The Importance of Negotiated Rulemaking to the No Child Left Behind Act

Abstract

The No Child Left Behind Act of 2001 is failing both in theory and execution. NCLB has been called “the most sweeping reform of the Elementary and Secondary Education Act since it was enacted in 1965” and was intended to “redefine the federal role in K-12 education so it can be used to improve the academic achievement of all American students.” The stated purpose of the NCLBA is to “ensure that all children have a fair, equal and significant opportunity to obtain a high-quality education.” This article takes a new approach to examining the failure of NCLB. Much of the criticism of NCLB focuses on the Act’s substantive requirements, but this Article examines the administrative process for enacting regulations under NCLB. I argue that the substantive failures of NCLB are magnified and exacerbated in the negotiated rulemaking process. Negotiated rulemaking offers the promise of collaboration between the Department of Education, state education officials, local school boards, teachers, parents, and students to achieve the goals of the statute. Instead, the voices of the non-Department of Education officials are being ignored during the negotiated rulemaking process. The valid critiques of many aspects of the statute, such as the burdens on state resources, are left unaddressed during the rulemaking process. Instead of the administrative process leading to the best practices to achieve statutory goals, it becomes another roadblock to success for NCLB.

Keywords: education law, administrative law, negotiated rulemaking, education reform