Louisiana Parent Busts HR5 and Its False Promise of Local Control

First my brief response to Congress  on the impending re-authorization of the FAILED ESEA/NCLB federal legislation with HR5, followed by a more comprehensive analysis posted on Facebook by  Louisiana parent Dominique  Ditoro which she attributes to Indiana parent Erin Tuttle.

I hope the American public is not so naive as to believe that ANY legislation from Congress will return local control. This bill MANDATES that states not require highly qualified teachers in our classroom. This bill MANDATES that states allow public education dollars to flow to private and parochial schools. This bill MANDATES that public taxpayer dollars be allowed to go to private business. This bill perpetuates the myth that transparency and accountability are more than just words on paper. Please vote NO for this bill or be prepared, along with every other Congressman to explain why you supported this initiative to destroy a system of public education that serves every child! Bait and switch politics cannot be allowed to undermine a system of education that holds the promise of our Constitution to maintain a representative republic or democracy for us all.

Local Control?  I think NOT!  

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1. HR 5 WILL NOT RESTORE STATE SOVEREIGNTY OVER PUBLIC EDUCATION
(Subpart 4, section 6561) It states that the Secretary of Education can't enforce any requirements under the program that would violate states' rights unless the state legislature gives 
its consent to participate in the ESEA, which encompasses around $25 billion dollars in aid to states. 

Essentially, participating in the program to receive funds requires states to waive their state's rights if they conflict with any requirements of the program. This is the same type of financial coercion seen with Race to the Top grants and NCLB waivers.

"[The US Department of Education may not violate states' rights] unless the legislature of that State shall have by laws expressly approved that program and, in doing so, have waived the State's rights and authoritties to act inconsistently with any requirement that might be imposed by the secretary as a condition of receiving that assistance."

HR5 fails to “expand options” for the states but instead ensures only one outcome; that which is favorable to the federal government, through the Secretary of Education, just like Obamacare, and that failure is of major consideration under the spending clause and it goes far beyond its predecessors. This is a big red flag to those that understand the historical danger to a provision that “waives the State’s right and authorities to act inconsistently with any requirement that might be imposed by the Secretary as a condition of receiving that assistance. Further and no less important, parts (a) and (b) make HR5 on its face a clear violation of due process requirements and the spending clause, as written and long interpreted by the U.S. Supreme Court, in addition to other aspects of the bill.  

How can a state be required to waive its right to act within the bounds of a very encompassing law and the remaining portions of its predecessors? A state cannot waive its right to something that “might be imposed.” Every aspect of education is covered in accepting the federal funds under HR5, so what is left for a state to control in education that is not under federal review/scrutiny/mandate? One should also carefully consider all the rules and regulations that will flow in the future, further entrenching the states into a vicious cycle that they will never escape and that will lead to LESS state sovereignty NOT more!


2. THE SECRETARY OF EDUCATION WILL HAVE UNPRECEDENTED AUTHORITY
(p. 42, line 9) "The Secretary shall approve a State plan..."
(p. 42, line 12) the Secretary shall "disapprove a State plan ... if the Secretary demonstrates how the State plan fails to meet requirements..."

The Secretary of Education (Arne Duncan) is the ultimate arbiter as to the state education plans relative to the “pillars” in education; standards, assessments, accountability, etc. Therefore the very likely effect will be that state education policies nationwide will be molded in an image that meets with the Secretary’s approval. There is a supposed limitation in place that includes a requirement for him to "demonstrate" how a plan fails to meet a requirement. However, this is completely subjective. As a result, the limitation is meaningless. The bottom line is that he ultimately has the final say. 

SSA may give the appearance of restricting the authority of the Secretary, but it most certainly will have the opposite effect. One of the most disturbing problems of the bill is that the prohibitions placed on the authority of the Secretary are meaningless, as there is no enforcement mechanism or accompanying penalty for violating the listed prohibitions. Proponents of this bill can state that there are limitations on the Secretary put into place with this bill and promote it in that manner, but fail to mention or address the absence of the ability to enforce these limitations and its effect.


3. THE SECRETARY OF EDUCATION ONLY HAS TO GIVE NOTICE TO CONGRESS OF REGULATIONS
On page 16, it states "If the Secretary determines that a negotiated rulemaking process is unnecessary or the individuals...fail to reach unanimous agreement, the Secretar
y may propose regulations ... 30 days after giving notice of the proposed rule to Congress, the Secretary may proceed with the rulemaking process..."


In providing the Secretary of Education with legal discretion over the rulemaking process, this provision is absolution by law for the Secretary of Education to violate constitutional due process protections as set forth under the Administrative Procedures Act, which cannot be done because due process is required by the Constitution; and the attempted replacement of notice and comment for rulemaking with congressional notice is also a violation of due process, because congressional notice is not congressional approval. 

Simply put, the Secretary of Education proposes a regulation, notifies Congress, allows a comment period, and then makes it an official regulation. There is no mechanism for Congress or stakeholders to intervene other than providing a comment during the allowed comment period.

4. HR5 DOES NOT ELIMINATE 69 FEDERAL PROGRAMS AS IT CLAIMS
The Student Success Act does not eliminate 69 programs; it consolidates them. Considering that funding for ESEA programs remains the same, it seems na├»ve to believe funding would not automatically be less, if 69 programs were actually to be cut. 

The Local Academic Flexible Grant (a block grant) does not give states the needed flexibility to spend tax dollars based on the needs of the “unique” student populations. It only allows states to commingle the funds between Title 1 programs and requires states to spend the funds in accordance with the federal parameters established for those programs consolidated under the HR5.

5. HR5 DOES NOT CUT SPENDING

While freezing spending on ESEA is a welcome step, HR5 does not decrease spending and consolidates programs versus cutting them (an action that would go toward removing the rotten apple 

that has become NCLB). Additionally,Congress has never appropriated the full amount authorized for ESEA so to claim that it decreases spending is not an accurate statement because the amount actually spent never reflected the full amount authorized anyway. 

6. HR5 DOES NOT PROTECT PRIVACY

FERPA was effectively “gutted” by the Secretary of Education in December 2011 undermining the Congressional intent of the law, as it no longer protects privacy. It has opened door for third party sharing of children’s information without the consent of parents. So any reference in HR5 of privacy protection that must comply with FERPA is meaningless (p. 479-480).

In light of the backlash from the Common Core State Standards Initiative that relies on massive data collection, FERPA should have been restored BEFORE any reauthorization of NCLB. Typical of Washington, proposing HR5 before addressing FERPA is no different than refusing to make any real efforts to close the border before addressing amnesty.

7. HR 5 CREATES A NATIONAL SCHOOL BOARD

(p. 41, line 19) "...the Secretary shall establish a peer-review process to assist in the review of State plans...and appoint individuals ...who are representatiave of parents, teachers, State educational agencies, local educational agencies, and private sector employees (including representatives of entrepeneurial ventures)..
The peer review teams created through regulation in HR5 will not just be a "de facto National School Board run by the federal government," but will definitely be a National School Board codified into federal law. The Secretary alone appoints the individuals who with his final authority will oversee the 

plans that States are required to submit to the Secretary. That is how one creates a National School 
Board.

8. HR 5 DOES NOT ALLOW STATES TO GET OUT OF COMMON CORE

STATEMENT OF PURPOSE. “The purpose of this title is to provide all children the opportunity to graduate high school prepared for postsecondary education or the workforce.”


While this language may seem innocuous to the average reader, those familiar with the language used in applications for NCLB waivers and Race to the Top grants to enforce Common Core understand these words require alignment of standards and assessments to the Common Core, which is the established nationwide expectation of what is expected to be prepared for postsecondary institutions, or college-and-career-ready.

Also, any attempt in this bill through prohibitions or limitations to prevent the Secretary of Education or the peer review teams from requiring the use of Common Core State Standards or any other standards is meaningless. As stated before, there are no enforcement mechanisms or penalties anywhere in this bill. The obvious absence of these is a strong indicator of the intent of this bill.

9. FEDERAL TAKEOVER OF PARENTAL RIGHTS
By tying inalienable parental rights to the receipt of funds and federal “obligations,” HR5 claims the authority to take parental rights away under the conditions it defines.
SEC. 6564. INTENT OF CONGRESS.

‘‘Other than the terms and conditions expressly approved by State law under the terms of this sub 

part, control over public education and parental rights to control the education of their children are vested exclusively within the autonomous zone of independent authority reserved to the States and
individual Americans by the United States Constitution, other than the Federal Government’s undiminishable obligation to enforce minimum Federal standards of equal protection and due process."
Even in the statement of purpose on page 11, the bill minimizes parents and maximizes itself, by “affording parents substantial and meaningful opportunities to participate in the education of their children”.

10. FEDERAL OVERREACH INTO PRIVATE AND RELIGIOUS SCHOOLS
There are over 12 pages devoted to private schools in this bill. On pages 78-82, it mandates that private schools: “ensure that teachers and families of the children participate, on an equitable basis, in services and activities… SECULAR, NEUTRAL, NONIDEOLOGICAL.— Such educational services or other benefits, including materials and equipment, shall be secular, neutral and nonideological.”


Private schools are just that - private. Our federal government has no right to require private Catholic, Baptist, Mormon, or Jewish schools to offer services that are non-religious and secular.



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