Positive Education Federalism: the Promise of Equality After the Every Student Succeeds Act

• Citation: Vol. 68 No. 2
• Publication year: 2017

Positive Education Federalism: The Promise of Equality after the Every Student Succeeds Act

Christian B. Sundquist

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Positive Education Federalism: The Promise of Equality after the Every Student Succeeds Act

by Christian B. Sundquist^*

Introduction

The accepted narrative of the American public education system is one of decline, educational "crisis,"¹ and systemic failure. Our public schools increasingly are segregated by race and class in the post-Brown, era,² while fundamental social inequalities persist among schools in regards to educational quality, financing, and outcomes. Long viewed as essential to the economic and democratic development of America's citizenry, our unequal system of universal public education has forsaken the "faces at the bottom of [the] well" in an era of deregulation and decreased social welfare funding.³

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The federal government previously responded to the failure of Brown's promise of equal educational opportunity by introducing legislation—the No Child Left Behind Act of 2001 (NCLB)⁴ and the Race to the Top Act of 2009 (RTT)⁵ —that promoted educational reform informed by the classic market principles of consumer choice, competition, and accountability. Under this schema, the failure of America's public schools could be traced to an overregulation of education that has promoted bureaucratic stasis, ineffective teaching, and unaccountability at the cost of the individual liberty of parents and children to attend the school of their choice. The role of the federal government, then, was to utilize its fiscal block grant-in-aid powers to cultivate the private and market-based properties of public education.

The well-documented failures of the NCLB and RTT to promote student achievement, much less equality in education, led Congress to pass the Every Student Succeeds Act in December of 2015 (ESSA).⁶ The bipartisan ESSA has been hailed by both liberal and conservative education reformers for not only superseding the much-reviled NCLB and RTT framework, but also for shifting control over certain aspects of public education policy to state and local actors.

The new education act nonetheless largely leaves untouched the substantive framework of NCLB and RTT. The ESSA retains the core focus of the past education framework in its continued emphasis on promoting student achievement through consumer choice, accountability, high-stakes testing, and inter-school competition. If anything, the ESSA has broadened the market-based approach of federal education policy by shifting the responsibility for employing corporate measures of accountability to states (themselves serving as "laboratories of experimentation" subject to market demands).

And yet the crisis of America's system of public education is less a manifestation of under-incentivized schools, inadequate school choice, and poor teaching, than it is a reflection of unrelenting poverty and persistent racial discrimination. The modeling of education policy and law around the oft-criticized market assumptions of consumer choice, competition, and accountability have led to a deepening of the crisis confronting public schools. Since the adoption of market-based education legislation

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such as NCLB and RTT in the last ten years, our public schools have been re-segregating at an accelerated rate and the achievement gaps between the rich and poor, and white and non-white have deepened.⁷

The market model of public education preserved through the new ESSA legislation does not provide answers to our current educational dilemma, but the model merely deflects the responsibility of providing an equitable public education from the public sphere of federal and state government to the private sphere. There are no easy answers to the public school crisis, and simply incorporating misplaced assumptions of competition, rational choice, and market accountability into public educational policy will not resolve the situation. We need to acknowledge that our school failures are not due to the absence of market incentives and processes in education, but are caused by systemic social inequalities—including poverty, racial discrimination and segregation, unequal school financing, and inadequate teacher compensation.

On the heels of the recent passage of the ESSA, this Article examines the appropriate federal role in developing and enforcing public educational policy and law. "Our federalism"⁸ demands not only that there be an appropriate balance between state and federal power when evaluating the constitutional feasibility of new laws, but also that there remain a sufficient demarcation between the public and private spheres of regulation. This Article argues that the existing market-oriented statutory approach to public education, as embodied by the ESSA, fails to advance the values of education federalism by encouraging the penetration of private market forces into the traditionally public sphere of universal education.

Part I of this Article explores traditional conceptions of federalism as a negative limit on the executive, legislative, and judicial power of the federal government. This section identifies the core values associated with such conceptions of "negative federalism," while criticizing negative models as unprincipled and indeterminate. Part II examines the civic model of public education that pre-dated current education policy, while charting the historical expansion of the federal role in public education. This section argues that the values informing the Elementary and Secondary Education Act (ESEA),⁹ as influenced by the Brown v. Board of Education¹⁰ United States Supreme Court decision, recognize the important governmental role in maintaining educational equality. Part III

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analyzes the current federal role in public education under the traditional negative model of federalism. This section argues that a competitive view of federalism has come to influence public education policy in the modern era, whereby the appropriate role of government has come to be seen as one that promotes market competition. As a result, the original de-segregative and equalizing dimension of education federalism envisioned by the ESEA and Brown has been forsaken. Finally, Part IV advances an alternative positive conception of education federalism, which stresses the obligation of the federal government to address failures in the system of public education in a manner that accords with principles of social justice and democratic equality. This section then develops substantive policy principles to guide future reauthorizations of federal education law.

I. On Federalism, State Sovereignty, and Individual Liberty

The development of the American system of federalism has been influenced by constitutional structure, judicial interpretation, and political advocacy. Our Constitution establishes a federalist system of governance, with the country's constitutional responsibilities towards its citizens divided between a single national government and multiple state governments. At its most basic and descriptive level, the concept of American federalism is thus quite easy to understand: it refers generally to a theory of political governance that divides power between a large, centralized state and smaller, localized political units.

The inherent complexity of federalism becomes apparent, however, when one attempts to define the boundaries of power between the central government and its constituent states. An array of legal and political theories have been advanced to resolve questions regarding the appropriate federal and state roles in dealing with social problems such as public education, including the concepts of cooperative federalism, dual federalism, and competitive federalism. While quite different in many respects, an important common feature of traditional theories of federalism is that they prescribe a negative vision of the limits and boundaries of government action. The concept of federalism, then, is most often invoked to provide a constitutional basis for limiting the ability of one level of government (typically the federal government) to respond to matters of great social concern.

A. Traditional Theories of Federalism

A variety of related visions of negative federalism have impacted the development of public education policy. The theory of dual federalism

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resounds in much of the Supreme Court's jurisprudence, and dual federalism is invoked principally to invalidate federal legislative action¹¹ and prevent federal judicial review of alleged constitutional deprivations.¹² This conception of federalism stresses the independent sovereignty of states as a constitutional barrier to certain federal actions. Under this view of the zones of state and federal sovereignty, state governments occupy an exclusive sphere of authority that is completely independent from that of the national government. Justice David Brewer described such an approach to federalism:

We have in this Republic a dual system of government, National and state, each operating within the same territory and upon the same persons; and yet working without collision, because their functions are different. There are certain matters over which the National Government has absolute control and no action of the State can interfere therewith, and there are others in which the State is supreme, and in respect to them the National Government is powerless. To preserve the even balance between these two governments and hold each in its separate sphere is the peculiar duty of all courts . . . .¹³

Dual federalism dominated the rights-restrictive jurisprudence of the early twentieth century Supreme Court before losing ground to a broader conception of the federal government's authority to regulate under the Commerce Clause¹⁴ during the progressive era of the New Deal. The Supreme Court shifted its view of federalism during the New Deal era from one characterized by strict...