Education Law and Federalism: Moving Forward

Education Law and Federalism: Moving Forward

It’s official: the era of No Child Left Behind is over. President Obama announced a program last Friday that will allow states to get out of many of the requirements of the act: Education Secretary Arne Duncan is going to start waiving states’ compliance in exchange for agreeing to a specified set of reforms. This new policy highlights many of the important developments in American education law from the past few years. Three of them in particular stand out:

1. Congress takes forever to get things done. Okay, so this one isn’t new, or surprising. But this fact is particularly striking in the case of NCLB. Laws are generally authorized for a relatively short time––five or six years in the case of the major education laws––and then have to be reauthorized by Congress. Back in 2001-02, for example, Congress reworked the Elementary and Secondary Education Act of 1965 (ESEA) and reauthorized it as No Child Left Behind. But NCLB was supposed to be reauthorized four years ago. Since 2007, Congress has been passing routine stopgap bills to continue the existence of the act until it can get around to actually reauthorizing it. Only in the past few months have the relevant committees begun considering legislation to replace NCLB, with House Republicans passing piecemeal bills through the Education and Workforce Committee on mainly party line votes and the Senate Health, Education, Labor, and Pensions Committee working to develop a comprehensive reauthorization bill. In 2002, President Bush and Congressional Republicans reached across the aisle to work with Democrats, and it showed: NCLB passed the House 384-45 and passed the Senate 91-8.[1] Now, the partisan rancor surrounding reauthorization, combined with the fact that each party controls one house of Congress, means that NCLB might not be reauthorized for a while yet. This Congressional gridlock is the reason why President Obama and Secretary Duncan want to provide the waivers in the first place.

2. The executive branch has gotten a lot more room to maneuver on education policy. Secretary Duncan is able to issue these waivers because of a provision in NCLB allowing the Secretary of Education to waive many of the requirements of the law if he or she believes that it will improve instructional quality and increase academic achievement.[2] Congress does not have the time or the political space to determine details, so it tends to cede a great deal of power to the executive branch to work out how to enact its general policies. This has, in the realm of education in particular, given the Obama administration an unprecedented ability to craft policy on its own terms. The waivers are just the latest example. The 2009 stimulus package included approximately half a page of statutory language authorizing the creation of “state incentive grants”;[3] this half-page became the $4.5 billion Race to the Top (RTT) program, which has revolutionized the education reform movement by pushing the states to adopt drastic changes to their standards and their systems of accountability. The administration has also been active in encouraging the National Governors Association in its initiative to create a Common Core of state education standards. Adoption of the Common Core––and the common assessments that would logically follow––made up 14% of the possible points states could earn when being judged in the RTT competition.[4] This strategy seems to have worked: so far, 44 states and the District of Columbia have signed on.[5] The NCLB waivers the president announced require states to meet criteria similar to those of RTT, further asserting the executive’s prerogative in federal education policy.

3. The federal government has become more heavily involved in education. Prior to the Great Society, the federal government had almost no role in education policy. The desire to equalize opportunity for minorities has led to federal involvement in the funding of education, but even today federal dollars make up only 10.8% of elementary and secondary education funds.[6] Nevertheless, Washington has found ways to make even this relatively small percentage do a great deal of work. The Supreme Court has limited the extent to which the federal government can compel states on school matters through the Commerce Clause––see U.S. v. Lopez (1995).[7]
But South Dakota v. Dole (1987) affirmed Congress’ authority to attach reasonable conditions to the money it metes out to the states; so in certain areas where it would be unconstitutional for Congress to place a mandate on the states, it can achieve the same goals through financial incentives. This has proved to be particularly potent in the education field, as Congress has been able to threaten states with the removal of federal funds for poor schools if they do not institute specified reforms. This is the basis on which NCLB is founded. Now, because the Obama administration is using criteria similar to those of the RTT competition to award NCLB waivers, it is expanding the federal reach even further: although it appears to be giving states more authority by allowing them to formulate their own accountability systems, by tying the RTT criteria to the NCLB regime the administration is able to leverage its Title I funding to achieve its reform goals to a greater extent than was possible through the initial RTT competition.

Footnotes    (↵ returns to text)
  1. For the House vote, see For the Senate vote, see
  2. Section 9401 of the NCLB:
  3. See Section 14006 of the American Recovery and Reinvestment Act:
  7. The most relevant passage from U.S. v. Lopez is the following, from the majority opinion: “We do not doubt that Congress has authority under the Commerce Clause to regulate numerous commercial activities that substantially affect interstate commerce and also affect the educational process. That authority, though broad, does not include the authority to regulate each and every aspect of local schools.”

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