In the early days of the Obama administration, Secretary of Education Arne Duncan was the bipartisan superstar. At Duncan’s confirmation hearing, Senator Lamar Alexander (R-Tenn.) told him, “President-elect Obama has made several distinguished cabinet appointments, but in my view of it all, I think you are the best.”

But while Duncan continues to champion ideas, like charter schooling and smarter teacher evaluation, that enjoy bipartisan support, his methods have become increasingly imperious. Indeed, Alexander, the ranking Republican on the Senate Committee on Health, Education, Labor, and Pensions, now warns that Duncan is trying to turn the federal Department of Education into a “National School Board.” Listen to key conservative critics and Hill staff long enough, and you can’t help but start to see Duncan as a giant octopus, using waivers as tentacles to command education policy down to the individual district level.

Charmed by Duncan’s awkward demeanor and “aw, shucks” attitude, the media have missed the shift. Recalling their giddy excitement during Duncan’s 2009 federal Race to the Top competition, columnists and reporters still treat Duncan as a bipartisan golden boy. A $4.35 billion program tucked into the 2009 stimulus bill, Race to the Top awarded hundreds of millions to the cash-starved states that most effectively promised to pursue Obama administration priorities in 19 areas of school reform.

The program was a huge hit. David Brooks glowingly asked, “Why don’t we use a similarly light but energetic .  .  . approach when it comes to health care, transportation, or energy or environmental policy?” Thomas Friedman wanted to see Arne Duncan named secretary of state in 2012, explaining, “It would be very helpful to have a secretary of state who can start a negotiating session with Hamas .  .  . by asking ‘Do you know how far behind your kids are?’ ” While Race to the Top largely consisted of Uncle Sam borrowing funds so Duncan could reward states for empty promises, it had some real pluses. It encouraged states to lift caps on charter schooling and remove data “firewalls” that prohibited states from using student performance to evaluate teachers. Just maybe, with enough funds, Duncan could have brought peace to the Middle East.

But then the stimulus money ran out. Duncan was out of carrots. Thanks to No Child Left Behind, though, he had a big stick. NCLB, Bush’s signature education bill enacted in 2001, had bizarrely declared in statute that 100 percent of the nation’s students would be proficient in reading and math by 2014. Schools that failed to demonstrate Adequate Yearly Progress would be subject to a variety of remedies, culminating in a plan to restructure the school. In 2011, Duncan warned that “four out of five schools” might fail to make AYP the following year.

While Duncan was exaggerating, the problem was real. Governors and superintendents knew they’d be labeling lots of decent schools as failing to make AYP—disrupting schools and infuriating parents, teachers, and voters. Conveniently enough, it just so happened that Duncan had the authority to waive provisions of NCLB. That waiver authority is straightforward: Duncan could allow states to opt out of portions of the law for reasons he deemed appropriate.

Without funds to push his agenda, Duncan went for something much grander. He offered up a novel, expansive interpretation of his waiver authority. He would grant waivers to states only on the condition that they promise to enact a slate of Obama priorities. It was an offer that states truly couldn’t refuse. Of course, nothing in the law provides Duncan with the authority to impose these conditions, legislating by fiat. While it’s for the courts to decide whether this is illegal, it is certainly, by definition, lawless.

It is also looking increasingly capricious. Duncan required that states adopt the Common Core or a similar substitute in order to qualify for waivers, and that states agree to adopt particular approaches to teacher evaluation in both district and charter schools. The initial set of waivers required states to link personnel decisions to test-based student growth by the 2015-2016 school year, but given that the tests that the Department of Education encouraged states to adopt won’t be released at scale until 2014-2015, not even the Department of Education thought that a year would be enough time to work out the kinks. So, making the law as he went, Duncan gave some (but not all) states the opportunity to apply for waivers from waivers to delay this requirement.

Duncan took the astonishing step of issuing waivers directly to eight California districts this summer, allowing them to operate under a different set of federal policies than the other 1,000 districts in California. Even the left-leaning New America Foundation thought this was “opening Pandora’s box.”

Last month, the Department of Education warned three states, Kansas, Oregon, and Washington, that their waivers were at risk because they were failing to abide by the promises on teacher evaluation they’d made to earn their conditional waivers—even though NCLB doesn’t give the feds any control over state teacher evaluation, and even though no one in the Department of Education has explained what’s distinctive about these three states when many of the dozens of states with waivers have also broken various commitments. Duncan has turned into Dean Wormer from Animal House, putting states on “double-secret probation” when they displease him.

After being conspicuously absent from the NCLB reauthorization debate, Duncan penned an op-ed in the Washington Post faulting Congress for not passing a bill—hypocritical, given that it was Duncan’s use of waivers that alienated even moderate Republicans like Senator Alexander and helped blow the slender chance of a deal. Truth is, the administration is content to let Duncan legislate from the seventh floor of the Department of Education. The White House gets what it wants without reauthorizing the long-overdue NCLB, and it gets to snipe at Congress for not acting to boot. In legislating by fiat, Duncan is ensuring that partisan fissures over the Common Core are likely to grow and that conservatives will have to step in to push back on this supersizing of the federal role. Arne Duncan may still see himself as a champion of bipartisan reform, but he’s now governing more like an octopus than a cabinet secretary.

Frederick M. Hess is director of education policy studies at the American Enterprise Institute, where Max Eden is a research assistant.

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