The Boehner and Duncan retirements might be just the excuse Congress needed to do nothing about education policy

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WASHINGTON — Everyone knew that getting an overhaul of the No Child Left Behind education law signed would be hard: These days, the idea of the House and Senate agreeing on a compromise bill that would get the president’s approval — and on a lightning-rod topic like K-12 education — seems doomed to fail.

But leaders of the effort to retool the 2002 law, like 2nd District Rep. John Kline, who is chairman of the House Committee on Education and the Workforce, have remained optimistic in the face of long odds. In the past two weeks, however, developments in Washington have emerged to make their task even harder, or at the very least, more volatile: the resignations of House Speaker John Boehner and Secretary of Education Arne Duncan.

To briefly recap: Back in July, the House and Senate passed respective versions of the Elementary and Secondary Education Law, also known as No Child Left Behind. The Senate bill — which passed by a relatively wide margin — is thought to be closer to what the president might support than the House bill, which narrowly advanced on a party-line vote.

Kline was named chair of the bicameral, bipartisan committee that will meet to negotiate differences between the bills. While members of the conference have not been announced, the staffs of Kline and other key lawmakers have reportedly been at work since summer on a compromise.

This is the closest Congress has come to overhauling K-12 education policy since No Child Left Behind was passed in 2002. (It technically expired in 2007.) Despite that, education experts and policy-watchers agree that the chances of success are now dwindling — and fast — because of Boehner’s retirement and a number of other factors.

Testing a new speaker

In Boehner — the last member of Congress remaining to have helped write the original NCLB — Kline undoubtedly loses a formidable ally. But the issue is less that Boehner would have moved the education bill and more that his successor may avoid it like the plague, according to Arnold Shober, an education policy expert at Lawrence University in Wisconsin.

The man likely to be the next speaker, Rep. Kevin McCarthy of California, is broadly well-liked but not a darling of the Tea Party right, which has cast him as Boehner 2.0. If he is elected, McCarthy will be tested from the get-go by the House Freedom Caucus, a group of about 40 conservative representatives who led the charge for Boehner’s ouster.

The education package, Shober says, “is a huge bill … it has lots of marks of the federal government that these conservatives aren’t very happy with.” It may be an ideal opportunity for conservatives to push McCarthy’s limits by attaching conservative policy favorites, like an expansion of school-choice vouchers, and daring him to blink.

In any case, Shober says, House conservatives are too emboldened by Boehner’s departure to agree to anything resembling a moderate compromise with the Senate and the White House. And in the unlikely scenario that McCarthy is upset and someone like Utah Rep. Jason Chaffetz becomes Speaker, well, forget it.

On the other hand, if the bill advances out of a conference, it will present an important opportunity for McCarthy, or whoever the next speaker may be, to demonstrate that he — and the GOP — can lead, according to Michael Petrilli, president of the Fordham Institute, a right-leaning education think tank in Washington. McCarthy, he says, would pick up the gavel with a record of knowing how to get bills through the GOP conference.

Petrilli says McCarthy was active in getting the House bill passed in July. “The base doesn’t want to compromise, but there’s a strong argument that going into the election, [McCarthy] can demonstrate that Republicans can get stuff done,” he says.

If McCarthy has to rely on Democratic votes to do that — a near certainty with this piece of legislation — it could doom him, Shober says. “One of the gripes about Boehner was that he was willing to borrow Democratic votes to pass legislation … if they have a new speaker that does the same, it won’t make conservatives any happier, and you might see a new speaker election.”

Is there any chance Boehner might take up education — and help his old pal Kline — as part of his so called “barn-cleaning” before he leaves Congress at the end of October? Unlikely, Shober says: “Boehner hasn’t attached much of his own speakership to the legacy of that bill. … I think it’s important to him, but I’m not sure it’s on the top of his list for this month.”

Duncan’s departure a wildcard

In the middle of all this, the White House is losing its top education policymaker: President Barack Obama’s longtime education secretary, Arne Duncan, announced his resignation last Friday. Observers agree that his departure won’t affect congressional dynamics as much as Boehner’s, but it could make things more interesting.

In his nearly seven years on the job, Duncan became something of a bogeyman for elements on both the right and the left: The former disliked his emphasis on the federal government’s role in education policy, while the latter felt betrayed by his enthusiastic support of charter schools. He also earned both praise and criticism for his decisions to waive states from certain provisions of No Child Left Behind, slowly dismantling the law while Congress continued to dither on a response.

Shober says there are two ways Duncan’s retirement could shake things up: For one, he was so disliked by some conservatives that his departure could free up some space for them to get behind certain policy points, like strong testing requirements, that were sullied in some corners simply by being associated with the secretary.

Kline and other GOP leaders could also use Duncan’s retirement to rally conservative support. According to Shober, the administration’s piecemeal dismantling of No Child Left Behind was a source of anger and disappointment on the right. “Kline could say, ‘look, Duncan the waiver king is gone, and now we can re-authorize this bill to say it’s not waiver-able. We can guarantee that Duncan’s successor can’t shoot holes in our bill.’”

John B. King, deputy education secretary, was named as acting secretary by the president — he’ll take over after Duncan departs the office at the end of the year. The jury is out on how King might differ from Duncan: The two share a support for charter schools, but as New York state’s top education official, King pushed a high-stakes testing regimen that Obama is increasingly looking to pare down.

Too many obstacles?

At this point, of course, these scenarios are hypothetical; the House and Senate conference members haven’t even been named. After that happens, they will then have to meet and agree on a compromise to send to each chamber, before we can assess a showdown between conservatives and a new speaker. (Though it’s likely the staffs of key players will have already done much of the work by then.) Many observers agree that the barriers to a compromise arriving at Obama’s desk — let alone him signing one — are just too great.

A compromise bill would likely have elements that would make a yes vote a difficult ask even for less conservative House Republicans. The White House has repeatedly said that it wants any bill to maintain accountability provisions that codify focuses on low-income and minority students and schools. According to Kevin Welner, director of the nonpartisan National Education Policy Center, “the House was never going to agree to anything that would be acceptable to the Senate, let alone to the president.”

Election-year dynamics will play a major role, too — and even top lawmakers like Kline have acknowledged that the closer Congress gets to 2016, the less likely it is to pass the bill. Presidential politics has a sweeping effect that causes members of Congress to dig in their heels on ideology, and backing a compromise with Obama could give ammunition to the opponents of Republicans facing primary challenges.

“It’s a big bill and I’d be surprised if they took it up next year if they don’t take it up in the next couple of weeks,” Shober says.

Welner says that with Boehner’s departure, “the chances of passage probably went from below 10 percent to further below 10 percent.” Petrilli says it’s always safe to bet against Congress getting something done, but thinks there’s a 25 percent chance it can pass ESEA.

Kline and allies remain optimistic

Kline and his Senate counterpart, Lamar Alexander of Tennessee, have remained publicly determined to push a law through Congress. Kline said in September he is confident they will send a bipartisan bill to Obama’s desk by the end of the year. And while Kline himself is retiring, it will be at the end of 2016 — possibly giving him an advantage, Shober says. “He has [more] flexibility in this bill than if he were running for re-election … he may be able to patch something together.”

But as Boehner’s speakership illustrated time and again, Congress has tended to govern by crisis politics, only taking up important issues if an ominous deadline or cliff loomed. The same set of structural obstacles that dogged Boehner will face the next Speaker. With education policy there’s no deadline or cliff on the horizon — or ever. “It’s eight years overdue,” Shober says. “No one’s breathing down their neck.”

It’s about time for the American public to start doing just that, says Mary Cathryn Ricker, executive vice president of the American Federation of Teachers. If Congress fails to pass the law, “it looks like education is such a low priority that there are elected officials willing to play politics on this and not make any progress at all,” Ricker says.

“We need to say, ‘enough!’ We expect Congress to model for us that you know how to get things done.”