Academic journal article Harvard Law Review

No Child Left Behind and the Political Safeguards of Federalism

Academic journal article Harvard Law Review

No Child Left Behind and the Political Safeguards of Federalism

Article excerpt

Well, I have to admit it, I voted for that awful education bill.... I came here to eliminate the Department of Education ... so it was very hard for me to vote for something that expands the Department of Education.... But this is one of [the President's] big agenda items.... I did not want to be the person--and I have people who follow me--to keep it from going on.

--Then-House Majority Whip Tom DeLay, on the No Child Left Behind Act (1)


When Margaret Spellings was sworn in as Secretary of Education one year ago, she proclaimed that President Bush's No Child Left Behind Act of 20012 (NCLBA) demonstrated the federal government's passion for education reform and vowed to "stay the course" in implementing the law's mandates. (3) By all accounts, Secretary Spellings had her work cut out for her. Upon her accession to office, legislators in more than twenty states had introduced bills demanding the relaxation of NCLBA requirements, individual exceptions to those requirements, or enhanced federal funding for education. (4) At least three states considered opting out of the federal education program entirely. (5) And, within weeks of Secretary Spellings's confirmation, a task force of the National Conference of State Legislatures issued a report deeming the law unconstitutionally coercive. (6)

All that talk, however, seemed just that--talk. Four years after the Act's passage, and with many states continuing to complain about its stringent requirements, not one state had made good on its threat to walk. Of course, as legislation enacted pursuant to the federal government's spending power, the NCLBA did not bind states that chose not to accept federal education money--but no state treated this optional law as very optional. As such, the NCLBA effected a substantial and not uncontroversial power grab of education policy from the states.

Given the ineffective resistance and ultimate power grab, this Note asks two questions: First, did the members of Congress who actually crafted and approved the NCLBA consider states' rights and interests in the first place? And second, since the NCLBA was not actually forced on the states, how realistic was their opportunity to resist its mandates? Using the lens of the NCLBA and education policy, this Note's concern is thus with how well the political safeguards of federalism work to preserve traditional realms of state authority. While the Supreme Court has partially retreated from its 1985 decision that the political process bears substantial responsibility for sorting out the proper balance of federal and state authority, (7) political safeguards remain important--especially in the context of spending legislation, given the limited judicial check on such federal-state "contracts."

The NCLBA provides an ideal vantage point from which to examine political safeguards--both in general and from a spending perspective--because it marks a substantial federal incursion into an area typically monopolized by the states. This Note, unconcerned with the constitutionality of the Act, instead examines whether before performing that incursion members of Congress engaged the merits of the federalism debate with concern for the traditional structure from which they were departing. Unfortunately, this Note concludes that legislators voted to approve the NCLBA regardless of its federalism ramifications and, for some, in spite of their belief that it offended the proper balance of government authority. More generally, this Note concludes that the political process offers legislators myriad incentives to disregard the impact of their actions on our federal structure.


A. The Requirements

The NCLBA builds off of the 1994 reauthorization (8) of the Elementary and Secondary Education Act of 1965 (9) (ESEA), a federal law defined largely by Title I and its focus on lessening the disparities in academic performance between poor and wealthy schools. …

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