The Constitution and the Supreme Court’s Interpretations

The Framers created a limited federal government.  This means that, unless the Constitution delegates a particular power to the federal government, that power is “reserved to the States respectively, or to the people.”  Education policy-making is not one of the delegated powers of the federal government.

So how does the federal government get around that limitation?  It relies on Supreme Court case-law interpretations holding that the federal government can condition the receipt of federal money on whether a state adopts a particular policy.  See, e.g., U.S. v. Butler, 297 U.S. 1 (1936); Steward Machine Co. v. Davis, 301 U.S. 548 (1937).  Through that carrot-and-stick approach, the federal government holds out cash to the states as a lure for the states to abdicate their decision-making and, most importantly, the will of their citizens.


State Budgets

State Government Tricks the People with a Sleight-of-Hand

The federal government lures the states with quick cash.  In return for the money, it often requires the recipient states to make certain policy changes.  As a general measurement, the federal government provides about ten percent of a state’s education funds.  By tying that money to policy, the federal government exerts enormous influence over a significant piece of the policy-making pie.

The federal government exploits another systematic weakness in the states.  The federal government pays the states funds (tied, of course, to policy changes), which seemingly help the states on their budget bottom-lines.  However, the strings tied to the federal money often require the states to spend money in subsequent years.  Because most states operate on one- or two-year budgets, the full fiscal impact of the federal money is not part of the political discussions in the states.  Such fiscal irresponsibility is one of the many negative consequences of the Race to the Top program and Common Core Standards Initiative.



Federal Statutes

Elementary and Secondary Education Act (ESEA):

  • ESEA is the most far-ranging federal statute and first became law in 1965 as part of President Johnson’s “War on Poverty”.
  • Congress originally intended EASA as a block-grant (cash payment with relatively few strings attached) funding mechanism so that poor localities would have comparable education funding with wealthier communities.
  • ESEA banned federal authorities from mandating or directing education policy, which was considered the domain of the states and the people and explicitly prohibited any establishment of a national curriculum.
    • These prohibitions have remained in all subsequent reauthorizations of ESEA including the No Child Left Behind Act.
  • The Act must be periodically “re-authorized” (re-enacted) by Congress.
  • Increasingly, ESEA began to push desired policy by tying funding to certain desired outcomes.


ESEA Reauthorizations – No Child Left Behind (NCLB)

“No Child Left Behind” (NCLB) is the name attached to the ESEA re-authorization, co-sponsored by Senator Edward Kennedy, that President Bush shepherded through Congress and signed into law in 2002.  With respect to education policy, NCLB changed the status of states from being state sovereigns to essentially having a de facto contracting relationship with the federal government.  States receive money from the federal government and, in return, have to produce certain results for the federal government.

Because public education has been, under American tradition and the Framers’ intent, a matter of local control, the NCLB had the effect of centralizing education.  In order to comply with the federal scheme, states had to move power and authority away from parents and localities and centralize it with state bureaucracies so that they could be responsive to the federal government’s grant (or contract) demands, as opposed to the demands of parents.  NCLB required:

  • State-created centrally-managed academic standards, thus substantially changing the American tradition that education decision-making is a matter for parents and localities
  • Administration of state-wide standardized tests every year by all public schools receiving federal funding
  • Federal determination of a school’s effectiveness based on the results of state’s standardized test
  • Implementation of school level changes if a school fails to show “Adequate Yearly Progress (AYP) for two or more years based on the results of the standardized test:
    • Schools that do not show AYP for a second consecutive year must develop a two-year plan.  Students in that school are given the option to transfer to another school in the school district.
    • Missing AYP in the third year requires the school to offer free tutoring and other supplemental education services to struggling students.
    • If a school misses AYP for a fourth consecutive year, the school governing authority must institute “corrective actions” such as the wholesale replacement of staff, introduction of new curriculum, or extending students’ class-room time.
    • If a school misses AYP for a fifth consecutive year, the governing authorities must develop a plan to restructure the entire school and then implement that plan if the school fails to show AYP for a sixth year.  Restructuring options include closing the school, turning the school into a charter school, hiring a private company to run the school, or having direct administration by the state department of education.