Do state constitutions affect school curriculum?

classroomStudent Carissa Harris has written an interesting article in support of her masters in political science at Virginia Tech. I found out about it because it discusses my piece on federalism and education. The most interesting part, to me, is her research into the possible correlation between state constitutions and civics curriculum.

First, Harris examined each of the 50 state constitutions. She breaks them down into three categories: (1) constitutions that provide for free schools but do not mention the importance of schools for democracy (this is the majority of states), (2) constitutions that “begin their education articles with an explicit statement that education is essential to the maintenance of democracy” (there are 14 of them) and (3) Iowa, which has no education provision in its constitution. Second, Harris examined “each state’s high school graduation requirements, both for social studies in general and for civics/government courses in particular.”

Harris was looking for a connection between strong constitutional provisions about education and strong graduation requirements in civic education, but she didn’t find much. “Only eight of the 14 states with such constitutional emphases include civics or government courses as part of their social studies requirements for high school graduation,” she wrote, leading to the conclusion that there is “[n]o clear connections between state constitutions and social studies requirements emerged from these 50-state comparisons.”

Harris then picked two neighboring states to compare: Minnesota, with a strong constitutional provision about education, and Wisconsin, without one. Here, she found some variation, concluding that “[e]ach state’s different approach to curriculum requirements indicates that the state with a more explicit education mandate in its constitution (Minnesota) has more specific and rigorous civics education graduation requirements. But that does not preclude an individual school district in Wisconsin from implementing the same or more rigorous civics requirements.”

I’m not surprised that there is a weak correlation here. My suspicion is that state politics vary just as much if not more than federal politics, and a particular constitutional provision—especially one so weak as an explanation for why the state needs to provides schools—reflects the political emphasis at a particular point in time. Curriculum, I would think, is changed more often, and likely at a different time, and by different political players, resulting in a weak connection between the constitutional authority for, and the nuts and bolts of, a state’s education policy.

Harris’s ultimate conclusion is stated stronger than her evidence supports: “That many states do not provide thorough civics education requirements (possibly because of lack of resources or because more focus is placed on curriculum areas subject to high stakes standardized tests) suggests that inconsistency in, and an overall lack of discussion about, education standards will continue. Without an explicit Constitutional motivation to set such standards, it appears the status quo will remain into the foreseeable future.” I’m not persuaded. I think that states can and will take more control on education if there is political willpower, regardless of “constitutional motivation.” In fact, no “constitutional motivation” will likely ever exist unless there is a strong education-reform political constituency.

On another note, Harris addresses my proposal that the Department of Education could have a strong role as a meeting place for state and federal education policymakers. She acknowledges that Congress is in fact heading this direction, but argues that “this would lead once again to more national control over education policy, which would contravene the trend of new judicial federalism.” I disagree that my proposal means more federal control over education policy. Right now we have lots of federal control, with standards many criticize as too one-size-fits-all. Giving states more ways to express their concerns to the Department of Education—whether through waiver applications, special notice and comment procedures, or stronger provisions for state-initiated judicial review—and giving the agency leeway to address these concerns, would tip the balance in the other direction.

Even more states request waivers from No Child Left Behind: Are there alternatives?

Three more states have applied for waivers from federal education guidelines: Pennsylvania, Wyoming, and Texas. Add them to the 34 states (and the District of Columbia) that have obtained waivers and 10 other pending requests, plus the local California school districts that recently applied. As noted by Michele McNeil at Education Week, this “leaves just three states that are sitting out the process altogether: Montana, Nebraska, and Vermont (which withdrew its request).”

All of these waivers, in my view, confirm the view that states need to have a stronger voice in setting education policy because, even though the federal government has long been involved in setting education policies, No Child Left Behind obviously took that a step further than states have been able to manage. I think that waivers are probably the best options for states right now, until Congress gets its act together enough to reauthorize No Child Left Behind (not to mention pass a budget). Apparently most states agree. But going forward, I think that the Department of Education should be given even more discretion to consult with states in setting education policy, and new mechanisms other than just waivers should be allowed:

It is clear that NCLB needs to be reformed. The federal government is often unresponsive to state concerns, so the states have resorted to lowering their standards to comply with the law. Congress has been exceedingly slow to respond to the evidence that some parts of NCLB are not working, despite the fact that there remain many questions about how the law should balance the state and federal roles in setting education policy.
Emerging theories of federalism are helpful in the task of re-imagining NCLB and should inform Congress in the reauthorization. These theories support a strong federal role in education. But they also promote greater empowerment of state governments, allowing coordination and competition between both levels of government, for the sake of the nation’s education. With this theoretical underpinning, the role of Congress is to look for ways to promote federal and state polyphony in setting education law.
The best way to achieve this balance—to maintain federal control and increase the voice of the states—is to delegate more responsibility to federal agencies, while enacting special mechanisms meant to increase the voice of the states. Congress should allow federal agencies to set many of the specifics of NCLB’s reauthorization, while also allowing for easier judicial review for state challenges to agency decisions, special notice-and-comment procedures for states, and procedures for encouraging state experimentation. Using agencies and these mechanisms, Congress can ensure that the next reauthorization of NCLB remains flexible enough to address ongoing concerns and promotes the empowerment of states. Future scholarship and research should continue to explore additional ways Congress can use administrative law to improve federal and state interaction in setting education policy and beyond.
Benton Martin, An Increased Role for the Department of Education in Addressing Federalism Concerns, 2012 BYU Educ. & L.J. 79, 109-10 (2012).

Proposal for reauthorizing No Child Left Behind

ICRE School busAs I noted in an earlier post, theories of federalism support a greater “polyphony” of state and federal input on education policy. That is, education policy and reform works best when both state and federal government can voice objectives and concerns. In my article, An Increased Role for the Department of Education in Addressing Federalism Concerns, 2012 BYU Educ. & L.J. 79, 98-102 (2012), I propose that Congress should give more control over to the Department of Education, or another agency, as a stage for these dual levels of government to address their concerns. Here’s why I think this is a good idea (and what potential problems might arise with this approach):

Instead of merely renaming the existing standards and making minor changes to teacher qualifications and consequences for failing to meet NCLB’s requirements, Congress should simply set the broader objectives of national education policy and let one or more administrative agencies fill in the rest of the details. As an example, Congress could set the broad objective of “having qualified teachers,” and allow an independent federal agency, in consultation with states, to set any further details of this objective. This approach not only allows for ongoing state participation in modifying the NCLB scheme, but it also promotes greater state participation in creating the specific policies that comprise NCLB reauthorization itself.

Such a task could fall to the DOE; the Secretary of Education is already working on drafting new proposals for reauthorization of NCLB. Moreover, the DOE already administers NCLB—issuing policy guidance and disciplining states for noncompliance. Scholars suggest that NCLB would improve if the DOE simply offered more policy guidance. Congress should go a step further, wiping the slate clean and instructing the DOE—in coordination with state governments—to create the specific guidelines for achieving broad educational goals through informal rulemaking. This approach would not necessarily require modifying the prohibition against the DOE setting curriculum, since the DOE—as Congress did with NCLB—could set only assessment criteria and allow states to set the actual content of school curriculum.

One of the primary weaknesses of this approach is that it relies on Congress limiting its own role in setting the particulars of education policy. But there are persuasive reasons that Congress should consider doing so. Since an agency will set the details of new policies, there is less potential for the partisan gridlock that derided past reauthorization efforts. For Republicans, and even the Tea Party, states’ rights are a key concern, and this approach encourages greater state participation in setting education policy. For Democrats, this approach ensures that the federal government will have a key role in setting objectives for education policy. Perhaps most importantly, for both parties, this approach sets the stage for the future success of federal and state relations regarding education policy. By moving the ongoing debate about education policy to a more responsive and flexible body, members of Congress can assure constituents that strides are being made in education policy, without having to shoulder the criticisms of again making multiple missteps due to political compromise.

This proposal also might be challenged as unconstitutional. States could argue that, if they are forced to accept federal funds before they know the specific rules the DOE will eventually promulgate, the rule is too ambiguous. Indeed, courts have been conflicted over whether to permit agencies to fill in the details of federal spending-clause legislation, though mainly when an agency issues guidance with a congressional mandate. Congress could require that new DOE regulations remain nonbinding until the next installment of federal funds, allowing states to accept unambiguous terms when accepting funds. Congress also could preempt these arguments by unambiguously notifying states that the DOE is entrusted with  interpreting the broad conditions set by Congress. States might also argue that this approach is an unconstitutional delegation of congressional regulatory authority. But delegation is permissible as long as Congress gives an “intelligible principle” to guide agency rulemaking. The Supreme Court, unwilling to second guess most delegations, has interpreted “intelligible principle” very broadly, upholding even a delegation that simply required regulations “in the public interest.” In fact, only two statutes have ever violated this rule, both of which gave little or no guidance. As long as Congress sets some broad educational goals—such as a general standard that schools hire qualified, effective teachers—then the delegation would probably be constitutionally permissible.

This proposal—using administrative law to give states a more prominent voice in setting federal education policy—encapsulates the emerging theories of federalism discussed previously. In regards to the proposition that federalism is obsolete, the administrative state offers a chance to rewrite the structural elements of government. The national priorities for education are still promulgated through federal agencies, thereby accounting for the United States’ uniform normative  desire for better elementary and secondary education.  Additionally, it permits regional or state experimentation until a more cohesive national ideal is identified. In regards to empowerment and polyphonic federalism, the whole objective of this approach is to further empower states while not diminishing federal power, actually adding further players—independent agencies—into the group of entities seeking to solve educational deficiencies. By empowering agencies to set the specifics of federal education policy, the federal government would appropriately set a stage for a dynamic ongoing debate over education policy. This debate would allow the federal and state governments to learn from each other without the crippling necessity of cumbersome congressional action to dramatically change course.

2012 BYU Educ. & L.J. at 98-102 (footnotes omitted).

Applying theories of federalism to education reform

file5011249338919As 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.

A concise history of the federal role in education

Landaff, Grafton County, New Hampshire. Younger children in one of the town's 3 one-room school hous . . . - NARA - 521481I have a new article coming out in the BYU Education and Law Journal in which I argue that Congress should give more control to the U.S. Department of Education in reauthorizing the No Child Left Behind Act. I like the section that lays out the history of federal involvement in education, so I’m posting it below, with citations omitted. You can download the full article from SSRN.

For the first one hundred years of U.S. history, Congress had a limited but active role in education. For example, as early as 1785, the federal government required that proceeds from the sale of land in the Northwest Territories go to public schools.  Congress may have operated with self-restraint due to pervading views of strong states’ rights. As a result, the Supreme Court did not strike down a single federal law as violating the Commerce Clause or the Tenth Amendment.

Congress’s role increased after the ending of the Civil War in 1865. The federal government required new Union states to provide free public schools and established an early form of the Department of Education, though departmental powers were limited mainly to collecting and publishing data on the state of American education. The Court responded by putting limits on congressional power: by 1936 the Court had narrowed the scope of Commerce Clause power and had used the Tenth Amendment to prohibit even federal taxing and spending power from encroaching into traditionally state activities. Despite the Court’s restrictive views, however, Congress enacted the 1917 Smith-Hughes Act, which succeeded in providing federal aid to schools in the form of grants for vocational programs.

From the late 1930s to the early 1990s, the Court’s opposition to congressional power decreased, clearing the way for a greater federal role in education. The Court shifted to a “nationalist” perspective, rejecting the Tenth Amendment as a constraint on federal legislative power and permitting broad legislation based on Congress’s commerce and spending powers. The federal role in education indeed expanded: Congress provided money for school construction and teacher salaries, supported veterans going to college and local school districts affected by military mobilization, passed school lunch programs, and provided aid for areas affected by federal acquisition of property. The Cold War further encouraged federal support for math, science, and foreign language education to stay competitive with Soviet rivals.

This federal aid, however, tended to favor wealthier school districts to the detriment of poorer countryside and urban schools. To combat these disparities, Congress enacted influential federal education legislation, including the 1965 Elementary and Secondary Education Act (ESEA), the precursor of No Child Left Behind. ESEA dramatically increased federal spending on K-12 education and helped the Department of Education gain prominence in setting education policy–as the agency administered ESEA. Congress also set the Secretary of Education as a cabinet post.

At the same time, the states began creating statewide education policies. States have always provided, and continue to provide, the majority of the nation’s education funding, but typically did not have experts and political bodies dedicated to education policy until the 1970s.  Since this time, state governments have made strides towards providing equality of financing amongst school districts, increasing educational quality, and setting standards for student achievement.

The federal position shifted in 1981 when President Reagan took office trumpeting the goal of a limited federal government. Although he managed to slow the increasing level of federal spending on education, at least initially, he did not otherwise decrease the federal role in education directly. But he did limit the federal role in less-obvious ways. For example, he required that executive agencies consider specific federalism concerns when formulating policies (an order revoked by President Clinton) and, along with President Bush, managed to appoint a Supreme Court majority of conservatively-inclined justices. These conservative justices have abated the increasing role of the federal government in education, defending states’ rights under the Tenth Amendment and limiting the scope of the Commerce Clause by prohibiting the federal government from regulating the states in regards to “noncommercial” activities. So as Congress continues to increase the federal role in education, the Supreme Court has essentially worked against that effort, shifting back to a “federalist” perspective, increasingly focused on states’ rights.

Although states’ rights advocates expected this “federalism revolution” to affect Congress’s spending power, the Court has left this power largely unbridled. Even today, the Spending Clause remains mostly unconstrained by federalism concerns resulting in Congress pushing its education policy on states primarily by conditioning federal funding on state adherence to federal priorities. For example, in 1994 Congress passed President Clinton’s Goals 2000: Educate America Act, which focused on using federal aid to assist states in creating their own academic achievement standards and assessment mechanisms. Congress included these types of reforms in subsequent reauthorizations of ESEA, including No Child Left Behind.