Academic journal article Journal of Law and Education

Federal Demand and Local Choice: Safeguarding the Notion of Federalism in Education Law and Policy

Academic journal article Journal of Law and Education

Federal Demand and Local Choice: Safeguarding the Notion of Federalism in Education Law and Policy

Article excerpt


During the last decade, federal involvement in education law has drastically shifted its focus to academic achievement- a realm historically the domain of local education agencies.1 The modern school reform movement has been shaped by both a strong nationwide desire to ensure equitable access to education2 and a series of successful lawsuits that provoked increased state involvement in issues of educational access and accountability.3 These issues of access and accountability were guiding principles behind the most recent iteration of the federal Elementary and Secondary Education Act of 1965 (ESEA) -the No Child Left Behind (NCLB) Act.4

Like most federal grant programs, NCLB followed the classic paradigm of cooperative federalism.5 Yet, in its implementation, the safeguards that exist to preserve local control were often poorly defined or inconsistent; in fact, NCLB obfuscated the appropriate federal and state roles in enforcing federal education law and policy, especially the role of federal government in legislating and enforcing policy it does not fund entirely.6

Educational achievement continues to be at the forefront of the nation's consciousness;7 consequently, the era of federal involvement in academic achievement and accountability NCLB introduced is unlikely to end soon. As the ESEA undergoes its next transformation under a new presidential administration, this article explores the appropriate federal and state roles in promoting and enforcing laws related to academic achievement and the appropriate judicial role in interpreting them. Part II of this article discusses the politics and litigation that helped shape the evolution of the modern federal role in education law and policy. Part III explores the drastic changes No Child Left Behind brought to education federalism through the lens of cooperation, coercion (enforcement), and competition. It then analyzes both the role of the executive branch in enforcing educational access and achievement and the appropriate role of the courts in adjudicating issues of education law and policy.

Finally, Part IV provides recommendations that are likely to result in a more workable model of accountability by suggesting clearer boundaries related to the federal and state roles in the effort to improve the nation's academic achievement. This new model of accountability uses national assessment and reporting requirements to shift much of the enforcement responsibility of the Elementary and Secondary Education Act to the states while leaving local districts room to experiment with educational approaches. It also sets forth parameters that allow for general federal oversight of national education policy while respecting the boundaries integral to cooperative federalism.


The current federal role in education law and policy can be largely attributed to the last sixty years of education-related reform and litigation. The courts first addressed access to education as a civil rights issue in the 1950s when Brown v. Board of Education8 and its progeny highlighted education as critical to opportunity.9 During the same decade, the space race with the Soviet Union raised national concerns about the United States' ability to compete internationally and highlighted the importance of education as critical to ensuring the country's continued ability to be a world power.10 Consequently, President Eisenhower and Congress supported the National Defense Education Act of 1958, which directed federal money to improve math and science programs in secondary schools.11 The Civil Rights Act of 1964 increased the federal commitment to providing the poor access to education12 and led to President Johnson's signing into law the Elementary and Secondary Education Act of 1965.13 At the core of this Act was- and still is- Title I, a grant that provides supplemental federal aid to economically disadvantaged children and provided the statutory basis for early special education funding. …

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