As a follow up to my earlier post with a concise history of the federal role in education, I’d like to share another portion of my paper about applying theories of federalism to education reform. The full text can be downloaded at SSRN. Here’s my thoughts on modern theories of federalism as applied to No Child Left Behind (NCLB), with footnotes omitted, as appears on pages 91 to 94 of An Increased Role for the Department of Education in Addressing Federalism Concerns, 2012 BYU Educ. & L.J. 79 (2012):
Under a conventional viewpoint of federalism, NCLB is a federal encroachment into a traditionally state realm. But the federal role in education shows no signs of decreasing, so new theories are needed to explain and analyze this unique federal and state collaboration.
NCLB could just be a sign that federalism is obsolete in America. This contention has been made by Professors Malcolm Feeley and Edward Rubin, who suggest that federalism is merely a tool for political compromise. According to them, America now has a strong national identity and the states do not hold strong distinct values, so federalism is no longer necessary. Although they recognize federalism won’t disappear any time soon, Feeley and Rubin suggest that education is an area where national standards may be particularly appropriate, as highlighted by the recent initiative of the National Governors Association to establish uniform national education standards. Feeley and Rubin point out that people promoting “state rights” often use federalism arguments to obscure their true objectives–whether they are preserving parental control, promoting school experimentation, or avoiding federal bureaucracy–when it would be better to debate these underlying policies directly.
Instead of arguing federalism is obsolete, Professor Erwin Chemerinsky argues for an augmented theory of federalism as empowerment. He contends that the genius of federalism is giving multiple actors power to address society’s ills. He suggests that federal and state governments should vigorously and simultaneously try to reform education, with little restraint from courts. He also argues that, to empower states, the preemption doctrine should be applied only in circumstances where the federal government expressly preempts state law. Although this theory appears to be broader than the Supreme Court’s current stance on federal power, it is less radical than the theory that federalism is obsolete altogether.
Similar to Chemerinsky, Professor Robert Schapiro argues for a “polyphonic” approach to federalism. Since the federal and state governments cannot take away each other’s authority to create law, these governments “represent independent voices of authority.” Schapiro describes this interaction as “polyphony”–when both federal and state governments can voice their independent ideas and concerns on education law and policy. He criticizes Chemerinsky’s theory for having “nothing to say about the No Child Left Behind Act, other than that courts should keep their hands off it.” In contrast, polyphonic federalism, he argues, provides “at least a framework” for analyzing NCLB. As a “joint state-federal effort to improve education,” he says, NCLB fosters more accountability of education policy set solely by states. Schapiro acknowledges, however, that his “analysis rests to some extent on an optimistic account of NCLB,” and he never recommends how NCLB should change when reauthorized. The changes he does propose–limiting preemption doctrine and using our dual court system to protect fundamental rights–would have little effect on NCLB because of the liberal judicial approach to the Spending Clause and the lack of a federal right to education.
Finally, NCLB could be viewed through the lens of Professor Gillian Metzger’s work. She argues that, because the administrative state necessarily intersects with federalism concerns, administrative law is useful to states and courts in addressing these concerns. For example, states have used traditional agency procedures to challenge the rationality of agency decisionmaking. And the Supreme Court has used administrative law to address federalism by applying unique standing rules and heightened substantive scrutiny when analyzing agency action challenged by states. Metzger argues that agencies are particularly responsive to states because regional offices give agencies a closer connection to states and state implementation ensures that agencies account for their interests. Additionally, agencies safeguard state interests because their rulemaking guidelines require review of state input in a way that ad hoc litigation does not; agencies are subject to judicial review; and agencies can review state concerns on an ongoing basis. As discussed in the next section, Metzger’s proposal holds promise in increasing the “polyphony” of NCLB because administrative law might provide the perfect stage for state and federal government to raise their voices on education policy.