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By Ben Wolfgang
The Washington Times
November 6, 2011

Key lawmakers and educators are growing increasingly pessimistic that a massive overhaul of federal school policy can get through Congress before the 2012 election-year battles could doom the hopes for major bipartisan legislation.

Failure to update the 2001 No Child Left Behind law, despite considerable support from both Democrats and Republicans on Capitol Hill, would have the practical effect of giving President Obama a much freer hand in setting federal education policy and pushing his favored reforms. Lawmakers are already grumbling that waivers being granted by the administration to the states on NCLB mandates and deadlines represent an end-run around Congress on the issue.

But analysts and House and Senate aides also believe the administration’s waiver announcement had the positive effect of spurring Congress to act more quickly, evidenced by last month’s passage of a major overhaul package by the Senate Health, Education, Labor and Pensions Committee.

But that legislation, which currently has the support of only three Senate Republicans, is seen as deeply flawed by many in the GOP. Even if it clears the Senate next year, as many expect, finding common ground with the Republican-led House will be an uphill battle.

Any effort could also find itself in the crossfire from the presidential election debate, with Mr. Obama’s Republican opponent possibly not wanting to see a White House signing ceremony in the middle of the campaign.

“I doubt it will be done. The issues are too complex, and there just isn’t enough time left,” said Jack Jennings, president and CEO of the Center on Education Policy, an independent advocacy group. Mr. Jennings also spent more than 25 years as general counsel and subcommittee staff director for the House Education Committee.

Despite Congress‘ poor track record of tackling major issues during a presidential election year, Mr. Jennings and others believe both parties would benefit from a high-profile compromise on education. Such an agreement would demonstrate to voters that lawmakers remain capable of tackling big problems and breaking through partisan gridlock.

“Education is really about the only issue left that has not managed to make itself totally toxic,” said Bob Wise, former West Virginia governor and president of the nonprofit Alliance for Excellent Education. “If Congress really resents the waiver proposal, then they have an obligation to act now. It’s not fair to states to begin implementing significant changes and then suddenly change all of the rules on them. The longer Congress waits, the more the waivers take effect. If you act in a year, for states that are already into the waiver system, you really upset the process.”

Without action by Congress, the Obama administration waivers will be granted in time for the 2012-13 school year. So far, at least 39 states, Puerto Rico and the District have applied, according to the Education Department. The opt-out system would free states from the most unpopular mandates of NCLB, including the infamous “failing schools” designation.

NCLB has grown so inflexible, specialists say, that states are willing to do just about anything to escape from it. They have for years lobbied Congress to change the law or scrap it completely, but that tide could turn if the waiver system satisfies states’ appetite for reform.

“The impetus to get [education reform] done could be lost” once waivers go into effect, said Tamara Fucile, vice president of government affairs at the Center for American Progress, a left-leaning D.C. think tank.

The Senate HELP Committee bill, crafted by Chairman Sen. Tom Harkin, Iowa Democrat, and Sen. Michael B. Enzi, Wyoming Republican, has been cast as a bipartisan breakthrough, garnering the approval of Mr. Enzi, Sen. Lamar Alexander, Tennessee Republican, and Sen. Mark Kirk, Illinois Republican. It also got the support of all 12 committee Democrats.

GOP aides say that last month’s committee vote didn’t represent a full endorsement of the legislation, but rather a political maneuver to allow the bill to reach the Senate floor, where it will be the target of a slew of amendments from both Republicans and Democrats.

Mr. Harkin has already given up some of what he wanted in the bill, such as accountability benchmarks for school systems designed by the federal government. Some on the left believe the bill was watered down further after the passage of a Republican amendment giving states the ability to come up with their own school turnaround plans, rather than rely on the six models outlined in the bill.

Analysts believe the federal government’s footprint would have to be reduced even further to satisfy House Republicans.

“In order to get a bill this Congress, there will almost have to be no accountability at all,” Mr. Jennings said, adding that such a move to the right would erode support from Senate Democrats