States’ Rights Part II 
By Martin Harris

Within living memory, the phrase "States’ Rights" was a coded signal for federalism in principle and de jure segregation in practice. Not any more. The phrase isn’t in overt use currently, but the principle still exists. Now it underlies the political maneuvering which has been taking place since the federal government began taking an increased interest in public education, sending more money towards what used to be an entirely State- and local-funded governmental activity, and (not surprisingly) trying to require some measures of accountability in return.

The concept of federal testing of students supposedly "owned" by States was adopted by Congress in 1964, at about the same time that all sorts of other "Great Society" social-engineering notions were being put in place by the Johnson administration. The testing bureaucracy was to be the newly-created National Assessment of Educational Progress, NAEP for short, and the first tests were administered to very carefully selected statistical samples of students in every State across the country, at the 4th, 8th, and 11th grade levels in the math and reading subject areas, in 1969. For the first time, under the theory of 50 different State educational systems serving as competing laboratories for effective instruction, it would be possible to see the different systems compared in terms of how much they spent per pupil, how they organized their instructional efforts, and how well their students fared, measured in terms of actual achievement, as a result. However, in the late ‘60’s, such openness to measurement was more than the Left in general or the National Education Association in particular could or would tolerate, and so political compromises were made. Yes, the NAEP tests would be administered and the results compiled, but the individual States, while obliged to participate, were not obliged to turn in their results for inclusion in the National Digest of Educational Statistics, nor to publicize the results in-State if their State Education Departments didn’t like them. Under the rubric of States’ Rights, their SED’s would be free to purchase, deploy, and publicize the results of any other tests they might choose alongside of the NAEP’s. They still are free to do so, and most do. From the start, a handful of States opted out of full participation in the NAEP protocol. On the website of the NAEP there’s a page illustrating the pattern for the decade of the ‘90’s: Vermont students’ scores show up for only three years in mid-decade. Other absentee States, almost all Northern, range from Washington to New Jersey.

During the same time frame, the private-sector publishing industry (think McGraw-Hill and Harcourt Brace) saw student testing as a new profit center niche, and began designing tests to sell to State Education Departments; Vermont, for example, has at various times used the New Standards Reference Exam, the Vermont Developmental Reading Assessment, and most recently the New England Common Assessment Program, a commercially-sold product of private-sector corporation Measured Progress, Inc. One can speculate, but not prove, that these tests have been purchased (or not) on the basis of their design-intent to produce satisfactorily high student scores, worthy of publication in school district Annual Reports. Thus, the 2008 ACSU Report happily notes NECAP proficiency scores in the mid-60-pecent range and higher, nearly twice what the Federal NAEP scores report for the same universe of tested Vermont students. You won’t find the actual NAEP scores in State or local-district educational publications, but because of the nationwide pattern of States exercising their Rights to use easier tests, you will find, if you look, understandable Federal displeasure. As I noted in this space last week, the Feds have published a new report comparing the tougher NAEP’s with the easier State-preferred tests, but, States’ Rights still trumping real transparency (think State-by-State results comparability) the Fed’s can’t force the States to give up their preferred tests, which have the dual merits of a. being a lot easier and b. not being comparable with the results from the vast majority of other States which don’t use them. You can compare Utah with Vermont, for example, using the NAEP’s as published in the National Digest of Educational Statistics, but you can’t compare it using NECAP because Utah doesn’t. As FDR was reported to have said "nothing in politics happens by accident". Especially States’ Rights.
 

Martin Harris is a former Chairman of Citizens for Property Rights