Michael Heise, the Political Economy of Education Federalism

• Jurisdiction: United States,Federal
• Publication year: 2006
• Citation: Vol. 56 No. 1

THE POLITICAL ECONOMY OF EDUCATION FEDERALISM

Michael Heise^*

ABSTRACT

The No Child Left Behind Act represents the federal government's most significant foray into the nation's elementary and secondary public school policy-making terrain. Although the Act undertakes unassailable policy goals, its critics argue that it represents an unwarranted federal intrusion into education policymaking, generates unintended policy consequences, and amounts to an unfunded federal mandate. Constitutionalists dwell on the Act's threat to structural federalism because it may strain Congress's conditional spending authority. The coercive force that federal education funds exert on local school districts and states attracts particular attention. The No Child Left Behind Act, however, safely navigates through an even more rigorous conception of the coercion prohibition as articulated by the Court in South Dakota v. Dole. The Act, while coercive, is not unconstitutionally coercive as it imposes only an opportunity cost on states willing to forego federal funding. Although the No Child Left Behind Act does not violate the conditional spending doctrine as presently understood, from a policy perspective the Act generates important coercive force. Such policy coercion arises due to the unusually close nexus among various education policies, including student achievement, curriculum, standards and assessments, and finance. Understanding this crucial subtlety about the political economy of education federalism is one key to understanding the full, ongoing debate surrounding intergovernmental squabbles over education policy among federal, state, and local officials.

INTRODUCTION

For better or worse (or, more accurately, for better and worse), the No Child Left Behind Act of 2001¹(NCLB) represents a dramatic break from the federal government's traditional posture regarding policymaking for the nation's public elementary and secondary schools. NCLB's significance flows partly from its vast scope, which implicates every public K-12 school, regardless of whether a school receives Title I funding.²NCLB's cornerstone is an expansion of school accountability pivoting on determinations of adequate yearly progress for student academic achievement.³NCLB seeks the laudable goals of boosting student achievement generally and reducing, to the point of elimination, achievement gaps among various student subgroups.⁴

To remark upon NCLB's ambitiousness is to remark upon the obvious. To accomplish its broad statutory agenda, NCLB requires states to develop and self-impose challenging academic standards,⁵annually test students to assess progress toward state standards,⁶and gather and disseminate relevant information.⁷To facilitate progress toward these goals, NCLB also requires that states only permit "highly qualified" teachers to instruct in subjects they are qualified to teach,⁸and to verify qualifications of existing teachers.⁹To satisfy NCLB requirements, schools must demonstrate adequate yearly progress, or face increasingly onerous sanctions.¹⁰Finally, NCLB requires that all students demonstrate proficiency in various subject areas by 2014.¹¹

Although NCLB continues to generate both praise¹²and criticism,¹³all agree that it represents a significant-indeed, dramatic-departure from past federal engagement with K-12 education policy. Such a stark break inevitably places stress on current understandings of education federalism.

NCLB's abrupt departure from the prior allocation of education policy- making authority helps explain its increasingly strained reception by many governors and local school officials. Historically, the federal government's intersections with public K-12 schools focused on either specific types of schools, such as those predominately serving children from low-income households,¹⁴or discrete subpopulations of students, such as those with qualifying disabilities.¹⁵NCLB, by contrast, impacts all participating states and schools. By upsetting the education federalism status quo, NCLB generated substantial pushback on both the legal and political fronts. NCLB already has triggered at least two separate lawsuits challenging the Act on various grounds.¹⁶Thus far, neither lawsuit has succeeded.¹⁷On the political front, however, the prospects for challenging NCLB appear more promising. The Bush Administration, through its Department of Education, continues to find itself on the political defensive and is granting an ever-increasing number of waiver requests.¹⁸

Concurrent with (and, perhaps, related to) escalating intergovernmental jockeying for education policy authority among federal, state, and local officials, was the Rehnquist Court's "federalism revival."¹⁹A central component of former Chief Justice Rehnquist's judicial legacy, most observers agree, is the Court's imprint on federalism doctrine.²⁰The Rehnquist Court is remembered partly for taking structural federalism seriously, in particular state authority. For the Rehnquist Court, respecting state power often meant, in practice, reducing or limiting federal power. The Rehnquist Court's impulse in the federalism context traversed numerous fronts, ranging from the Commerce Clause²¹to Section 5 of the Fourteenth Amendment.²²

The combination of a growing federal commitment to K-12 education policy and an evolving federalism doctrine fueled intergovernmental jockeying over education policy and, as a consequence, generated important federalism questions. How to demark the boundaries of federal power and whether the political or judicial process should be entrusted to enforce federalism limits are questions that have occupied legal scholars for generations. The full panoply of such questions resides far beyond the scope of this Article. Rather, by focusing on one small subset of the many federalism questions that NCLB provokes, this Article considers NCLB as the catalyst for much of the present maneuvering for policy authority in the education setting and focuses on two distinct, though related, federalism issues.

First, this Article assesses NCLB from a standard constitutional perspective and concludes that it constitutes a permissible exercise of Congress's conditional spending authority under the Court's present interpretation of South Dakota v. Dole.²³The conclusion assumes that NCLB does not impermissibly coerce states and local school districts because its conditional spending is more persuasively characterized as reimbursable rather than as regulatory.²⁴Second, to conclude that NCLB represents a permissible exercise of congressional conditional spending is not conclusive of NCLB's potential to coerce. An analysis of the policy consequences stimulated by NCLB reveals important coercive dimensions better understood by a deeper appreciation for the political economy of education federalism. Specifically, recent and emerging changes by states and local districts involving standards and assessments, curriculum, and finance illustrate NCLB's consequential influence on state and local education policies. This influence arises due to NCLB's strategic focus on student achievement and the unusually tight nexus between student achievement and other critical education policies.

Even if my central claim is correct-that NCLB is coercive from a policy but not a constitutional perspective-important federalism questions persist. NCLB approaches but ultimately dodges a critical federalism question: whether to decouple education policy authority and funding responsibility. More specifically, NCLB invites us to consider whether, from a policy perspective, it is prudent to permit the federal government to exercise critical education policy influence beyond the extent of its financial contribution to states and local school districts.

This Article proceeds in four Parts. Part I briefly sketches the contours of the relevant education federalism terrain. A cursory examination reveals that efforts to find unambiguous boundaries demarcating the policy spheres for federal, state, and local actors in the education sector will likely generate more questions than answers. Simply put, the relevant constitutional texts and legal doctrine do not provide clear answers to critical questions involving the allocation of education policy-making authority. Moreover, consensus about helpful boundaries from a policy perspective does not yet exist.

The absence of clear education policy-making boundaries does not mean, however, that the entire field is lawless. Part II considers the standard constitutional framework for analyzing congressional exercises of Article I conditional spending authority. The constitutional framework, shaped by the Dole decision and as applied to NCLB, places significant stress on what is meant by federal coercion. The line between permissible inducement and impermissible coercion is notoriously vague and, perhaps as a consequence, federal courts appear reluctant to articulate any such line.²⁵As a result, NCLB appears to be a permissible exercise of federal authority.

Although NCLB is not unconstitutionally coercive in a conditional spending context, it nonetheless exerts important coercive force from a policy perspective. Part III illustrates this point by drawing on a few examples, including NCLB's impact on recent state and school district decisions concerning standards and assessments, curriculum, and finance issues. The coercive policy spillover from NCLB arises with particular force in the education sector due to the unusually close nexus among various critical policy variables and NCLB's authors' astute decision to pivot the Act on student achievement. The key to understanding these policy interactions is to appreciate the political economy of education federalism.

Important normative questions arise if NCLB is coercive from a policy rather than a constitutional perspective. Part IV briefly considers whether it makes sense to permit the federal government to strategically exploit the...