Tough Call: Is No Child Left Behind Constitutional?
McColl, Ann, Phi Delta Kappan
Control over education is a power that the Constitution reserves for the states, not the federal government. But, for the reasons Ms. McColl explains in this article, answering the question she raises in the title is not such an easy matter.
THE No Child Left Behind (NCLB) Act, the 2001 reauthorization of the Elementary and Secondary Education Act, has become a symbol of all things good and bad in education. While the basic concepts of the legislation -- accountability for results, research-based education programs, increased parental options, and expanded local control and flexibility -- have wide support, some critics have argued that NCLB has failed to deliver.1 Others have focused on how best to implement its provisions.2 Although this scrutiny of the requirements and outcomes of NCLB is crucial to the policy debate, the law has largely escaped a more fundamental review, and answers to the following questions are needed: Has Congress overstepped its legal authority with No Child Left Behind? Is NCLB a constitutional exercise of congressional power, or does it infringe on states' rights? What is the role of the U.S. Department of Education (ED) in addressing ambiguities in the law? Answering these questions requires a close examination of federalism as it is expressed in the U.S. Constitution and interpreted by the U.S. Supreme Court.
The call to examine the law in this light comes with a warning: reaching conclusions about whether Congress acted within the limits of its constitutional authority may cause some discomfort. "Liberals" may find their customary inclination to favor a more expanded role for the federal government to be in conflict with their concern about the substance of NCLB. "Conservatives" may similarly find their general bias in favor of states' rights to be in conflict with their support for the accountability and school-choice elements of NCLB. And if the courts ignore, as they should, both the politics surrounding NCLB and its education reform goals, the results of a legal challenge could be interesting, indeed. A conservative Supreme Court may ultimately conclude that President George W. Bush's education agenda exceeds constitutional bounds.
Is There Constitutional Authority for NCLB?
There is little dispute over whether NCLB represents an unprecedented level of federal involvement in the affairs of our public schools. However, there is disagreement between the law's supporters, who hail this federal intrusion into state and local education as effective national reform, and its detractors, who argue that the intrusion consists of a set of politically motivated mandates that are detrimental to our schools. The language of NCLB speaks to the sweeping authority intended by its passage: "The purpose of the title is to ensure that all children have a fair, equal, and significant opportunity to obtain a high-quality education and reach, at a minimum, proficiency on challenging state academic achievement standards and state academic assessments." To accomplish this, NCLB sets extensive requirements for states, including establishing an accountability system and staffing schools with high-quality professionals.
This level of federal intrusion into a domain typically under state control raises legal questions because Congress must act within the limits of federal authority established by the U.S. Constitution. The Constitution reflects a careful balance between the powers of the federal government and those of the states. James Madison argued, "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite."3 The Constitution defines this balance in the 10th Amendment: "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."
Past court decisions, most notably San Antonio v. …