What Has Happened to Federalism?
The Conflict over No Child Left Behind
State & Local Government
May 5, 2006
The ideas and perspectives that children learn as they grow up have a profound effect upon the way they think, act, and interact with others, so education has been deemed important as a primary means for creating a healthier society, a tool to end poverty and disease, or a battleground in a culture war. Since many American parents consider education to be a “right” for everyone, the government has taken the responsibility to provide schooling in virtually every community. This expansion of public education has created a major sphere in which cultural battles are fought. But these battles are not merely at the community level. From the 1954 case, Brown v. Board of Education, in which schools were desegregated based on the Fourteenth Amendment of the Constitution, to the 1962 case Engel v. Vitale, in which prayer was removed from public schools, the U. S. Supreme Court has assumed a role in shaping the public education system in every state and community. Although federal power over education has been restricted in recent years as a result of cases like U. S. v. Lopez (1995), the public education system remains an area for competition among state and local governments in modern American politics. How much control should the federal government have over the states? This is a primary question in our federalist system and is often answered in the context of education.
Conflict over the schools in America is not limited to social issues like racism, religion, and firearms. There is serious disagreement about the content and methods of education itself. Much of this conflict occurs in the political realm because the government seeks to improve public schools in the context of private schooling’s successes. Private school students have consistently outperformed public school students on standardized tests, and millions of parents choose alternatives to public schools such as charter schools, private schools, and home schooling (NAEP 2005). Dissatisfaction with the public schools has been widespread since the 1970s, especially since the standards for graduation seem so low (Reese 2005, 305). This dissatisfaction with low standards has driven a push for more rigorous testing and accountability based on standardized tests. While this effort is supported by a public which demands higher standards, it is often resisted by the teachers and administrators whose work is being evaluated, especially in extremely poor neighborhoods where children’s scores are lowest (Reese 2005, 330). This is understandable. Nobody wants to be told that they are doing a lousy job, especially when the job is difficult.
While this conflict was largely isolated within the states throughout the 1970s, 1980s, and 1990s, it has become a struggle on the national level with the passage of the No Child Left Behind Act in 2002 (NCLB). This act, advocated by President George W. Bush and passed by a bipartisan majority of Congress, sought to apply the best methods of the accountability movement to every school in the nation, in order to ensure that no child in America is “left behind” by a substandard education. While the program’s goals were admirable, it has brought negative political consequences. This paper focuses on those consequences by seeking to answer three questions. First, is the law an unfunded mandate? Second, how does the conflict over the law affect relations between states and the federal government? And finally, how has the law affected federalism in general? Upon answering these questions, it will become clear that the No Child Left Behind Act has damaged relations between states and the federal government both in fiscal decision-making and policy choice because it is perceived as an unfunded mandate and represents a one-size-fits-all mentality.
To determine whether the No Child Left Behind Act is an unfunded mandate, it is crucial to understand what an unfunded mandate is. The term has emerged in the context of modern federalism in which the federal government has expanded its policymaking power over the states through the use of congressional spending power. Constitutionally, Congress has no direct ability to influence the laws of the states except in areas of national interest such as foreign policy and interstate commerce. However, Congress may freely appropriate funds for the general welfare of the nation. Since the passage of the Sixteenth Amendment, the national government has expanded its power of the purse through the collection of income taxes. Starting with Franklin Roosevelt’s New Deal, Congress has routinely spent money on programs that are implemented by the states. The states are not required to take the funds, but they have little choice in reality since the programs are usually needed and almost always popular with the public. Unfunded mandates, in general, are laws passed by Congress which require states to implement certain regulations without providing enough money to do so. The term usually applies to conditional grants whose requirements cost the states more than the amount of money included in the grant.
The No Child Left Behind Act is a conditional grant. Billions of dollars are offered to the states under the condition that they implement testing systems to prove that high standards are increasingly being met by the schools. Is this an unfunded mandate? The U. S. Department of Education argues that it is not. Pointing to a General Accounting Office study of May 2004, then Secretary of Education Rod Paige denied that NCLB is an unfunded mandate because it does not meet the narrow definition of a mandate in the Unfunded Mandates Reform Act of 1995 (Ed.gov 2004). Conditional grants are not unfunded mandates according to this definition because they are not truly mandates. Since states are not required to take the money, the law cannot be called a mandate. While one could argue that states could choose not to take the money, this argument ignores fiscal realities and skirts the central question with regard to federalism: does the NCLB grant adequately fund the costs of the conditions it imposes on the states? Furthermore, many argue that the conditional grants are coercive in nature since a loss of funds can be seen as a penalty. So what choice do the states really have?
Harvard scholars Paul E. Peterson and Martin R. West support No Child Left Behind and address the cost issue directly. In a March 2004 article, they argue that NCLB is adequately funded based on the following three reasons. First, accountability is cheap. The costs of administering and reporting tests are not that high; in fact they account for only 0.2 percent of the total costs of public schooling. This percentage is based on numbers from the testimony of two Massachusetts school officials and a study by a Harvard economist. Second, the administration has greatly increased funding. With the passage of NCLB, $384 million was appropriated in fiscal year 2003 to pay for the costs of the math and reading tests the law requires; and this is enough according to the Massachusetts school officials. Third, more money will not really help. Funding for education has been increased significantly since 1980 and yet students are performing just as poorly, so money is not the solution (Peterson and West 2004).
Vermont school superintendent William Mathis opposes No Child Left Behind and responds to Peterson and West’s arguments in a subsequent article. He argues that the issue of “full funding” is highly debatable and depends on what costs are included. Citing state-sponsored studies, he disputes the idea that administrative costs are low and insists that federal spending only covers about half of the total amount. Furthermore, according to Mathis, funding should include more than the mere costs of adding a testing and reporting system to the schools. The real cost should include the costs of teaching children to meet the standards. Accountability’s goal should be success, not failure, and it costs much more to teach struggling students than it does to administer a test. In sum, Mathis argues that focusing on the administrative costs and ignoring the costs of teaching is tantamount to leaving the children behind (Mathis 2004).
A study by the National Education Association (NEA) contributes additional information to the debate over whether NCLB is adequately funded. Apart from the additional requirements of accountability, the NEA argues that large funding gaps exist between the amounts appropriated by Congress and full funding levels. Full funding levels are calculated primarily from the amounts needed to provide services to all eligible beneficiaries. For example, Title I-A stipulates that school districts should receive 40 percent of the average per pupil expenditure in the state for every poor child within the district. The estimates are provided by both the Congressional Research Service and a private company contracted by the NEA. According to the study, the gap between amounts appropriated and full funding levels was approximately $32 billion in 2003. Based on these numbers, the NEA argued that it is unfair for the federal government to blame states for their failure to meet standards while Congress is failing to adequately fund their requirements. Furthermore, they claim it will take even more money to accomplish the goals of NCLB (NEA 2004).
Is No Child Left Behind an unfunded mandate? It depends on your perspective. There is the question of whether it is even a mandate. Federal politicians defend their actions by arguing that states are not required to take the money. But states are under a great amount of financial and public pressure to take advantage of federal “largesse.”
There is also the question of responsibility. Are the states primarily responsible to pay for the education they administer? Or is the federal government supposed to pick up the slack when the states are having trouble? Congress is willing to scold the states for their failures when it comes to low standards. But can they back up their goals with the funds needed to meet those goals? In some ways, No Child Left Behind seems more symbolic than substantial. Congress is responding to the public’s cry for higher standards without taxing them enough to fix the problem.
Finally, there is the question of the effectiveness of funding. Peterson and West are highly skeptical about the usefulness of pouring more money into struggling schools. But Mathis and the NEA argue that schools are unable to improve as long as they lack the resources promised by government. Whether money improves education or not, the educators certainly say it does and their perception affects the political reality of the situation. Public school teachers and administrators will invariably ask for more funding from the government since it is in their self-interest, but NCLB has given them a new reason to ask. In the minds of the teachers, NCLB is a slap in the face and it lacks the means of improvement. It is perceived as an unfunded mandate, and this generates a significant amount of the conflict over the law.
The conflict over the No Child Left Behind Act has significantly affected relations between the states and the federal government in the area of education policy. The law’s passage has created a firestorm of debate among educators, politicians, and scholars. Alan Greenblatt describes the dispute in his September 2004 article for Governing magazine. In it, he presents the major criticisms of the law: its expectations are too high, its penalties are too tough, it is too inflexible, it ignores special needs, and it lacks adequate funding. The primary goal of NCLB is to ensure that every child masters the basic skills needed in society, no matter how disadvantaged they may be. While this goal is admirable, it may not be feasible considering the number of students and schools who are currently failing. In addition to high expectations, the law sets forth tough penalties when its expectations are not met. Schools that do not meet the requirements are labeled “in need of improvement” and the media calls them “failing schools.” If a school retains this label, they must allow students to transfer to other schools, provide tutoring, and if no improvement is forthcoming, submit to state intervention (Greenblatt 2004). These sanctions are designed to be tough since it is a system of accountability. But they seem harsh to the students and schools facing the disgrace of failure.
The inflexibility of NCLB is also frequently criticized. As Greenblatt explains, the Improving America’s Schools Act of 1994 sought to fulfill many of the same goals as NCLB, but the Department of Education freely granted waivers to troubled states, rendering the law essentially meaningless. The Bush administration is seeking to actually enforce the regulations this time around, so they are less willing to make exceptions. Unfortunately, the stringency of NCLB has resulted in some very good schools being unfairly labeled. For example, Greenblatt describes the situation of Montgomery High School in New Jersey, a very successful school which missed the required testing participation rate because two of their special education students did not show up on testing day. This is merely one story, but it is easy to imagine other similar situations. The special education students in New Jersey are not the only ones having trouble meeting the law’s requirements. Greenblatt argues that many special-education students may be harmed by the law since they are forced to drill academic facts instead of learning valuable job skills. Finally, the issue of adequate funding is major source of contention, as explained above. When inflexible regulations are imposed on schools without the promised amount of funding being provided, it is no wonder that many teachers and administrators are opposed to NCLB.
What is the Bush administration’s response to these complaints? Sometimes, according to Greenblatt, the complaints are simply dismissed. As the enforcers of tough regulations, they probably expect some recalcitrance from the recipients of sanctions. But the teachers do have a lot of influence with state legislatures, so the White House has had to spend time fighting state bills which formally protest the law. In addition, the Department of Education has engaged in a public relations campaign to promote the benefits of No Child Left Behind. In response to critics of the high expectations and tough penalties, they argue that the law gives schools enough time to improve while ensuring that they have a real incentive to do so. In response to charges of inflexibility, the Administration has modified the rules to some extent. Teachers now have more ways to meet the definition “highly qualified” and the percentage of special-education and limited-English students that can be excluded from a school’s score has been increased slightly (Greenblatt 2004). They also argue that flexibility is built into the law, because it allows districts to transfer funds among programs without approval. (Ed.gov 2006). Finally, the Administration argues that despite the complaints, NCLB is actually working. They point to recent results of the Nation’s Report Card which show achievement at all-time highs and significant improvement over the last two years (Ed.gov 2006). In particular, the mathematics scores of younger students were significantly higher in the years since NCLB (NAEP 2005). While these statistics are encouraging, most of the scores had already been increasing since the late 1980s and the recent rise could be argued to reflect more serious and skilled test-taking in light of the tests’ increasing importance instead of actual improvements in teaching and learning.
The conflict over standards accountability is not new in the United States public education system. As the National Conference of State Legislatures’ task force on NCLB explains, standards-based reforms began in the 1980s and the movement gained national attention in 1988. President Clinton was a champion of the movement as governor of Arkansas, and was instrumental in passing the Improving America’s Schools Act (IASA) in 1994. Like NCLB, IASA required states to develop standards and impose testing requirements. However, the requirements in IASA were limited to Title I students only, about 35 percent of all public school students. IASA funded programs for struggling students without the threat of federally-mandated consequences for failure. Furthermore, as explained above, many states were granted waivers to IASA’s requirements, so it was barely enforced at all. Thus, the comprehensive federalization of standards-based accountability in NCLB has greatly increased both the extent and the scope of the conflict. NCLB applies to all students in all schools without exception and imposes qualifications, state interventions, and consequences for failure. As the National Conference of State Legislatures’ task force put it, “the result is a one-size-fits-all accountability system that affects all students and brings the federal government into the day-to-day operations of public education” (NCSL 2005).
The impact of the conflict over NCLB has damaged relations between the states and the federal government. As reported in early 2004, legislatures across the country have proposed and passed legislation criticizing the law or requesting exemptions from its provisions. Utah’s House refused to implement the law’s requirements and Vermont’s legislature banned state funding for NCLB reforms (Dobbs 2004). According to Communities for Quality Education, an advocacy organization, there are NCLB-resistant bills being proposed in all 50 states this year which would urge Congress to provide more funding, ask the U. S. Department of Education for exemptions, or authorize state agencies to opt-out of NCLB provisions. This flurry of activity among the states is consistent with the findings of the National Conference of State Legislatures, whose task force on NCLB recommended a number of major changes to the law in their 2005 proposal. While it is understandable that some states might be somewhat resistant to implementing an intrusive federal program, the evidence suggests that NCLB has garnered significant opposition in every state. This opposition has damaged relations between federal and state governments by developing a deeply adversarial relationship over the issue of education.
The United States federalist system is based upon a separation of jurisdiction between the states and the federal government. Traditionally, education has been handled almost exclusively by state and local governments. This tradition stemmed from the common understanding that education was a family and community endeavor, not a government program. With the introduction of public schools in the 19th century, education became funded and controlled by state governments (Reese 2005). The federal role in education was limited constitutionally by the Tenth Amendment, which explicitly reserves most government powers to the states. As explained above, however, Congress has increasingly made use of its spending power to influence policy choice in the states. Now, the people of the United States expect the federal government to work with the states in protecting their rights and providing for their needs.
Roosevelt’s New Deal programs, which initiated this cooperative type of federalism, arose out of very tough situation, the Great Depression. On their own, the states had proven unable to revive the economy, so the federal government stepped in. The same is true in education policy. When the states prove unable to meet the needs or protect the rights of the citizens, the federal government steps in. When the board of education in Kansas refused to allow black students to go to white schools, the federal Supreme Court implemented desegregation. Thus, when Lyndon Johnson promised a “war on poverty,” he signed the Elementary and Secondary Education Act (ESEA) in 1965 to provide resources for students disadvantaged by racial discrimination, poverty, or both (NEA 2004, v). But as time went on, it became clear that spending money was not enough. The “achievement gap” between advantaged and disadvantaged students remained significant. Accountability was needed, so nearly every state began implementing standards-based reforms throughout the 1980s and 1990s (NCSL 2005, 16).
Although NCLB is an extension of this worthy effort, it has radically changed the federal-state relationship on the issue of education. No longer is the federal government simply providing funds to help disadvantaged students while leaving the details of the programs to the states. Now the federal government has specified that every student in America must meet a standard, determined which standard is acceptable, and regulated the details of how progress is measured. This level of regulation imposed upon the states by the federal government is unprecedented in our nation’s history, at least in this area. Not only have relations between the federal and state governments been damaged by the conflict over the law, the very nature of federalism has been altered. As Patrick McGuinn of Drew University put it, NCLB “has created a new educational federalism in the United States” (McGuinn 2005, 68).
Conflict over the No Child Left Behind Act has arisen in the United States from the perceived lack of adequate funding, and criticism about inflexibility and intrusiveness. While it may be cheap to administer a test, the costs of actually teaching the material being tested are much higher, according to educators, and none of these costs are provided by NCLB. It is laudable to ensure a quality educational standard for every student, but can the federal government effectively determine when and how a student is educated well? While NCLB is criticized as both unfunded and one-size-fits-all, what happens to the nation’s political system? How are the people being represented when the states are in conflict with the federal government over the care of their most precious interests, their children? NCLB has created this conflict, and thereby damaged federalism.
Dobbs, Michael. 2004. More States Are Fighting 'No Child Left Behind' Law. Washington Post. February 19. Washington, DC.
Ed.gov. 2004. New GAO Report Finds That No Child Left Behind Is Not an "Unfunded Mandate." U. S. Department of Education. May 25. Washington, DC.
Ed.gov. 2006. No Child Left Behind Act is Working. U. S. Department of Education. April. Washington, DC.
Greenblatt, Alan. 2004. The Left Behind Syndrome. Governing Magazine. September. Washington, DC.
Mathis, William J. 2004. Two Very Different Questions. Education Week. April 21. Bethesda, MD: Editorial Projects in Education Inc.
McGuinn, Patrick. 2005. The National Schoolmarm: No Child Left Behind and the New Educational Federalism. Publius 35, no. 1. Oxford: Oxford University Press.
NAEP. 2005. The Nation’s Report Card. National Assessment of Educational Progress. Washington, DC: National Center for Education Statistics.
NCSL. 2005. Task Force on No Child Left Behind. National Conference of State Legislatures. February. Denver, CO.
NEA. 2004. No Child Left Behind? : The Funding Gap in ESEA and Other Federal Education Programs. Washington, DC: National Education Association.
Peterson, Paul E. & Martin R. West. 2004. The Contentious 'No Child' Law II: Money Has Not Been Left Behind. Education Week. March 17. Bethesda, MD: Editorial Projects in Education Inc.
Reese, William J. 2005. America’s Public Schools. Baltimore, MD: The Johns Hopkins University Press.