Race to the Top has unwittingly stifled bold education reform. It has severely slowed the pace of meaningful improvement of America’s government-owned education monopoly.

History will look back on the effort and conclude it was a colossal expenditure of public funds with little if anything to show in the way of legitimate school improvement. Enthusiasts for the program will indignantly attempt proving otherwise, but in every case they will be forced to ignore the central factor of their faulty calculus – opportunity costs.

Instead of harnessing the innovative instincts of fifty independent and competing states as the Constitution dictates in the case of public education, Race to the Top forces an unorthodox nationalized approach.

Race to the Top is inconsistent with America’s tradition of high-quality, local, public education. Its aim is more consistent with the German model of public education – wherein citizens are trained to fulfill the needs of the government rather than the other way around. The former is consistent with a democracy. The latter is emblematic of a republic – which, in case anyone in Washington, D.C., doesn’t know, is what the United States of America still is.

The administration’s latest attempt to tie NCLB waivers to Race-to-the-Top compliance is just another nail in the coffin of republican government. Senator Marco Rubio (R-FL) has it right in his recent letter to Secretary Arne Duncan.

Senator Rubio writes, “This initiative is an overstep of authority that undermines exiting law, and violates the constitutional separation of powers. The responsibility for legislating lies with Congress, and forcing policy reforms through NCLB waivers violates this most basic of constitutional structures.”

Regardless of one’s political party, Members of Congress should be strident in defending the proper balance of federal power as Rubio suggests. Simultaneously, Members of Congress should restore the proper constitutional balance of power between the federal government and the states.

Until constitutional balance is reset, states walk a precarious line between two competing evils: Do they apply for waivers from one German-style initiative (NCLB) by agreeing to comply with another (Race to the Top)?

Rubio’s other contention is also correct; the executive branch of the federal government has no authority to force compliance with its NCLB-waiver-RTtT strategy. Still, what state wouldn’t and shouldn’t want to escape the punitive fists of NCLB in favor of something closer to their own approach?

It’s one ugly proposition versus another in this Obama-inspired dilemma. It’s certainly not an example of leadership.

States should follow their instincts toward constitutional autonomy. You can’t blame any of them for wanting waivers. You can’t blame states for wanting more freedom.

You can, however, blame everyone in Washington who persists in trying to build a centrally planned, nationalized, unionized, public-school bureaucracy in the image of Germany’s. What’s wrong with letting our students learn like Americans?

In government halls, it’s a worthwhile debate to have and a worthwhile fight to fight. Unfortunately, children don’t stop growing and maturing while politicians make floor speeches on these topics.

In the meantime, states need to do whatever it takes to educate their students with what they have. Those of us in the trenches need to do whatever it takes to give our students the best education they can get right now.

American students deserve the liberty to learn from states that enjoy the freedom to teach.

The seeds of the demise of No Child Left Behind were sown into its original design, its premise that all states would bring all students up to a high standard of performance by the date specified in the original legislation.

The lawmakers who wrote it knew that was not going to happen, knew that their successors would have to pick up the pieces. And the state policymakers responsible for putting implementation plans in place responded to this little flaw in the legislation by lowering the standards they would have to meet as much as possible and extending the date by which serious progress toward the state goals would have to be shown to a time when it would be someone else’s problem.

But politics is the art of the possible and both Democrats and Republicans saw George W. Bush’s plan as a rare opportunity to get out of a deep hole. No Child Left Behind is a set of amendments to the Elementary and Secondary Education Act (ESEA) of 1965. ESEA was framed under the umbrella of the civil rights movement, made possible by a national consensus on the need to “compensate” for the deficiencies that minority and low-income students brought to school. The purpose of the legislation was to provide the resources that would enable educators to remediate those problems. The performance problem was understood to be caused by the characteristics of the students, not their schools or their teachers. And it would be solved by giving schools and teachers the money to deal with it. The federal government had to do it, because the states had demonstrated that they could not or would not do it.

Three decades later, the Congress realized that it had provided billions to the schools, but student performance had hardly budged, and Congress was angry by consensus. It appeared to many in both parties that the professional educators had taken the money and run, with considerable benefit to them, but little to the students. President Bush proposed to change that, to hold the educators responsible for their work, for the first time to hold out the possibility that educators who did not produce for their students might lose their jobs. Democrats were willing to include the market solutions favored by the Republicans under the tent and Republicans were willing to put more money on the table (quite a lot, though not as much as Democrats had expected), as long as both got the accountability for the use of the funds they both sought. Thus was the deal made.

That consensus has now evaporated, for the same reason the earlier consensus evaporated: More money was spent and little student progress has been made. The Republicans say that is because the Democrats are trying to dictate educational strategy to the states and the Democrats say it is because the states, left to their own devices, once again took the easy way out and defeated the purpose of the law and need to have their feet held to the fire to adopt strategies that will work. So, once again, we have a fundamental disagreement about not only what the solution is, but what the problem is that the legislation should be solving.

If we look at the countries with the best student achievement as measured by PISA, we see at first no guidance on the question of which level of governance should be calling the shots. Some have highly centralized education governance at the national level. Some have federal systems with even less involvement of the national government than we have. Some have mixed models. All have successful systems.

But look closer and there is a lesson to be learned here. In all the countries with the best education performance, all the parts and pieces fit together. All the elements of the education system—finance; standards for entering teachers college, for graduating teachers college, for getting a license; student performance standards; the design of the curriculum; the approach to instruction; and so on all fit together into a reasonably harmonious whole. That’s because these countries have sorted out their systems so that either one level of government is responsible for the performance of the system as a whole or no more than two levels of government share that responsibility and there is a strong consensus on what their respective roles will be.

We have no such consensus in the United States. We are not agreed on who should be setting the standards for student performance, who should be deciding what the curriculum will be, who should decide what teachers colleges will teach and what the standards should be for deciding who gets to go to a teachers college, who will decide what teachers will be paid, who will decide on the content of our textbooks, who will decide what the character of our tests and examinations for students will be and how the information produced by those tests and examinations will be used. Responsibility for these decisions is diffused through the whole system. More of those decisions are made at the local level than in any of the top-performing countries. The inevitable result is that we do not have a system of which the parts and pieces fit together.

Some years ago, when the first PISA results came out, the Germans were shocked to find that the performance of their students relative to that of students in other advanced industrial countries was far below what they expected. Under the German constitution, elementary and secondary education is a function of the German states exclusively. But when the PISA results came out, the German states, with the encouragement of the federal government, took the initiative to create national examinations and curriculum frameworks, and to arrange for the publication of the results of the examinations comparing student performance across the states on common measures. It was the beginning of a process in which the Germans sorted out in a logical way what functions needed to be performed nationally and which were best performed at the state level. There is nothing comparable in the German system or any of the top performing systems to our local level of governance. These changes to the German system led to major improvement in the relative position of Germany on subsequent PISA league tables.

Our states have all the constitutional authority they need to create systems of education as effective as those of any country with which we compete. But their state departments of education do not have either the legitimacy or the legal authority they need to play a role comparable to that played by the ministries of education in the top performing countries at the national or state level. Until they do, we will not get comparable results. The United States Department of Education does not have such authority or legitimacy either. Few wish it did, but, as the German experience shows, it may be necessary to provide for certain national functions, whether performed by the federal government or federations of state governments, if the United States is going to compete effectively.

We have to sort out this governance problem, but we are not even talking about it yet in terms that could lead to a solution. It is time for that conversation to begin.

The administration calls this plan “ESEA Flexibility.” When a prisoner is moved from one cramped, contorted position into a different cramped, contorted position, “flexibility” does not seem to me like a good description of the situation.

More specifically, the administration is right in two ways and wrong in two ways. First, what they got right:

1. NCLB was up for reauthorization in 2007. For over four years, Congress has failed to act. Frustration with congressional inaction is justified, and unilateral action is also justified.

2. The ratcheting up of AYP proficiency thresholds and accompanying sanctions had gotten to the ridiculous stage, as anyone paying attention in 2001 could have predicted. The administration is right in offering waivers from those sanctions.

But the two things the administration got wrong have undermined these positives.

1. While probably legal, it harms the democracy to have the administration unilaterally creating replacement policies through the attachment of such an overwhelming set of conditions to the waivers. The coercive force behind Race to the Top was the offer of money; the coercive force here is the denial of a waiver of sanctions that all acknowledge are unreasonable and destructive. The coercion should be removed and the waivers should be granted simply because they’re necessary.

2. The policy provisions being forced on the states by the administration are themselves not research based. Just yesterday, the president told a fundraising audience that Americans should support him if they believe in a "fact-based" America. The administration has repeated stated the importance of research-based policies. But there is little or no high-quality research to support the policies that states must now adopt because the administration has apparently decided that those policies are the most indispensible changes that can be made for America’s schools.

To be eligible for a waiver, a state must adopt “student growth” measures and it must use those growth measures as a “significant factor” in teacher and principal evaluation. The administration may take comfort in the fact that they are not expressly demanding evaluations based on student test scores and are not defining “significant”, but they certainly know that this policy will lead to an escalation in the use of invalid, unreliable test-score-growth (VAM) based evaluation systems like those in New York and Colorado. And they know that this will result in a continuation of the NCLB-related problems we’ve been seeing for the last decade: The inordinate focus on basic math and reading skills, pushing aside science and social studies, as well as the structured lessons designed to prepare students to take high-stakes tests, pushing aside the interesting, real-world projects that students really engage with.

The administration is also pushing, through its waiver policy, the same non-research-based SIG turnaround strategies that have never held up to scrutiny (see pp. 9-10 of the department’s Flexibility document).

Ideally (and naively), I would hope that states push back on the conditional part of the conditional waivers. I would hope that states would call the administration’s bluff by offering the administration unsolicited, alternative school improvement policies based on high-quality research—policies that move away from the failed status quo of testing and governance churn.

Rather than offer “relief,” the Administration is pushing states to require vastly more testing, and to use the tests to hold teachers and principals instead of schools accountable. States should refuse this bad deal. They should tell Washington they will label no more schools failing on the basis of test scores – just say “No” – and declare they will not implement the Administration’s ill-conceived and dangerous ideas.

Last week, I criticized the Republican Senators’ ESEA bills for maintaining NCLB’s failed basic structure, test-based schooling. The Senators’ proposals, however, are far superior to the looming disaster that is the Administration’s “flexibility” plan. Indeed, while NCLB is the worst piece of education legislation ever, the administration’s scheme could cause even more damage.

Consider the following problems (among many):

States will have to implement tougher tests. They are unlikely to much better as they willremain mostly multiple-choice and short answer and will have the same narrowing effects on teaching and learning, though in most states they will be harder to pass. The pretense is that this will make students “college and career ready.”

The waivers require states to adopt “student growth” measures and make them a “significant factor” in teacher and principal evaluation. This will push states to adopt statistical techniques that evidence shows are grossly inaccurate for distinguishing strong teachers from weaker ones. It will put even more focus on boosting test scores instead of ensuring the all-around education of the whole child.

For subjects in which a state does not have tests, districts will have to produce “measures that are comparable” within the district. “Growth” measures will require a change “between two points in time,” so testing twice a year becomes more likely. This component of the waivers could push districts to make or purchase dozens of new tests, at great expense and likely great damage to currently untested subjects. Highly regarded teacher evaluation systems such as Montgomery Country, MD, do not use state test data – though the state, under Race to the Top, will now undermine a good system to enforce a test-based plan.

Educator evaluation systems will be expensive if done well, but the federal government is providing no funds. There is no evidence that spending money in this way is a better use of resources than are other, evidence-based efforts to improve schools. Moreover, if districts spend large sums on tests, will there be any funding left to pay for the far more useful endeavor of teachers coming together to evaluate their practice, look at real student classroom work, and help each other improve? Once again, imposing tests will substitute for real educational improvement.

Republicans are charging the Administration with, in effect, writing legislation rather than regulations. Unless Congress gets its act together soon to create a new Elementary and Secondary Education Act to replace the disastrous NCLB, the facts on the ground will become as the Obama-Duncan administration wants: vastly more tests, replacing school accountability with individual educator accountability, and the effective continuation of the test-based schooling principles that undergird NCLB.

What Congress should do is pass a new law, in line with the recommendations of the Forum on Educational Accountability, that:

- significantly reduces the amount of mandated testing;

- helps states design fundamentally different assessment systems;

- focuses on evidence-based school improvement efforts; and

- provides the resources needed so that every child has a strong and equitable opportunity to acquire knowledge, skills and dispositions to be an effective, engaged citizen.

In the meantime, states should ignore the waiver offer and do what reality is already dictating: ignore the requirement to label more and more schools as failures.

The real problem that still has not been unaddressed is what to do to assist the many schools that require significant assistance. Civil rights groups correctly point out that many more schools need help than just the 15% the Administration expects states to focus on. Much of what they really need requires an increase in funding. But no additional money will be provided. Other assistance can come from educators schools working together within and across schools to build cultures of mutual professional learning. That is what states should promote, not the recycling of failed schemes by the Obama-Duncan Administration.

The Council of the Great City Schools, the nation’s primary coalition of large urban school districts, announced its support for President Obama’s proposal to waive various provisions of the federal No Child Left Behind program in exchange for an array of school reforms.

The proposal would provide greater flexibility over local use of funds otherwise reserved for supplemental services that have proven ineffective over the years and mandated for professional development if states proceed with adopting higher academic standards, turning around chronically low-performing schools, and tying personnel evaluations to student achievement to a greater degree. The proposal would also redefine NCLB’s accountability provisions and sanctions.

“We wish the reauthorization process had moved through the regular legislative process,” said Michael Casserly, executive director of the Council, “but the climate on Capitol Hill has made that unattainable in a timely fashion. In the meantime, the law needs to be revamped. We applaud President Obama and Secretary Duncan for moving forward.”

At the same time the Council lends the new initiative its support, the organization also calls on states to refrain from substituting their regulations and mandates for those the federal government is setting aside. Doing otherwise would undercut the Administration’s laudable aim to provide greater flexibility to local educators and would undermine the pursuit of reform and improvement of the nation’s major urban school districts.

The Council urges the states to apply for these new waivers and work with their city school systems on those applications. If the states are reluctant to proceed, urban districts should initiate their own applications.

The Obama administration’s new waiver plan doesn’t officially repeal the No Child Left Behind Act, but it is tantamount to making large-scale amendments to it. Which it does unilaterally, without even a thumbs-up from Congress.

Though the specific conditions that the White House and Secretary Duncan are attaching to statewide “flexibility waivers” are consistent with the administration’s long-standing "blueprint" for reauthorizing NCLB, and also happen to be conditions that I think generally have merit, they do amount to changing the law, not just waiving it. This raises constitutional as well as statutory issues — though the administration’s response, not surprisingly or implausibly, is that “if a do-nothing Congress won’t act to solve problems, we’ll solve them ourselves as best we can.”

Yet the changes themselves — at least their timing and high-profile release — are motivated at least as much by election-year political considerations as by policy. This is not the first example, and surely won’t be the last, of appealing to key constituencies by undoing, suspending, or waiving government practices that they find onerous and unpleasant. Consider the non-deportation of illegal aliens who haven't committed crimes; Hispanic (and other immigrant) voters will surely applaud this move and likely thank the administration in November 2012.

Friday's waiver announcements mean that teachers and parents (and school board members, administators, etc.) will also breathe a sigh of relief at the suggestion that the president and his education secretary are taking the heavy hand of unrealistic achievement targets, embarrassing school labels, and unwanted accountability burdens off their frail necks.

And they’ll be partly right, for the promised waivers, once issued, really do ease the most painful parts of NCLB — provisions that analysts and critics have pointed to for a very long time as needing revision.

But they’ll be only partly right. For the administration is also imposing its own preconditions on states for waiver eligibility. Three in particular, all of which are wrenching and controversial in their own right, and at least one of which could result in an election-year firestorm:

● Teachers and principals will be concerned about the obligation of states to develop evaluation systems for them that incorporate measures of student progress.

● A variety of groups will be upset over the plan to impose “rigorous interventions to turn schools around” only on a small number of really low-performing schools and let merely-mediocre schools escape the turnaround lash.

● The greatest potential for political controversy, however, is the requirement that states seeking waivers “have already adopted college- and career-ready standards” in math and English language arts, which is preceded (in the White House document) by reference to the Common Core State Standards Initiative. This will surely be viewed by Common Core skeptics as entangling Title I with that heretofore state-driven initiative and creating new federal incentives for states to embrace its “national” standards. I happen to think the Common Core standards are generally worth embracing, but I also understand that much of what’s good about them is their separateness from Uncle Sam. That distance is now disappearing.

One who might notice is the governor of Texas, who detests everything about the Common Core and has kept his state out of it — and who just happens to be Barack Obama’s likeliest opponent in the 2012 election.

The success or failure of the Administration's plan depends entirely on the extent to which it can overcome three very serious challenges:

1) whether the deals the Administration makes with the states retain at least the current pinch of accountability,

2) whether the reform action the Administration leverages in these deals penetrates to the classroom, endures, and improves student achievement, and

3) whether the play can survive opposition from the Congress, whose authority does not back it, and perhaps the next President.

I'm pessimistic about the prospects for success on any of these three challenges, much less all three. But, we can hope.