Unconstitutional NCLB Waivers by Sen. Margaret Dayton
At last Friday’s state school board meeting, Senator Dayton presented the board with her thoughts on the problems of renewing the No Child Left Behind (NCLB) waiver. Senator Dayton led the charge against NCLB years ago when it first came out under the Bush administration. She emailed me and mentioned that there was a difference between waivers back then and now and I asked her to explain it so I could share it with everyone. Here’s what you need to know from Senator Dayton.
When the No Child Left Behind law was passed by the U.S. Congress in 2001, it included 1100 pages of rules and regulations and requirements – and many additional pages of instructions on how to implement same. Many of these regulations were conflicting with other regulations in the same law – and in conflict with other federal education laws. Certainly most were in were conflict with multitudinous state regulations. All of NCLB is in violation of the Constitution of the United States – (think 10th amendment) and in violation of all the Constitutions of the individual states which include responsibilities and requirements for the individual states to educate their own citizenry.
Utah led the way in resisting the implementation of NCLB – and eventually all 50 states were in some form of resistance to that federal law. Some states had Opt Out legislation patterned after Utah, some were suing the federal govt for imposing an unfunded mandate, and some just refused to implement NCLB. In an effort to placate the individual states, the U.S. Dept of Education started issuing waivers to individual states. These waivers were a type of ‘permission slip’ to ignore certain NCLB requirements. The waivers were issued in response to various state resistance to compliance – and were issued in an arbitrary and capricious manner – with no template of explanation of why some states were granted certain waivers or exemptions, and other states were not.
Thus – the original waiver requests that were granted just excused certain states from portions of NCLB compliance.
In response, the Utah Legislature unanimously passed HB 135 (Implementation of Federal Programs/Dayton) in 2005. The bill had the support of our Congressmen, the State Board, UEA, PTA, and many, many parent groups. HB 135 requires the Utah State Board of Education to request all possible waivers and allowed the parents and educators to decide which state and federal laws would be followed. Often quoted by those of us resisting the federalization of education was section is Section 9527 in NCLB which states:
“Nothing in this Act shall be construed to authorize an office or employee of the Federal Government to mandate, direct, or control a State local educational agency, or school’s curriculum, program of instruction or allocation of state of local resources or mandate a state or any subdivision thereof to spend any funds or incur any costs not paid for under this Act.”
(note how this portion of NCLB negates – and is in conflict with – the rest of NCLB – and thus HB135 gives Utah authority over the education of the state!)
The term waiver has changed over the years since that original plan. A waiver no longer means a pass or exemption from compliance.
When the current federal administration decided to offer incentives to certain states (and pick winners and losers) for additional education funding under the Race to the Top program, there was an offer to have waivers from certain NCLB obligations but only in exchange for other Race to the Top obligations. Thus the term waiver morphed from being an exemption – to a trade. Waiver no longer meant the states were excused from NCLB requirements – it now meant that certain obligations under one federal program could be traded for another set of federal programs.
At last Friday’s State School Board meeting, it was my hope to help the board members understand this option that was available to them. They had before them the opportunity to vote for Common Core Option A – or Common Core Option B – by requesting a waiver to do one or the other. They also had the opportunity to ask for no waiver. Many concerned and well informed parents pleaded with the board to ask for no waiver – their requests were to keep the control of education in the state of Utah. The Board was comfortable, however, asking for a waiver of their own creation – an option C that they wrote. By asking for a waiver of any kind, the board continues to participate in ‘mother-may-I’ with the unConstitutional Dept of Education. By requesting a waiver, the Board acknowledges the federal government can grant, or not grant, educational authority – thus further empowering the U.S. Dept of Education.
I do not understand the lack of ‘no’ votes from the Board. With appreciation for their willingness to serve, I do not pretend to speak for the board members – but I do not understand the unanimous vote. In spite of my disagreeing with them, I would still prefer to work with Utah State Board rather than the U.S. Dept of Education in matters affecting our children. The government did not create the privileges and powers of parenting; those are gifts of Providence and should not be ceded to the U. S. Dept. of Education.