calls “a perfect storm for rights violations”:

By making it clear that OCR would be aggressively pursuing harassment claims, by mandating extensive changes to many universities’ due process protections, but not requiring universities to adopt a uniform standard for harassment, OCR has supercharged the power of existing campus speech codes. OCR could have done our nation’s colleges a favor if it required universities to adopt a uniform definition of harassment in the same breath as it required them to aggressively police it.

FIRE has done heroic work in protecting student rights, so you should really read all of Lukianoff’s indictment of the new policy. 

The Department of Education needs to rescind/clarify this mess.  Speech is not a crime, but even the rights of those accused of crimes should not be subordinated to misplaced compassion or political correctness.

Senate Vote on Rand Paul’s Budget

Last week, a motion to proceed on a budget resolution introduced by Sen. Rand Paul (R-KY) was decisively defeated in the Senate (7 in favor, 90 opposed). Paul’s proposal would have balanced the budget in five years (fiscal year 2016) through spending cuts and no tax increases. Social Security and Medicare would not have been altered. Instead, the proposal merely instructed relevant congressional committees to enact reforms that would achieve “solvency” over a 75-year window.

That’s hardly radical.

Paul’s proposed spending cuts were certainly bold by Washington’s standards, but they weren’t radical either. For example, military spending would have been cut, in part, by reducing the government’s bootprint abroad. From the Paul proposal:

The ability to utilize our immense air and sea power, to be anywhere in the world in a relatively short amount of time, no longer justifies our expanded presence in the world. This budget would require the Department of Defense to begin realigning the over 750 confirmed military installations around the world. It would also require the countries that we assist to begin providing more funding to their own defense. European, Asian, and Middle Eastern countries have little incentive to increase their own military budgets, or take control of regional security, when the U.S. has consistently subsidized their protection.

Over 750 confirmed military installations around the world. That’s enough to make a Roman emperor blush. Isn’t continuing to go deeper into debt to subsidize the defense of rich allies the more “radical” position? (See these Cato essays for more on downsizing the Department of Defense.)

Other cuts included eliminating the Department of Housing & Urban Development, the Department of Energy, and most of the Department of Education. But unlike most Republicans, Paul didn’t apologize for the cuts or use the debt dilemma as a cop out. Instead, he explains in his plan why these federal activities are counterproductive and should be devolved to the states or left to the private sector.

It’s disappointing that Paul could only get seven Republicans and no Democrats to support his budget. For all the bluster about needing to cut spending, not raise taxes, and stop the Obama administration’s big government agenda, most Republican senators said “no dice” when given the chance to vote in favor of a plan that would accomplish all three objectives and balance the budget in five years.

Hazy-Eyed Hunter Prepares to Fire on For-Profits

Yesterday, the U.S. Department of Education sent proposed — and  highly controversial — “gainful employment” regulations to the Office of Management and Budget for review, the first step in the process of officially publishing them. The regulations — assuming they haven’t changed drastically from previous proposed versions — would limit the ability of students in vocational postsecondary programs to access federal financial aid if those programs produce debt burdens the regs deem too high, or salaries they deem too low. The exact details on what constitutes ”too high” and “too low” should be revealed soon.

The big problem with this is that it is aimed at easily abused for-profit schools while leaving the rest of waste-drenched higher education untouched. But another problem, the very real risk of bureaucratic bungling, also looms large. Indeed, a story out just today from California notes that the state greatly overestimated how much it would save by cutting Cal Grant eligibility for students at schools that showed up on a recent U.S. Department of Education list of institutions with high three-year loan default rates. The problem: The Education Department had accidentally calculated three-year-and-three-month rates, significantly overstating defaults. In fairness to the Department, it did say the list was unofficial, so California officials also bear a lot of the blame; but it sure doesn’t bode well that the Department would publish something so flawed.

There is a much more effective, and less dangerous, way to hold schools accountable than to have the federal government set blanket, hyper-politicized rules and try to enforce them. It is to have customers consume higher education using their own money rather than having Washington send tens-of-billions of inflation-fueling, extravagance-enabling dollars to students and schools every year. The problem is, that would just make it too hard to buy votes by falsely promising great education for all.

Monday Links

Tight on Standards, Loose Grip on Reality

As promised (actually, a week later than promised) I have read the Fordham Institute “Briefing Book” for reauthorizing the No Child Left Behind Act. As expected, it’s big on trumpeting national standards, and squishy on almost everything else. Perhaps most aggravating, though, is how loose it is in characterizing the views of those of us at the Cato Institute, who apparently are part of the big group of education analysts who love the idea of Washington lavishing money on education but are, presumably, too blinkered to want to get results for it:

 

The local controllers. These folks, led by conservative and libertarian think tanks such as the Heritage Foundation and the Cato Institute, want Uncle Sam, for the most part, to butt out of education policy—but to keep sending money. They see NCLB as an aberrant overreach, an unprecedented (and perhaps unconstitutional) foray into the states’ domain. Many within this faction also favor reform, particularly greater parental choice of schools, but at day’s end their federal policy position resembles that of the system defenders. They want to keep federal dollars flowing, albeit at a much more modest rate than those on the left; but they want to remove the accountability that currently accompanies these monies. They have given up on Uncle Sam as an agent for positive change, period. And they have enormous confidence that communities, states, and parents, unfettered from and unpestered by Washington, will do right by children.

Where, exactly, has someone from Cato written that Uncle Sam should keep dropping ducats on education? Certainly not here, where I call for complete elimination of federal involvement in education save civil rights enforcement, and a return of all federal education funds to taxpayers. You won’t find it here, where Chris Edwards calls for eliminating the U.S. Department of Education and zeroing out all its spending. And you won’t discover it here, where Andrew Coulson and I propose that “NCLB not be reauthorized and that the federal government return to its constitutional bounds by ending its involvement in elementary and secondary education.”

Sadly, reporting the truth doesn’t appear to be as important to Fordham as producing a strawman — some group that’s portrayed as totally irrational, allowing Fordham to show how ”realistic” they are by coming up with relatively reasonable sounding policy proposals. It’s a grating, superficial tactic employed by Fordham that Jay Greene and his gang have long harped on.

The funny thing is, in the end there isn’t anything particularly realistic about Fordham’s proposal. Basically, Fordham would have the federal government force all states to adopt the Common Core standards — while adding science and history standards — to get back money that came from their citizens to begin with, or adopt standards that some state-federal hybrid panel of “experts” deemed “just as rigorous as the Common Core.” This would somehow prevent “an unwarranted intrusion by the federal government in state matters.” Because, of course, it is much less intrusive to have an option of having some federally mandated Frankenstein’s panel tell you if the standards you came up with are as good as the federal standards, or just having the feds set one standard.

Then there’s Fordham’s accountability — er, “transparency” — proposal, which would force states to annually spit out “reams” of data on outcomes “sliced and diced in every way imaginable.” Once the tons of data confetti are dumped, Fordham would rely on public pressure from seeing the mess to force reform. And how would the public force said reform? Don’t worry about it — “realism” dictates that all we need are national curriculum standards, testing, and data, data, data!

So, sadly, Fordham’s “realism” fails where it always seems to fail: In ignoring actual reality. Thanks to the phenomenon of concentrated benefits and diffuse costs that is a basic part of representative government, the people who benefit most directly from specific government policies will be most heavily involved in the politics behind those policies, and will bend them to serve themselves, not the “public good.” In the case of education, the people employed by the schools — the teachers, administrators, bureaucrats, etc. — have the most power, and will gut anything used to hold them accountable, just as they have for decades. And there is nothing — nothing — in the Fordham proposal that will keep this from happening again, no matter how centralized the standards or humongous the data dumps. Indeed, centralized standards provide one-stop shopping for special interests!

Only one thing breaks the concentrated benefits, diffuse costs conundrum, and it is taking government out of the equation and forcing educators to earn the money of customers. But for Fordham and others who, ultimately, seem to want to dictate what every child must learn, that is a bit of realism much too far.

Burke v. Pelosi

Lindsey Burke of the Heritage Foundation has a good post today dissecting Rep. Nancy Pelosi’s recent press release on DC school vouchers.

If anything, Burke goes a little easy on Rep. Pelosi, comparing the maximum value of the vouchers  ($7,500) with the published figure for DC public school spending ($17,600). As it happens, the public school spending figures published by the Department of Education (and the Bureau of the Census) are always badly out of date. That means they don’t take into account the continuing trends of rising overall spending and falling enrollment in DC public schools (let alone inflation). When you break down the DC K-12 education budget for the 2008-2009 school year, as I did in this Excel spreadsheet, it comes out to just over $28,000 per pupil. It’s almost certainly higher today.

What’s more, the average voucher amount is closer to $7,000, so DC schools are underperforming the private voucher schools while spending four times as much per pupil.

Despite this, Rep. Pelosi, President Obama, Education Secretary Arne Duncan, and over 90% of Democrats in the House and Senate oppose the DC voucher program. It’s almost as if politicians care more about special interests and ideology than they do about kids and reality.

The Other For-Profit College Scandal

Because the evidence of wrongdoing and evasion is so clear, and the effect has been so damaging, I have devoted a lot of pixels to the GAO’s horrendous ”secret shopper” report on for-profit colleges, as well as the stonewalling about what caused the initial report to be so biased. A potentially even bigger story, though, is what appears to be the machinations of an unholy alliance of Department of Education officials, Senate HELP Committee chairman Tom Harkin (D-IA), and Wall Street short-sellers hoping to make big bucks off the demise of for-profit schools. This Daily Caller article, and the connected video of Senator Tom Coburn (R-OK), are good places to start learning more about this, as is the website of Citizens for Responsibility and Ethics in Washington.

The problems with understanding scandals like this, of course, are trying to get the truth about things that have gone on almost entirely in real or virtual back rooms; knowing what is legal and what isn’t; and just figuring out who’s who. Such scandals also reveal little about whether for-profit schools are actually more or less effective than other higher ed sectors, arguably the main public policy concern.

What this sort of thing does start to reveal, though, is just how far out of public view policy is often made, as well as how people try to profit directly from government action. In other words, it’s a great case study in public-choice theory, and just how un-Schoolhouse Rock Washington really is.

So I can’t tell you everything about who said what to whom. However, at the very least it is clear, for instance, that famed short seller Steve Eisman had a huge amount to gain by testifying that for-profits are bad and there is a “bubble” in proprietary higher ed about to burst. After all, were either the Education Department or Senator Harkin — or both — to use his testimony to attack for profits, as indeed they have, Eisman would have a highly profitable self-fulfilling prophecy on his hands.

No matter how you feel about for-profit colleges – and my feelings are decidedly mixed– learning about how policy is really made can be a very unsettling thing. In fact, it can make you feel more than just a little sick.

Random Assignment

The Brookings Institution released a new study today on charter schooling—assessing how well it’s working and what the federal government should do about it. One of the recommendations reads as follows:

Student participation in lotteries for admissions to any public [charter] school and the results of such lotteries should be a required student data element in state or district longitudinal data systems supported with federal funds.

Why? Because it would make it a lot easier to measure relative school quality, by permitting more widespread use of randomized, control group experiments. Experiments are certainly great from a researcher’s standpoint, but mandating that schools must admit students on a random basis has a catch:

an observer effect as subtle as an 80-foot fire-breathing robot. One of the reasons markets work is that exchanges are mutually voluntary, and producers and consumers don’t enter into an exchange unless each perceives it to be beneficial. If you eliminate the mutually voluntary character of an exchange in the process of trying to observe how beneficial it is to one of the parties, you’re affecting the very thing you’re trying to measure. It becomes more likely that you will have students assigned to schools that are not well equipped to serve their particular needs, injuring such students’ educational prospects.

Lottery admission to oversubscribed charter schools appeals to people’s desire for fairness, but a much better solution is to adopt a true market approach to education in which oversubscribed schools have not only the freedom but the incentives to expand as demand increases. For-profit enterprises, schools among them, do not generally ignore rising demand for their services. Kumon, the for-profit tutoring service, does not turn students away when it reaches capacity at a given location, it grows that location or opens a new one. As a result, it now serves about four million students in 42 countries.

Rather than figuring out how to ration good schools, why don’t we just unleash the market forces that will grow and replicate them?