With American students back in their classrooms, Congress who will face one of the most serious tests in education. Come 2007, the No Child Left Behind Act of 2001 will be up for reauthorization and the solons will have to pick which parts of President Bush’s signature school reform they like, which they don’t, and what additions to make. It’s too soon to say what will end up in the bill, but it’s not too early to develop a wish list.

Expanding parental choice tops that list, and New Yorkers will be paying especially close attention to the treatment of charter schools. Charters are largely a local issue, and states have wide discretion in how to regulate them, but there are some steps lawmakers in Washington can take. There may be ways for Congress to induce an intransigent legislature in Albany to lift the cap on the number of charter schools allowed in the state.

Charter schools have been enormously successful since they were first allowed to open in New York, as attested by the long lines of parents, especially in the city, who vie for spaces for their children. Yet one of the constraints on availability of those spaces is that only 100 charter schools are allowed to open in New York, of which up to a scant 50 can be in the city. And even that may be an overrepresentation. As our Sarah Garland reported yesterday, the Board of Regents has interpreted the law as meaning that even if a charter school closes it still counts against the limit. So only 92 charters are available to a city and state in crisis.

While parents and charter advocates have been rebuffed by a legislature beholden to teachers’ unions, Congress could try using the power of the purse. The federal government already devotes several pots of money to charter schools. A grant program offers funding to schools during the planning period of up to a year before they actually open their doors and start receiving operating support. A separate pilot program has been helping charter schools across the country to find and maintain facilities. This is especially important in inner cities like Harlem and Brooklyn where charters are needed most.

One charter advocate to whom we’ve spoken suggests that simply by expanding these two programs, Congress could create more pressure on Albany. Legislators would be faced with the prospect of giving up on a steady stream of federal money that would go instead to cities like Detroit. Congress could also decide to condition all federal education aid to a state on the state’s willingness to allow an unlimited number of qualified charters. This may sound radical, but the central logic behind No Child Left Behind was that parental choice is good, and the law featured public school choice options for parents of students trapped in some failing schools. The law has never lived up to that promise. Students must languish in failure for too long while schools try to “catch up.” And choice options are structured in such a way as to be illusory for many students.

By requiring all states to grant an unlimited number of charters to qualified applicants, Congress could return No Child Left Behind to the kind of law Mr. Bush had in mind before Senator Kennedy got his hands on the project in 2001. Such a provision would also unleash local educational innovators like Chancellor Klein who have grasped the importance of charters to education reform but have been hampered by union lackeys in the legislature in Albany. Congress is insulated from the political pressures that have kept Albany from expanding charters. It could use that to the advantage of New York schoolchildren.