Why Congress can’t deliver on education policy

August 3, 2023

This summer a Gallup poll shows Congress, yet again, has a low approval rating. Only 19% of respondents approve of the job Congress is doing while more than three-quarters (77%) disapprove.  

Another recent Gallup poll shows similar findings about American confidence in institutions like the police, the U.S. Supreme Court, large tech companies, and newspapers. Congress ranked the lowest. Just 8% of Americans reported having a “great deal or fair amount” of confidence in Congress, one point higher than its all-time low of 7%. 

Increasing polarization seeping into Congress is likely part of the disillusionment. Last year, polarization in Congress hit a five-decade high, meaning its Republican and Democratic members are ideologically further apart than ever.  

Polarization, the politicization of all it touches, and the reality that Congress cannot deliver the change we often seek are all reasons to be wary of Congress getting involved in issues that it was not meant to create laws about, like education. 

Why Congress cannot deliver on education policy 

Because of the 10th Amendment and the fact that the Constitution does not mention education, people have understood education to be a state and local endeavor. Yet, around the 1960s, Congress and the federal government increased their involvement in education. 

Aside from constitutional arguments, Congress is also not equipped in practical ways to deliver satisfactory results for students. If anything, Congress might be best equipped to gather and report data on student outcomes and promote equal opportunity in education. Early on, the federal government conceived of a Department of Education with a limited role in gathering data and disseminating ideas, but even that was considered a risk of becoming too powerful, and the institution was quickly diminished. 

As for Congress, it is known for being a clunky, slow-moving, and – especially in recent years – a politically charged institution. It was not built to implement grand or sweeping policies on education minutiae that involves person-centric, one-on-one types of interaction between students, teachers, parents and school boards.  

No Child Left Behind 

The No Child Left Behind Act (NCLB) that passed in 2001 is a clear case study for problems arising from congressional action in education.  

A reauthorization of the 1965 Elementary and Secondary Education Act, NCLB was a bipartisan-effort law, backed by President George W. Bush, intended to boost student achievement. It was the biggest congressional education reform since 1965. But its effects made its policies a highly politicized burden rather than a boost. 

The law required states to test students in grades 3-8 and one time in high school; reach 100% proficiency according to state standards by the 2013-14 school year; put “highly qualified teachers” in classrooms; and make adequate yearly progress toward proficiency under the threat of certain sanctions.  

If these requirements were seen as micromanaging education, the sanctions for failing to meet these goals were arguably more so. 

Some of the sanctions for not making progress included allowing students to attend other schools, requiring schools to offer free tutoring, or implementing invasive turnaround strategies like converting schools into charter schools or shutting them down altogether.  

On-the-ground practitioners saw how ill-fitted the law was to reality. Many students did not take advantage of school transfers because they did not know about the option. There was even reluctance and quiet pushback among certain leaders about accepting students from failing schools.  

Schools had a challenging time implementing free tutoring in some cases, and many students didn’t know about the tutoring opportunity.  

Teachers felt like the law incentivized them to focus on tested subjects like math and reading at the expense of social studies or the arts. Further, to many teachers, the law appeared to place a heavy emphasis on testing rather than learning.  

Sometimes the requirement to apportion highly qualified teachers equally between poor and wealthy school was simply ignored 

What is more, most states were not on track to meet the proficiency requirement by 2013-14, because a 100% goal in most fields – while aspirational – is almost always impossible. 

NCLB made the most dramatic changes to ESEA since its original passage in 1965, but NCLB’s legacy turned out to be an increased focus on testing and elevated angst and politicization in education for many stakeholders. Teachers, administrators and parents alike had significant concerns. 

Reinvestment and Reauthorization Act plus Race to the Top grants 

Ironically, the federal government followed up or in some cases attempted to remedy NCLB with more federal policies impacting educational minutiae.  

In 2009, under the advocacy of President Barack Obama’s administration, Congress set aside $4.35 billion of the Reinvestment and Reauthorization Act (“the Stimulus”) to create a competitive grant called Race to the Top administered by the Department of Education.  

Importantly, the voluntary-but-enticing grants conditioned funds on states adopting different policies, including career-ready standards. Ultimately, the standards that states were pushed toward were the infamous Common Core Standards with their standards-aligned tests. Because the need for funding was so heightened during that time of the Great Recession, 46 states and the District of Columbia applied.  

Though the Common Core standards were created by outside organizations, many felt the federal government was pushing a nefarious political agenda because their adoption was incentivized by an Obama administration grant. Others thought the standards were good or at least fine. But the political controversy and blowback were enormous, resulting in many states rolling back the standards and its aligned tests.  

Furthermore, because many states were not on track to meet the proficiency measurement by 2013-14, the Obama administration offered waivers from certain parts of the law in exchange for evaluating teachers based on test scores. Unsurprisingly, this policy was unpopular with teachers and teachers’ unions.  

Perhaps most importantly, the original law of NCLB failed to significantly move the needle on both raising average academic performance and closing the achievement gaps. The students it sought to not “leave behind” did not see the hoped-for benefits after half a decade. 

In short, Congress’ first big attempt to intervene in education since 1965 had mostly failed. Instead, among all stakeholders, it injected politics into policies.  

Every Student Succeeds Act 

After NCLB’s widespread unpopularity, Congress decided to replace it with another reauthorization of the law called Every Student Succeeds Act (ESSA) in 2015. Its intent was to give greater flexibility to states. While much of the decision-making on how to implement testing rests with the states, regular testing remained. The law required states to create plans for how they would comply with it. The Department of Education would then have to approve the state plan for the state to qualify for funding, meaning in many respects the accountability structure stayed the same. 

While ESSA showed self-reflection about federal involvement in education, the fact that states had to get permission from the Department of Education showed the final arbiter was the federal government. 

Why states should lead the way 

Congress may have cooled off on highly intrusive reforms since NCLB, but federal policymakers still often seek to legislate in education and dictate to school systems. Presidential candidates make sweeping promises about what they will do in education if they win, for example. If we continue to look to the federal government, making education politics-centric rather than policy-centric, we are likely to see more polarization in rhetoric, more frustration when Congress can’t change policies, and more dysfunction in education policy when they do pass laws. 

The reality is even though states and districts can suffer from polarization in education, they have a better record of accomplishment than Congress in making important education reforms that address the needs of families and students The bipartisan rise of the charter school movement in the 1990s (with lasting impacts today) came from the state and local level, starting with legislation in 1991 in Minnesota. The same is true of education choice legislation, especially after the pandemic. Education savings account programs flourished in various states in 2021 and 2022 across the country, accommodating students during the recession and helping them begin to recover from the pandemic learning loss.  

Even when it comes to academic standards, the best came not from Common Core, but from the state of Massachusetts. On its own, the state created some of the strongest standards in the nation, lifting outcomes for students. Massachusetts lowered its standards and saw declines in student scores when it adopted Common Core to get federal funds.  


While states, local leaders and families themselves strongly tend to be the most effective education reformers, they do not get everything right in education. The federal government has a role to play in addressing issues like egregious inequalities in the treatment of minority students or students with disabilities in schools.  

Likewise, polarization and politicization can happen at any level of government. But the more local the decisions, the more likely those most affected by education policies – parents, teachers, students – can be heard. Federal leaders are more likely to represent party platitudes or promises than the unique needs of states, districts, students and families.  

In short, we should look more to state policymakers, local leaders, educators and parents to enact impactful and positive education reforms. Let Congress continue legislating in areas in which its powers to legislate are enumerated in the Constitution.  

The institutions of the federal government were not constitutionally directed to get involved in education. Looking at their track record, that was for good reason. 

Insights: analysis, research, and informed commentary from Sutherland experts. For elected officials and public policy professionals.

  • Education is not enumerated in the Constitution, meaning Congress was not prescribed a role to play in education policy.
  • Congress is a clunky, slow-moving institution that was not built to boldly reform education minutiae effectively.
  • The increase in federal involvement in education since the 1960s, including the No Child Left Behind Act, shows the practical limits of the institution legislating in education.
  • States and local leaders are better equipped to create bold reforms needed to positively impact outcomes for students.

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