New Federalism, School Closings, and the Imperial Presidency: Will Conservatives Use the Concept of New Federalism to Challenge the Imposition of Education Policies?

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

In state houses and conservative think tanks lawyers and policy wonks are debating whether the Obama/Duncan education reform initiatives violate the Supreme Court New Federalism decisions.

 The primary objective of New Federalism, unlike that of the eighteenth-century political philosophy of Federalism, is the restoration to the states of some of the autonomy and power which they lost to the federal government as a consequence of the New Deal and federal civil rights laws of the 1960s. It relies upon a Federalist tradition dating back to the founding of the country, as well as the Tenth Amendment.

In the summer of 1787 the delegates to the Constitutional Convention debated how to divide power among and between the states and the federal government. The Constitution enumerates powers and the Tenth Amendment reserves powers “not delegated to the United States … nor prohibited by it to the states … are reserved to the states …”

For 200 years education was an example of a “power” reserved to the states. From teacher certification, graduation requirements, standards to school and school district governance the states were the determinant of policy.

In 1965 the Elementary and Secondary Education Act became law and under Title 1 of the law dollars, based upon a “poverty” formula, flowed to the states. Initially the law required that Title 1 dollars supplement, not supplant local dollars, and constrained the use to reading, mathematics and servicing ELL students. The law was latter amended and allowed schools to opt to fold the dollars into school budgets (School Wide Projects).

In 2003 No Child Left Behind, a bi-partisan law required states to establish steps, “adequate yearly progress (AYP),” with a goal of all students being on grade level by 2014. The law required that schools that failed to achieve AYP face sanctions that eventually required school closings.

The Obama/Duncan administration has moved much more vigorously to impose a host of federal policies. The acceptance of stimulus dollars require states to close, convert to charter or redesign/transform the lowest 5% of schools in the state. The Race to the Top application is actually a checklist of polices. The administration is attempting to embed these polices in the reauthorization of NCLB, or a “Plan B,” simply impose by tying to Title 1 funding, and, drastically changing the way Title 1 funds are distributed.

Do these policies violate the Constitution?

Ronald Reagan was a strong supporter of a philosophy that is referred to as “New Federalism,” a smaller federal government, Reagan tried to dismantle the Department of Education, arguing that education was a state function.

Congress passed the Gun Free School Zones law that made the possession of guns in the immediate vicinity of schools a federal crime. In 1995 the Supreme Court, in United States v. Lopez struck down the statute. The government argued that the statute was a regulation of “commerce” because guns could disrupt schools, hurt education, and result in an unproductive workforce in the national economy. The Court rejected the government’s argument, holding that such a broad interpretation of “commerce” would permit Congress to regulate almost every activity in the United States and would infringe on many areas traditionally of state concern.

Writing for the 5-4 majority Justice Rehnquist wrote,

To uphold the Government’s contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. See supra, at 8. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated, cf. Gibbons v. Ogden, supra, at 195, and that there never will be a distinction between what is truly national and what is truly local.

The Roberts Court has stepped cautiously, occasionally enlarging the “new federalism” concept and occasionally avoiding the issue. The Obama/Duncan policies are not laws that erode traditional powers of states, they are executive policies forced upon states without the imprimatur of Congress.

Abjuring billions in a period of extreme fiscal stress is not an option for states, and with the dollars come harsh strings. This is not uncommon in statutes, in return for dollars for repairing/building highways states had to accept a 55 miles per hour speed limit and adjust their state laws. The Obama/Duncan education edicts move another step, from a statute imposing stringent requirements in exchange for cash to a long list of severe requirements, without Congressional approval, requiring the closing of schools, in exchange for dollars.

The current political climate, much more bi-polar than bipartisan may very well lead the opponents of the Obama administration to seize upon education as an arena to challenge a president, unable or unwilling to follow the legislative route, who utilizes dollars as a policy imposition weapon.