Take the Substance, Leave the Tentherism

To expand on the arguments made by Erik and a couple commenters, I had a schizophrenic reaction to Diane Ravitch’s essay on Arne Duncan. I’m inclined to think that her harsh critiques of the Obama administration’s education policies are right. What I don’t understand is why she decided to partially advance this persuasive critique using a bad legal argument and an actively dangerous argument about federalism.

First, Ravitch gives Duncan an “F” on whether he has “followed the law,” but I’m afraid it’s Ravitch who fails to understand how the contemporary administrative state actually works. Duncan is violating the rule of law, Ravitch asserts, because “Duncan has issued waivers to states that want to be relieved from NCLB’s impossible mandate of reaching 100 percent proficiency by 2014.” This violates Ravitch’s bad-junior-high-civics-textbook understanding of how the federal government should operarate: “cabinet members are not allowed to change the laws.”

But, of course, Duncan is not violating the law. Part D of NCLB explicitly authorizes the Secretary of Education to issue waivers, and placing conditions on such waivers is well within the authority of the Secretary. The extreme form of nondelegation Ravitch is applying here is almost comically anachronistic and unworkable; I would invite her to take a quick stroll through the Code of Federal Regulations. The executive branch makes policy in all kinds of ways that don’t usurp congressional lawmaking prerogatives. Ravitch may well be right that the waivers constitute bad policy, but she’s obviously wrong in arguing that they’re illegal, and she undermines her better arguments by doing so.

This mistake isn’t that big a deal in the broad scheme of things, since even under the current federal judiciary I’m not worried about the entire modern regulatory state being ruled unconstitutional. Given the current political circumstances, even worse is the bad argument with which she inexplicably decides to start her article. Duncan, she begins, gets an “F” in states’ rights:

No. Duncan has expanded the role of the federal government in unprecedented ways. He seems not to know that education is the responsibility of state and local governments, as defined by the Tenth amendment to our Constitution.

And Ravitch seems not to know (or, more likely, is pretending not to know because she’d like to give Duncan “Fs” in an artificially wide variety of categories), it’s well-established that if the federal government provides funding to states it can attach conditions to that spending. Any state can that doesn’t want to adhere to the federal standards doesn’t have to take the money. To all but the most extreme libertarian Ravitch’s argument proves too much. “President Johnson seems not to know that health care is the responsibility of state and local governments, as defined by the Tenth amendment to our Constitution. Medicare and Medicaid are violations of the precious autonomy of the states and their sacred power to allow the poor to die of treatable illnesses.” Either both of these arguments are right, or they’re both wrong and we should actually talk about the merits rather than bringing up constitutional arguments I would like to think had been permanently discredited decades ago.

And this kind of argument is particularly dangerous in the context of education, where a (usually selective and opportunistic) fetish for “local control” has been crucial to the resegregation of America’s schools. (For that matter, using Ravitch’s logic the use of the federal spending power to advance nondiscrimination violates the Tenth Amendment just as NCLB does, and must have been illegitimate when first used because it was “unprecedented.” Should the relevant sections of civil rights law be repealed?)

To reiterate, Ravitch’s substantive critiques of the Obama administration’s education policy are powerful and persuasive. The trend towards high-stakes standardized tests as a magic bullet is terrible policy. I just wish Ravitch would make the substantive case, rather than undermining it with procedural arguments that are clearly wrong and/or come from the school of Ron Paul. At a time when conservatives are using specious arguments about federalism to try to reverse the most important progressive legislation passed by Congress in several decades, to argue with the problem with bad federal education policy is that it’s federal rather than that it’s bad is to play into the hands of the most reactionary forces in American politics.