A New York Times front-page story today by Motoko Rich asks whether No Child Left Behind has been “essentially nullified” by the Obama administration in the face of inaction from a divided Congress.

While it’s true the administration has offered more than half the states waivers freeing them from a central provision of the law—that schools that do not achieve universal academic “proficiency” by 2014 be labeled as “failing” and subject to state intervention—it would be too simple to conclude NCLB is no longer a potent force in American public education. For starters, the law’s best innovation remains in place, requiring schools and states to break out achievement numbers by race, socioeconomic status, English-language learner status and special-education status, so we can all grasp exactly how big achievement gaps actually are. And the law’s most controversial feature—its reliance on standardized test scores as the most powerful marker of school success—has actually been doubled down on by the Obama administration, which has used the NCLB waiver process and its Race to the Top grant program to push states to tie teacher evaluation and tenure to student test scores. (As Rich notes, under the original NCLB test scores were used to shame schools, but not individual teachers.)

What’s more, the NCLB waivers don’t fundamentally change schools’ and states’ relationship to the federal Department of Education, because the under-funded law never provided a way for districts, states, or Washington to sanction supposedly “failing” schools. About half of all American schools are “failing” according to the terms of the law, yet there was no chance budget-crunched states could have effectively intervened in that many schools, or provided all those tens of millions of students with education alternatives. In fact, only about 1 percent of eligible families were able to take advantage of NCLB’s dictate that children in underperforming schools be allowed to transfer to better schools within their districts. There were no consequences whatsoever for the districts and states unable to deliver on this promise, or many of the others contained in the Pollyannish law.

For more analysis of the weakening of the bipartisan consensus in favor of the original NCLB, read my Nation essay here.