Opts Outs and the Tenth Amendment: Will the States and Localities Make Better Education Decisions Than the Federal Government?

“Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.” (Articles of Confederation)

“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.” (Tenth Amendment to the Constitution).

In April of 1787 fifty-four Americans, plantation owners and small farmers, slave-holders and abolitionists, large states and small states began their slog to Philadelphia and the Constitutional Convention. The fledgling nation was struggling, the form of government, a loose, a very loose confederation of the thirteen former colonies had no common currency, no banking system, no army and couldn’t even pay the troops that fought and won the war for independence.  For most the trip with not with enthusiasm, previous efforts to amend the Articles of Confederation had stumbled badly; however, Hamilton, Madison and Washington had a plan, not to amend the Articles, to create a new document, a Constitution.

After a contentious summer, the factions carved out a founding document that divided powers and responsibilities among the executive and legislative branches and the states. The new constitution was silent on slavery. Abolitionist William Lloyd Garrison called the constitution “a covenant with death” and an “agreement with Hell.” (See Paul Finkelstein, Slavery and the Founders: Race and Liberty in the Age of Jefferson, 2001).

For the next seventy years the nation grappled with the issue of slavery seen through the lens of states’ rights versus federalism, concluding in the civil war.

The pendulum swung to the concept of federalism as the 13th, 14th and 15th amendments ended slavery, made slaves citizens and granted them the right to vote.

14th Amendment, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

With the end of Reconstruction the former confederate state replaced slavery with peonage, the passage of the Jim Crow laws, statutes supported time and time again by the Supreme Court.

The pendulum had swung to the states.

It wasn’t until 1967, almost a hundred years after the Civil War that the Supreme Court overturned a Virginia law that had made interracial marriage a crime.  The judge in the lower court ruled, “Almighty God created the races white, black, yellow, Malay and red, and he placed them on separate continents…. The fact that he separated the races shows that he did not intend for the races to mix.”

In a unanimous decision Justice Warren overturned the decision and ruled the Virginia law unconstitutional,

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law … There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.

In the arena of education states have vigorously defended their 10th Amendment rights including their right to racially segregate schools.  Brown v Board of Education (1954) may have ended outright, legal segregation; however, the laws in the fifty states and 16,000 school districts have embedded sharp disparities: in courses of study, graduation requirements, in funding of schools, in requirements for teachers, the assessment of student and teachers, all left to the discretion of the states; that is, until the Obama administration decided to challenge the independence of the states in making education decisions.

The Common Core State Standards (CCSS) are actually national standards created by the National Governors Association (NGA) and adopted by 46 states. The feds dangled $4.4 billion in competitive grants if states adopted the CCSS, a student test-score based teacher evaluation system, charter schools, aka choice and joined one of the two national testing consortia – Smarter Balance or PARCC.

The Executive Branch had managed to abrogate the Tenth Amendment and set the national education agenda.

Six years later the Obama education agenda is in tatters.

States are increasingly reclaiming the authority to make educational decisions.

The impact of CCSS is waning, the testing consortia have fewer and fewer customers, and parents around the nation are rejecting the core of the Obama plan – annual testing.

Even Tom Kane of Harvard, an avid supporter of the Obama policies, agrees the “proxy war” has curtailed the power of the feds “(For state leadership the common core is a boon“).

Over the past few years, the Common Core State Standards have been embroiled in a proxy war over the role of the federal government in education. To those most protective of state and local prerogatives, “common” became a synonym for “federal.” Perhaps now that the Every Student Succeeds Act has settled that fight by curtailing the federal role, and the Common Core State Standards are now just the state standards, policymakers can recognize that the common standards and assessments are not antithetical to states’ rights after all.

Kane’s argument, we lost the “war,” now let’s get on with it, is foolish, testing is being rejected by parents, teachers and state legislatures in increasing numbers.

An Education Week article (“Common Core: Is Its Achievement Impact Starting to Dissipate?) reports,

According to this year’s Brown Center Report on American Education, 4th and 8th grade students in states that adopted the Common Core State Standards outperformed their peers on the National Assessment of Educational Progress between 2009 and 2013. But between 2013 and 2015, students in non-adoption states made larger gains than those in common-core states.

Not only is the impact of the Common Core waning, the very heart and core of the initiative, testing, is under vigorous assault.

Jim Popham, the past president of the American Education Research Association, by implication, chides Kane and the testing crowd (“The Fatal Flaw of Education Assessment

America’s students are not being educated as well these days as they should be. A key reason for this calamity is that we currently use the wrong tests to make our most important educational decisions. The effectiveness of both teachers and schools is now evaluated largely using students’ scores on annually administered standardized tests, but most of these tests are simply unsuitable for this intended purpose.

What’s most dismaying about this widespread misuse of educational tests is that many educators, most policymakers, and almost all parents of school-age children do not realize how these tests contribute to diminished educational quality.

The opt out parents are an example of the Wisdom of Crowds (“The Wisdom of Crowds: Why the Many Are Smarter Than the Few and How Collective Wisdom Shapes Business, Economies, Societies and Nations,” 2004) “… the aggregation of information in groups, resulting in decisions that … are often better than could have been made by any single member of the group.”

The Obama administration felt that states were shortchanging children, and, imposed a range of policy decisions, Common Core, accelerated testing, teacher evaluation, etc.,  that have been rejected many parents and teachers.

The President chose the wrong battle.

The disparities in funding may be just as horrendous as the criminalization of interracial marriages. In New York State (” … 100 wealthiest districts [in NYS] spent on average more than $28,000 in state and local funding per kid in 2012, the 100 poorest districts in the state spent closer to $20,000 per student”) as well as too many other states and school districts; the poorest children receive the least funding and the richest children the highest amount of dollars – school taxes based on property values.  The schools in inner city Detroit are falling apart while suburban schools area well-funded. The disparity in funding between the wealthiest and the poorest districts is $250,000 per class.

The newly passed Every Student Succeeds Act returns wide discretion to the states; the opt out movement is part of the swing of the pendulum away from Washington. Will the states and localities, the opt out parents, influence/create better decisions?  Will students of color, English language learners and students with disabilities be at the center of creating more targeted policies or will state simply satisfy the anger of white, suburban parents? Will the new President be a federalist or a states’ rights/smaller government aficionado?

Which way will the pendulum swing?

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