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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.

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  • John

    Yeah, this was pretty much what I took away from the piece, too.

    • Luis

      This was exactly what I got out of this piece, and I don’t even have a GED in Law! Thanks for putting this into words for me.

  • snarkout

    Well said.

  • joe from Lowell

    Many people adopt and discard process arguments based purely on their momentary convenience for advancing their substantive policy positions. In this sense, Ravitch suddenly deciding that the Department of Education can’t issue regulations that weren’t copied from the text of legislation, despite Congress having granted the executive discretionary power, is no different from anti-environmentalists arguing that the EPA shouldn’t be classifying any new substances as pollutants if Congress didn’t include specific language about the specific substance in a Clean Air Act amendment.

    Arguments that involve accusing your opponent’s position of violating the law, the constitution, or international law also have the “virtue” of relieving you of the burden of making a substantive case for your position on the merits. Sorry, pal, you have to do it my way or you’re a criminal, perhaps even a war criminal…Still here, huh? I can’t believe you continue to argue that it’s ok to violate the law.

    • In this case, there’s also a rather amusing rhetorical pretzel Ravitch paints herself into with what I assume to be her desire to grab anything she can think of with which to slam Duncan: she ultimately winds up arguing that Duncan gets an “F” for violating a law she just argued Congress doesn’t have the authority to pass anyway.

      • joe from Lowell

        You’ve got to hand it to Ravitch: there is nothing standardized about her assessment.

      • dave

        Not to mention that Ravitch initially supported NCLB and obviously didn’t concern herself with its constitutionality at the time she was advocator its enactment.

    • Scott Lemieux

      The EPA analogy is precisely accurate.

      Another variation of this form of bad argument is the “the Fifth Amendment does not contain the Miranda warnings” argument. Because, of course, it’s completely possible to apply general principles to specific cases without any further specification.

      • joe from Lowell

        The EPA analogy is precisely accurate.

        Also accurate, and for the same reason: it is bogus to argue that going to war based on an AUMF violates the Constitution.

        • Murc

          Er, how so?

          It would be bogus to argue that going to war based on an AUMF violates current understanding of constitutional law, yes. So what? Before the civil rights era it was understood that Jim Crow laws didn’t violate the constitution. That didn’t stop making the argument that, no, it did, in fact, violate the constitution. An argument they won!

          (I’m someone who thinks that going to war without an explicit war declaration is both bad policy and, if its not understood to be unconstitutional, SHOULD be made to be understood to be unconstitutional.)

          • joe from Lowell

            Er, how so?

            Because both an AUMF and the Clean Air Act are laws passed by Congress in which Congress delegates some of its power to the executive branch.

            • Scott Lemieux

              Right. I don’t think there’s any constitutional issue with using force after explicit authorization. Doing it without congressional approval is another matter.

              • joe from Lowell

                And none of this is to say that AUMFs instead of war declarations are a good idea, just not violations of the constitution.

    • Murc

      Many people adopt and discard process arguments based purely on their momentary convenience for advancing their substantive policy positions.

      As a corollary to this (and because its something I believe too few people are aware of consciously) a lot of people seem to instinctively prefer to illegitimize their opponents rather than try to argue that they’re simply wrong.

      If something is unconstitutional, or illegal, you can’t even discuss implementing it; you’ve placed it beyond the pale. If its just WRONG, then you have to have a policy discussion about, which is a much weaker option and implicitly conceded your opponents are within the bounds of civilized debate.

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  • calling all toasters

    “I had a schizophrenic reaction to Diane Ravitch’s essay on Arne Duncan.”

    You hallucinated that it was talking to you? It made you freeze in an unusual posture for a long time? It caused your brain to suddenly shrink?


    • joe from Lowell

      It made him think that the libertarians were out to get him.

    • Njorl

      I suppose he could have said, “I had a moment of induced dissociative identity disorder in reaction to…”

  • david mizner

    She’s made the “substantive” case elsewhere, repeatedly. It’s always a little annoying when a convert overshadows people who’ve been right all along.

    In other news, the President’s campaign film is being made by anti-public school propagandist Davis Guggenheim, who apparently believes the President is perfect.


    • I knew I was going to regret clicking on that link. You owe me thirty seconds of my life back now.

      • Incontinentia Buttocks

        Greenwald’s (and Piers Morgan’s) expecting the director of a campaign film to say something negative about the candidate who hired him is truly the height of silliness. When you work for a campaign, your job is to say only good things about that campaign. And that is not a sign of the authoritarian mind at work. It’s just politics.

        To me the real story here is that Obama hired the repellant Davis Guggenheim to make his campaign film.

        • david mizner

          Sure. I made a similar point in that thread. But Guggenheim could’ve certainly said, “Of course, I think he’s made mistakes, but I’m not getting into those here” or ‘This is a campaign film, not a documentary’ or at least smiled ironically as he spouted his propaganda. Instead he comes across as a parody of a PrObama parrot.

          • Warren Terra

            I for one am Outraged that a campaign worker isn’t wearing a button saying “My Candidate Will Do I Guess”.

            • Hogan

              Obama: No Worse Than a Bad Cold

            • joe from Lowell

              Clearly, anyone who would do anything else is demonstrating some sort of personality flaw.

              • Marc

                We must ritually condemn Obama as being evil before grudgingly supporting him. Anything else and we’re no better than cannibals.

  • Linnaeus

    Diane Ravitch is pretty active on Twitter and folks may be interested in following her there. I’ll admit I was a bit taken aback by her localism argument, but she has been, for me at least, a good resource for knowing more about some versions of educational reform that aren’t that good.

    • Ed

      Scott’s points are fair ones, but Ravitch, in fairness to her, has been “making the case” for years. Most disheartening that this kind of policy is coming from a Democratic administration.

      • Scott Lemieux

        I didn’t say that she hasn’t been making the case.

    • rea

      And yet, when somebody says something that’s complete bullshit on a topic I understand reasonably well, like the law, I tend to distrust her pronoucements on other topics I know less well.

      • Linnaeus

        That’s completely understandable. For my money, Ravitch has on the whole been someone to take seriously. We really need voices to counter bad ed reform policy and rhetoric that has become fashionable in recent years.

        • dave

          The fact that you think this proves how bleak things are for those of us that support public education and teachers unions.

          Ravitch is a terrible spokesperson. She was on the “wrong” side of NCLB and inf avro of pernicious education “reform” for years, employing dishonest arguments to support her positions. Now she has changed her tune and employs dishonest arguments in against “reform”.

          She is also incompetent as she continually fails to state that public school students have been making tremendous improvement on national assessment tests (NAEP) for the last 30 years. This failure to point out that public schools are, in fact, better than ever, combined with her tendency to imply (falsely) that public schools are failing, makes her hugely ineffective and detrimental to supporters of public education.

          She is so bad, I sometimes wonder if she is still secretly on the pro “reform” side.

          • Linnaeus

            I’m aware that she’s changed her position on educational reform, but I don’t have a problem with that in of itself. I’ve certainly changed my own politics over the years, and I think that’s been much for the better.

            Maybe Ravitch isn’t the best spokesperson; I’ll admit that educational history and policy isn’t my specialty and there’s a lot I could be missing. The impression I get from reading Ravitch is that she’s a pretty strong defender of public schools, and especially of teachers. To me, this is pretty refreshing in light of denigrating and shaming teachers that has gotten so much currency these days (I think even Wendy Kopp has written something recently to the effect of “don’t denigrate teachers”, but i can’t find it now).

            But I’d certainly be open to reading better advocates if they’re out there.

            • dave

              Sadly they aren’t. The pro teacher/public school side of the education reform debate has been shut out of the conversation as everyone in the education field scrambles over each other to get themselves some of that sweet Bill Gates cash.

              Ravitch is ineffective and will never win the argument. But she’s all we have.

  • JMP

    The state control of education argument is particularly bad; besides the insidious re-segregation, it’s also used to justify teaching lies to children; look at how Louisiana, Texas and many other states have moved to try and get schools to teach creationism; something that has been proven 100% false for well over a century, is only believed in by morons, and yet many states still want to present to children as if it has some validity.

    • Linnaeus

      I suspect – but it’s only speculation – that Ravitch’s concern is that that door can swing both ways: states that enact more progressive educational policies can be hindered by bad federal policy.

      • rea

        states that enact more progressive educational policies can be hindered by bad federal policy.

        Name one.

        • Sebastian Dangerfield

          I can’t say that there are any states with particularly progressive education laws, but many had regimes that were far less odious than what Obama’s Education Department has cajoled them into enacting. CA, WI, and NY, for instance, all had laws on the books that banned the use of student test scores in teacher evaluations. In their zeal to go after RTTT money, all those states repealed those laws.

          That said, there is no doubt that the problem is not that education policy is being shaped by the federal government through Spending Clause statutes, it’s that very bad education policy is being shaped by the federal government through Spending Clause statutes.

          It’s rather disappointing to see Ravitch pitching such stupid memes as “executive departments must faithfully follow the law, not make it” and “waiver conditions promulgated under express statutory authority to discretionarily grant waivers is unconstitutional.” That is especially so because Ravitch’s substantive work on Ed policy (since her conversion) has been excellent. I suspect joe is right that she’s just tacking to any port in a storm, perhaps hoping to peel off some wingers from the bipartisan Ed Policy Fail Brigade.

          • Anonymous

            It seems unlikely that an article in NYRB is going to peel off any wingers to your point of view.

        • Linnaeus

          Sebastian Dangerfield cited the example that I had in mind. That said, I’m not saying that Ravitch’s argument re federalism is a good one. I’m just trying to get a sense as to why she would make it.

      • joe from Lowell

        I suspect that she doesn’t have the slightest genuinely-held belief about educational federalism, and is throwing whatever she can against the wall to see what sticks.

        Maybe, after an entire adulthood in which she never gave the slightest evidence of supporting the libertarians’ argument about federalism in education, nor their argument about executive-branch rulemaking, she suddenly had a conversion on both points.

        But that would be a hell of a coincidence.

    • Pith Helmet

      The state control of education argument is particularly bad;

      The state control of lots of social policies is particularly bad very, very often, as has been seen in Republican-controlled state houses the past few years.

  • L2P

    Well, although she’s wrong on the law as it stands, there are some not-crazy reasons to be a little leery of the scope of Federal power. Medical marijuana is a better example than schools, but there are decent arguments for preserving core local functions free of federal interference under a 10th Amendment/Commerce Clause argument. There can be a lot of squabbling is over what is “core” and “local,” but that happens in California all the time over State preemption of Charter City ordinances and it’s not an impossible problem.

    • Hogan

      The other problem is that “federal interference” can be, and often is, used to describe “setting minimum standards of equity and efficacy, especially for programs the federal government helps pay for.”

    • Scott Lemieux

      As your use of medical marijuana (as opposed to, say, the Voting Rights Act) indicates, when you go down this road what is a “core” state function will essentially 100% of the time be determined by whether or not you consider the federal policy question to be desirable.

      Since I’m not going to pretend to believe in Paulite bullshit, I think that the federal government should have nothing to do with regulating marijuana, but nonetheless Raich was correct. If you can come up with an intelligible argument against Raich that doesn’t put substantial parts of the New Deal and Great Society at risk I’d love to hear it.

      • UserGoogol

        How much of the New Deal actually depends specifically on the Raich/Filburn idea that production for personal purposes counts as commerce? It seems like most of New Deal regulatory structure involves acts which involve two or more people, which an exemption for acts of personal consumption wouldn’t effect. Agricultural price supports aren’t exactly most liberals’ favorite part of the New Deal.

        Plus, things done in one’s home for one’s personal benefit would seem to be a basically private matter protected by Griswold v. Connecticut and its progeny. If anything, sex seems like it would be of a far more “commercial” nature than homegrowing since it necessarily involves two or more people engaged in an act of “exchange.”

        (Although now that I’ve brought Griswold into the discussion I’m not really making an argument based on Federalism.)

      • Murc

        I’m gonna be honest. I’m uncomfortable with not only Raich, but with Wickard. I think that regardless of policy merits, the reasoning behind both of them is shoddy.

        • Scott Lemieux

          Why? Do you dispute that reduced demand affects national markets?

          • joe from Lowell

            I wouldn’t mind seeing Wickard revisited under the post-Griswold understanding of the right to privacy.

            Unless you want to argue that privacy rights only involve da nookie, you pretty much have to acknowledge that a man’s farming practices, which don’t involve anyone else, are his own business.

            But this would only carve out a narrow exception to the “affects national markets” doctrine, not repudiate it.

            • CJColucci

              It’s actaully not hard to reconcile Wickard with Griswold: under the Commerce Clause, Congress can make you buy broccoli; but under the Due Process Clause (substantive due process division), Congress can’t make you eat it.

              • joe from Lowell

                The question is, what about growing it? Is that more like buying/selling it, or more like eating it?

                • CJColucci

                  I suppose it depends. If you’re selling or eating the broccoli you grow, you’re affecting, however minutely, the overall demand for broccoli in the national economy, which puts it on the “buy” side. If you’re using it for some idiosyncratic purpose, like a decorative plant, maybe preventing you from growing it is more like making you eat it.

          • Murc

            I don’t, Scott, but that reading is so broad it essentially makes nearly all commerce into interstate commerce.

            Given that the Constitution seems to be predicated on the idea that there are in fact commercial transactions that take place within the confines of a single state, it seems to me the most logical reading is that if I’m selling wheat to guys in Pennsylvania, that’s interstate commerce, whereas if I’m selling my wheat to guys here in Rochester, I am not doing so.

            I would also go so far as to say that if I’m growing wheat for my own personal consumption, I’m not engaged in commerce at all.

            This isn’t to say that I don’t think the federal governments wide-ranging power to regulate commerce in the post-New Deal era hasn’t, by and large, been a good thing. But thinking that something is good policy and thinking that it rests on a well-reasoned and sensical interpretation of the Constitution are two different things. I think that we should have far more stringent arms controls in this country, as a matter of good public policy, but I can’t square my desire for those with the 2nd Amendment.

            • Scott Lemieux

              I don’t, Scott, but that reading is so broad it essentially makes nearly all commerce into interstate commerce.

              In an industrial, internationally connected economy very different than primarily agrarian one of 1789, this seems most reasonable.

              • Murc

                There’s a case to be made that in an industrial, internationally connected economy very different than the primarily agrarian one of 1789, the feds having more power to regulate it is a good policy position, yes.

                And the proper venue to do that is via constitutional amendment, not by adopting a chain of tortured reasoning where anything that even remotely has fourth and fifth order effects on interstate commerce is defined as counting.

                I really do feel like if I buy some tulip bulbs from a local nursery, I’m not engaged in interstate commerce, even if doing so reduces the demand for fancy imported dutch tulip bulbs. I’d go so far as to say that if I buy an imported product from a local business, I am not engaged in interstate commerce, although said business would have had to do so prior to our transaction in order to make it possible.

                And I especially feel like if I’m maintaining a vegetable garden for my own private pleasure and amusement, I’m CERTAINLY not engaged in interstate commerce.

                (It’s, uh. It’s planting season here upstate. Well, you live over in Albany, I don’t have to tell YOU.)

                • djw

                  And the proper venue to do that is via constitutional amendment,

                  A constitution with a number of vague and broad clauses, a not-isolated-from-politics court empowered to interpret them, and an extremely high supermajority threshold for amendment is usually going to change in ways other than amendment, and that’s by design.

                • Scott Lemieux

                  A constitutional amendment is not necessary if more commerce becomes interstate commerce. Nowhere in its text does the Constitution require that some minimum arbitrary percentage of economic activity be considered “local” regardless of whether the distinction remains meaningful.

                  It also seems worth noting that we tried it your way for several decades and it was a complete disaster, ending up with absurdities like massive multinational sugar and steel companies deemed as not being engaged in “interstate commerce” at manufacturing plants. The New Deal alternative, conversely, has worked perfectly well, as plenty of checks on federal power remain in place. Your alternative is in no way compelled by the text of the Constitution and has already been an utter failure in practice once. I think I’ll pass.

                • Murc

                  It also seems worth noting that we tried it your way for several decades and it was a complete disaster

                  It’s worth noting, sure, but (and I don’t mean this as snark) I’m not sure how its relevant. Our arms control policy has been a complete fucking disaster for ages and ages, but we don’t do much about it because a lot of it is enshrined constitutionally. And I have trouble justifying my intense advocation for the zealous enforcement of the 1st, 4th, and 6th amendments (among others) if I just ignore the 2nd because its completely terrible.

                  ending up with absurdities like massive multinational sugar and steel companies deemed as not being engaged in “interstate commerce” at manufacturing plants.

                  Again, I’m not being absurd here, but that seems… well, logical. Unless your plant is polluting in a way that crosses state lines (which is basically all heavy industry) you are, in fact, not engaged in interstate commerce.

                  But even if you had a magical non-polluting steel plant… the iron you make it from has to move across state lines to get to you, yes? And you’re likely SELLING it across state lines. For that matter, you may have imported experts across state lines in order to help you design and build the thing. All of those things seem like things the feds should have been keeping a sharp eye on prior to the New Deal. They DIDN’T, but they possessed the power.

  • Steve LaBonne

    Duncan is one of the worst school-deform shills around and deserves all the abuse he gets. That said, this NTRB blog entry was way below the level we’ve come to expect from Ravitch in recent years. Luckily in actual print articles (including her recent two-parter in the same periodical) she’s generally been much more scrupulous in her arguments, and for the sake of her effectiveness let’s hope it stays that way.

    • Ohio Mom

      Yes, this wasn’t, as teachers sometimes say, her best work.

      I’ll say that as a special needs parent, I *like* federal involvement in education. In the days before the federal government stepped in (late 1970s), in many localities my kid wouldn’t have been allowed to go school! There are other quibbles I could make with Ravitch’s arguments in this article — many of them are cataloged by others in the other thread — but to concentrate on the weaknesses of this piece is to miss the forest for the trees.

      The forest is, as you put it, the entire school “deform” movement. It is well-underway, it is not getting the attention it deserves, and it is doing real damage. That is what is really deserving of blog posts and long threads.

  • The trend towards high-stakes standardized tests as a magic bullet is terrible policy.

    Trend? Maybe ten or fifteen years ago. In 2012, the only measure of teacher competence that is accepted by the general public, school boards, state and federal governments, Bill Gates, the Los Angeles Times, and everyone other than a teacher are increases in students’ scores on standardized tests.

    The failure to do produce these increases, by whatever means, has cost teachers’ their jobs.

    And the worst part of all this? Everyone who matters on education policy (Ravitch does not matter) thinks it’s just great!

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