Positive Education Federalism

Christian Sundquist

Albany Law School

October 31, 2012

The accepted narrative of the American public education system is one of “decline,” educational “crisis,” and “systemic failure.” Our public schools are increasingly segregated by race and class in the post-Brown era, while fundamental social inequalities persist among schools in regards to educational quality, financing and outcomes. Long viewed as essential to the economic and democratic development of America’s citizenry, our unequal system of universal public education has forsaken the “faces at the bottom of the well” in an era of deregulation and decreased social welfare funding.

The federal government has responded to the failure of Brown’s promise of equal educational opportunity by introducing legislation – the No Child Left Behind Act of 2001 and the Race to the Top Act of 2009 - that promotes educational reform informed by the classic market principles of consumer choice, competition and accountability. Under this schema, the failure of America’s public schools can be traced to an overregulation of education that has promoted bureaucratic stasis, ineffective teaching and unaccountability at the cost of the individual liberty of parents and children to attend the school of their choice. The role of the federal government, then, has been to utilize its fiscal block grant in-aid powers to cultivate the private and market-based properties of public education.

And yet the crisis of America’s system of public education is less a manifestation of under-incentivized schools, inadequate school choice and poor teaching, than it is a reflection of unrelenting poverty and persistent racial discrimination. The modeling of education policy and law around the oft-criticized market assumptions of consumer choice, competition and accountability have led to a deepening of the crisis confronting public schools. Since the adoption of market-based education legislation such as NCLB and RTT in the last ten years, our public schools have been re-segregating at an accelerated rate and the achievement gaps between the rich and poor and white and non-white have deepened. The market model of public education does not provide any answers to our current educational dilemma, but merely deflects the responsibility of providing an equitable public education from the public sphere of federal and state government to the private sphere. There are no easy answers to the public school crisis, and simply incorporating misplaced assumptions of competition, rational choice, and market accountability into public educational policy will not resolve the situation. Rather, we need to acknowledge that our school failures are not due to the absence of market incentives and processes in education, but rather are caused by systemic social inequalities – including poverty, racial discrimination and segregation, unequal school financing, and inadequate teacher compensation.

With the reauthorization of our current federal statutory framework for public education looming, this article examines the appropriate federal role in developing and enforcing public educational policy and law. “Our federalism” demands not only that there be an appropriate balance between state and federal power when evaluating the constitutional feasibility of new laws, but also that there remain a sufficient demarcation between the public and private spheres of regulation. This article argues that the existing market-oriented statutory approach to public education, embodied by NCLB and RTT, fails to advance the values of education federalism by encouraging the penetration of private market forces into the traditionally public sphere of universal education.

Part II of this article explores traditional conceptions of federalism as a negative limit on the executive, legislative and judicial power of the federal government. This section also identifies the core values associated with various conceptions of “negative federalism.” Part III examines the civic model of public education that pre-dated current education policy, while charting the historical expansion of the federal role in public education. Part IV analyzes the current federal involvement in public education under the traditional negative model of federalism. Finally, Part V advances an alternative positive conception of education federalism, which stresses the obligation of the federal government to address national problems – such as failures in the system of public education – in a manner which accords with principles of social justice. This section then provides substantive policy recommendations to incorporate in the pending reauthorization of federal education law.

Keywords: race, education, federalism, child, race, racial, disparities, inequality, post-race, post-racial, charter, reform

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Date posted: November 1, 2012  

Suggested Citation

Sundquist, Christian, Positive Education Federalism (October 31, 2012). Available at SSRN: http://ssrn.com/abstract=2169455

Contact Information

Christian Sundquist (Contact Author)
Albany Law School ( email )
80 New Scotland Avenue
Albany, NY 12208
United States

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