Notes/Explanation

Federalism DA Answers

No Spillover

No Spillover Beyond Education — the plan is a narrow expansion of federal power.

Robinson 15 — Kimberly Jenkins Robinson, Professor of Law and Austin Owen Research Scholar at the University of Richmond School of Law, Researcher at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, former Associate Professor at the Emory School of Law, former General Attorney in the Office of the General Counsel at the United States Department of Education, holds a J.D. from Harvard Law School, 2015 (“Disrupting Education Federalism,” Washington University Law Review (92 Wash. U. L. Rev. 959), Available Online to Subscribing Institutions via Lexis-Nexis)

In offering a theory for how education federalism should be restructured to strengthen the federal role over education, and thus reduce reliance on states to ensure equal access to an excellent education, I build upon Yale Law Professor Heather Gerken's argument that federalism theory should eschew advancing a single theory for all occasions because "both in theory and practice ... there are many federalisms, not one." n39 She astutely contends that scholars developing and critiquing federalism theory should consider the appropriate balance of institutional arrangements for a specific context. n40 Therefore, my theory for how [*968] education federalism should be restructured does not attempt to propose a federalism theory for other policymaking arenas such as environmental law or healthcare policy. Instead, it solely proposes a shift in the balance of federal, state, and local authority in order to strengthen the federal role in ensuring equal access to an excellent education while preserving the aspects of state and local autonomy over education that do not undermine equal access to an excellent education.

No Link

No Link — the plan maintains state and local control of education.

Robinson 15 — Kimberly Jenkins Robinson, Professor of Law and Austin Owen Research Scholar at the University of Richmond School of Law, Researcher at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, former Associate Professor at the Emory School of Law, former General Attorney in the Office of the General Counsel at the United States Department of Education, holds a J.D. from Harvard Law School, 2015 (“How Reconstructing Education Federalism Could Fulfill the Aims of Rodriguez,” The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity, Edited by Charles J. Ogletree, Jr. and Kimberly Jenkins Robinson, Published by Harvard Education Press, ISBN 9781612508313, p. 223-224)

Reconstructing Education Federalism Would Empower State and Local Control, Accountability, and Innovation

In this chapter, I offer ways to reduce harmful aspects of state and local control of education while simultaneously empowering beneficial and collaborative aspects. States admittedly would lose some control over education because they would be accountable to the federal government for ending long-standing disparities in educational opportunity. At the same time, other aspects of state and local control of education would remain. States would retain authority to control education policy making through education governance, the nature and content of a school finance system, state assessments [end page 223] and graduation standards, and a wide variety of teaching and curricular decisions. Localities would continue to administer education, manage the daily operation of schools, hire teachers and staff, build and maintain schools, and transport students. 83 Maintaining these functions under state and local authority fosters continuance of most of the existing levels of state and local control, accountability, and innovation for education.

Most importantly, placing primary responsibility on the federal government for leading a national effort to close the opportunity and achievement gaps would foster new types of state and local control over education. Currently, substantial disparities exist in each state's capacity to offer high-quality educational opportunities. With the federal government in the lead role, state and local governments would both have a greater and more equal capacity to offer all children an excellent education. 84 This enhanced capacity would empower states and localities to engage in innovative reforms previously hindered by capacity limitations; they would decide how they want to achieve equal access to an excellent education and thus continue to function as laboratories of reform—but with new federal research, technical expertise, and financial assistance to support the identification and implementation of appropriate reforms.

No “Federalizing Education” Link — the plan retains the benefits of state control.

Robinson 16 — Kimberly Jenkins Robinson, Professor of Law and Austin Owen Research Scholar at the University of Richmond School of Law, Researcher at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, former Associate Professor at the Emory School of Law, former General Attorney in the Office of the General Counsel at the United States Department of Education, holds a J.D. from Harvard Law School, 2016 (“Fisher’s Cautionary Tale and the Urgent Need for Equal Access to an Excellent Education,” Harvard Law Review (130 Harv. L. Rev. 185), November, Available Online to Subscribing Institutions via Lexis-Nexis)

Despite federalism-based concerns over this increase in federal influence over education as too great a reduction in state and local control, my approach would retain a number of features that recognize [*230] federalism's potential benefits. My proposal retains most of the existing forms of state and local control of education. It does not embrace a national schoolhouse or federalize our education system. Instead, it insists that states equitably distribute educational opportunities and provide all children an excellent education. In addition, my theory for disrupting education federalism would empower new forms of state and local control for those communities who have lacked the influence to demand an excellent and equitable education for their children. n294 This theory admittedly and intentionally ends a state's ability to distribute resources in an inequitable and irrational manner that harms both disadvantaged children and the nation's interest in an educated citizenry and workforce. However, states would retain primary control of education as each state would select the best path for it to ensure equal access to an excellent education.

Link Not Unique

Link Not Unique — federal control of education now.

Robinson 15 — Kimberly Jenkins Robinson, Professor of Law and Austin Owen Research Scholar at the University of Richmond School of Law, Researcher at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, former Associate Professor at the Emory School of Law, former General Attorney in the Office of the General Counsel at the United States Department of Education, holds a J.D. from Harvard Law School, 2015 (“How Reconstructing Education Federalism Could Fulfill the Aims of Rodriguez,” The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity, Edited by Charles J. Ogletree, Jr. and Kimberly Jenkins Robinson, Published by Harvard Education Press, ISBN 9781612508313, p. 206)

My proposal for disrupting education federalism is particularly timely. First, the United States is undergoing an unprecedented expansion of the federal role in education and an accompanying shift in its approach to education federalism. The American Recovery and Reinvestment Act of 2009, also known as the stimulus bill, authorized an unprecedented $100 billion to invest in education funding, tuition tax credits, and college grants. President Barack Obama trumpeted this as "the largest investment in education in our nation's history." The stimulus bill included $4.35 billion for the Race to the Top (RTTT) program, which represented far more discretionary funding than all of Secretary of Education Arne Duncan's predecessors. Although RTTT has its shortcomings, it has sparked significant education reform, including greater state support for the Common Core State Standards, charter schools, and revisions to state laws regarding the use of student testing data to evaluate teachers. In a number of states and districts, the two years following the creation of RTTT sparked more reform than those locations had seen in the preceding twenty years.11 The stimulus bill built on the expansion of the federal role in education established in the No Child Left Behind Act of 2001. NCLB represents the most expansive federal education reform law in the history of the United States. For example, the law's far-reaching provisions require annual testing in math and reading in grades 3 through 8 and once in grades 10 through 12 and periodically in science. NCLB also instituted public reporting of results of student assessments on the content of state standards; launched disaggregation of this data for a variety of student characteristics, including race and ethnicity; created accountability interventions for Title I schools; and set minimum requirements for highly-qualified teachers.12

No Innovation Impact

No Innovation Impact — the plan preserves state innovation within federal limits.

Ogletree and Robinson 17 — Charles J. Ogletree, Jr., Jesse Climenko Professor of Law and Director of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, holds a J.D. from Harvard Law School and an M.A. in Political Science from Stanford University, and Kimberly Jenkins Robinson, Professor of Law and Austin Owen Research Scholar at the University of Richmond School of Law, Researcher at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, former Associate Professor at the Emory School of Law, former General Attorney in the Office of the General Counsel at the United States Department of Education, holds a J.D. from Harvard Law School, 2017 (“Inequitable Schools Demand a Federal Remedy,” Education Next, Volume 17, Number 2, Spring, Available Online at http://educationnext.org/inequitable-schools-demand-federal-remedy-forum-san-antonio-rodriguez/, Accessed 06-09-2017)

When enforcing a constitutional right to education, federal courts should establish clear guidance about what that right requires, while also allowing for flexibility in how states implement it. State funding and governance mechanisms vary. Therefore, federal courts should eschew simple one-size-fits-all remedies such as mandating equal per-pupil funding. States should be able to continue to serve as laboratories of experimentation and innovation that decide how best to provide the right to education. However, these laboratories should operate within federal limits that protect the national interest in a well-educated populace. This approach would provide federal accountability while retaining the beneficial aspects of state and local control.

Federalism Bad – Inequality

Education Federalism Bad — it cements inequality.

Ogletree and Robinson 17 — Charles J. Ogletree, Jr., Jesse Climenko Professor of Law and Director of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, holds a J.D. from Harvard Law School and an M.A. in Political Science from Stanford University, and Kimberly Jenkins Robinson, Professor of Law and Austin Owen Research Scholar at the University of Richmond School of Law, Researcher at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, former Associate Professor at the Emory School of Law, former General Attorney in the Office of the General Counsel at the United States Department of Education, holds a J.D. from Harvard Law School, 2017 (“Inequitable Schools Demand a Federal Remedy,” Education Next, Volume 17, Number 2, Spring, Available Online at http://educationnext.org/inequitable-schools-demand-federal-remedy-forum-san-antonio-rodriguez/, Accessed 06-09-2017)

Ultimately, what we are calling for is a long-overdue restructuring of education federalism to establish an effective partnership of the federal, state, and local governments to advance equal access to an excellent education. Education federalism has served as a consistent roadblock to federal efforts to remove barriers to equal educational opportunities for low-income and minority students. The oft-praised benefits of state and local control—experimentation, innovation, and competition for excellence—have failed to eliminate the substandard schools that many children attend. Instead, trumpeting the importance of state and local control has too often served as a vehicle for those privileged by the current education system to maintain their advantage and avoid accountability for effectively educating all children.