Federal Dateline

Binding the Wounds of a Lame Duck

by Mary Kusler

Lame duck (n) an elected official or group continuing to hold political office during the period between the election and the inauguration of a successor

From the day after his election to a second term, the president shifts to a new focus. The inevitability of the end of a president’s term results in a declining lack of impact of the administration. Congress no longer listens. The public starts to speculate on the likely next president, while the current administration continues work on making itself relevant. Legacy building becomes the entire focal point of the administration.

This pattern of battling with lame duck status is true for all presidents including President Bush and his administration.

The Bush administration would like to make No Child Left Behind a centerpiece of its domestic legacy. In an ideal situation, the reauthorization of the Elementary and Secondary Education Act already would have been shepherded through Congress with few changes while maintaining its now ubiquitous name, prior to President Bush leaving office.

However, as time passed, it became clear there was little likelihood the bill would pass before the 2008 presidential election, and Congress showed a growing desire to make substantial changes to the law.

This left the U.S. Department of Education with little authority in its remaining days. There was less time for it to make an impact on the reauthorization discussions and it was not clear how much Congress was even listening. To Secretary Spellings and her department, something had to be done.

Forced Change
In an attempt to reclaim its relevance in the waning months, the U.S. Department of Education started issuing regulations to force, by default, the agency’s version of reauthorization into effect across the country.

Over just a few weeks during the late spring, the Department of Education issued proposed new interpretations of Title III, English language learner programs, new regulations for the Individuals with Disabilities Education Act and an expansive proposal for new regulations to NCLB. All of these proposals were highly prescriptive in nature and left little opportunity for educators to respond due to the timing of their release during the high school graduation season.

The proposed regulations for NCLB covered 136 pages of new rules and regulations that the department would prefer to see implemented during the 2008-09 school year. With final comments due on June 23, little time would be available for school districts to come into compliance with the expansive new rules.

The proposed regulations covered everything from mandating a national calculation of student graduation rates to requiring school districts to notify parents 14 days before the start of school about their child’s options for public school choice and supplemental services. The department wanted to require the latter measure even when states had not yet notified schools of their adequate yearly progress status.

The changes to NCLB also would lower the “n” size of a subgroup with little regard to the impact that one or two students could have on the performance of an entire group. In essence, this was the department’s attempt to remain relevant and get the reauthorization it wanted from Congress.

The Title III interpretations were not much better. Although the program is much smaller in nature, these changes to the way Title III would be interpreted went beyond the scope of the law by requiring schools to be accountable for the proficiency and academic achievement of all English language learners regardless of whether they were even being served by Title III. This represented a massive expansion of current law.

Watchful Eyes
Finally, the proposed regulations for educating children with disabilities contained several changes. The most notable was an adjustment in the manner in which money would be distributed from the state to local school districts. Under current law and regulations, local districts must be serving students with disabilities to receive funding under IDEA.

However, under the education department’s proposed regulations, states would be required to provide IDEA funding to all schools regardless of whether they educated children with disabilities. From the agency’s point of view, this measure would allow those schools to receive money to conduct child-find activities, but in the absence of significant new funding it would come at the expense of schools financially struggling to provide services for their disabled populations.

Once again, the Department of Education was legislating through regulations. Recognizing it will be several months into a new administration before a new secretary of education is named and a new department agenda is put in place, the current Department of Education realizes there is little likelihood for these rules to change in the short term. In the meantime, with four months left of this administration, keep a wary eye for these proposed regulations to be finalized and additional regulations to be released in an effort to secure President Bush’s legacy as the education president.

Mary Kusler is assistant director of government relations at AASA. E-mail: mkusler@aasa.org