Harkin-Enzi No Child Left Behind Bill Faces Uncertain Future

Education Law Passage Contingent On Outside Political Forces

Though getting a sweeping federal education bill out of a Senate committee feels momentous given Congress's heightened partisan atmosphere, Senators Tom Harkin's (D-Iowa) and Mike Enzi's (R-Wyo.) measure faces a rocky road.

Their bill would reauthorize the 1965 Elementary and Secondary Education Act, which became known as No Child Left Behind during its last overhaul a decade ago. A product of compromise, the new bill rolls back the federal government's role in school accountability, enshrines the Obama administration's Race to the Top competition and does not mandate rigorous teacher evaluations.

Harkin and Enzi's bill passed through the Senate Health, Labor, Education, & Pensions Committee one week ago today, garnering three Republican votes.

NCLB has been up for a rewrite since 2007, amid cries from governors and teachers that the law is punitive and labels a large swath of schools as "failing" based on arbitrary benchmarks. NCLB required regular testing of public school students in English and math and the analysis and dissemination of that testing data, and imposed increasing sanctions on schools that didn't make performance benchmarks known as "Adequate Yearly Progress." The law set targets for about 100-percent student proficiency on math and reading tests in 2014, leading to states' concerns over having to sanction the majority of their schools.

In a speech last year, Obama asked that Congress move forward with reauthorizing the law by the start of this school year. When that didn't happen, he and U.S. Secretary of Education Arne Duncan essentially rewrote it on their own by releasing a waiver package that allows states that adapt the administration's reforms to opt out of the law's most cumbersome requirements. After the waiver package was released, ESEA bills proliferated in the House and Senate, cresting with the release of the Harkin-Enzi bill, the first comprehensive rewrite since the law's expiration.

But critics, such as data-driven education-reform groups and civil-rights groups, have said that Harkin has watered down the bill so much in the name of bipartisanship that it would be better to go back to the drawing board and forgo the small window of opportunity this rewrite has of reaching the President's desk.

After the bill's passage through committee, the next step would be Senate floor discussion. But with the hubbub of the super committee's activities and Obama's emphasis on the jobs plan, there are no guarantees the bill will get time on the floor.

"ESEA has been up for reauthorization since 2007 and Senator Reid commends Senators Harkin, Enzi, and others who have worked hard to get a bill through the HELP Committee," Adam Jentleson, Senate Majority Leader Harry Reid's (D-Nev.) chief spokesman, said Thursday. "He was pleased to see the bill garner strong bipartisan support. The top priority for Senate Democrats is creating jobs and getting our economy moving again, but Senator Reid is committed to working with Senators Harkin and Enzi to help move this reauthorization forward."

Besides, the Obama administration's waiver package set up an incentive structure that simultaneously pushed Congress forward while also making an overhaul less urgent for states crying out for relief.

"Chairman Harkin and Ranking Member Enzi had already been working on their draft for almost a year, and were always committed to bringing a bill before the Committee," Harkin spokeswoman Justine Sessions said, "but clearly the announcement of the Administration's waivers proposal reminded a number of other Members of the urgency of this issue for our nation's children."

The combination of the waiver package with Obama's other recently-announced executive orders has convinced Jack Jennings, a former hill staffer who leads the Center on Education Policy, that Obama is running against Congress.

"He's doing NCLB waivers; he's changing mortgage rates through executive action; and he's changing student loans," Jennings said. "The next step will be a new state accountability system through waivers, but you won't know its effects even by the end of the presidential campaign."

Even if the bill does make it to the Senate floor, it would likely change enormously. In order to bring the bill through committee, Harkin cut a deal with Republican senators and teachers' unions that removed a provision mandating teacher evaluations in every school. The move lost the bill support from education-reform groups and earned the measure criticism from U.S. Secretary of Education Arne Duncan. That kind of dilution for the sake of getting Republicans on board would only increase on the Senate floor, said Alexander Russo, an education blogger and former Democratic hill staffer.

"What Harkin had to do in order to get a bill that could have any hope of getting through markup, Harkin and the leadership staff will have to do something similar to get the next step," Russo said. "At what point do Democrats start saying, 'I'd rather do the waivers or nothing than get a new bill?' I didn't get any indication that the Democrats on the committee were ready to walk, but at some point they might feel pressure from the left to say no bill is better than this bill."

Charles Barone, who heads federal policy for Democrats for Education Reform, agreed.

"The more people look at this, the more they realize Tom Harkin gave up to pass this bill out of committee," Barone said.

After a successful floor vote, Harkin would likely have to hold a conference committee to reconcile the bill with the House -- whose ranking education leader Rep. John Kline (R-Minn.) has said he is committed to reauthorizing NCLB in a piecemeal fashion. So far, Kline, who chairs the House Committee on Education & the Workforce, and Rep. George Miller (D-Calif.) have kept mum on the merits of the Harkin-Enzi bill, despite Harkin's saying that he hoped the bill would "instruct" the House. The House has passed a bill on charter school oversight, and Kline has also put forward bills that increase funding flexibility and slash half of all federal education programs.

Up next from Kline are bills that deal with school accountability and teacher quality, said education committee press secretary Jennifer Allen.

"Chairman Kline and his committee colleagues on both sides of the aisle are currently working to develop legislation that addresses accountability and teacher quality issues, which will round out the full package of House education reforms," Allen said. "We hope this final legislation will be considered by the committee in the coming weeks."

Aside from the general belief that a law as sweeping as NCLB is unlikely to be passed after the end of 2011 -- during an election year -- no one has a good sense of the timeline.

"You have pressures from teachers and states to move and a feeling that Congress and not the Education Secretary should be rewriting the law," Jennings said. "But there are countercurrents, with civil-rights groups disparaging the law and Republicans being so conservative. And then, you have the clock ticking away."

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