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NCLB Outrages

Education and American Federalism

Ohanian Comment: This essay by Leo Casey is introduced by Progressive Policy Institute. Go to the PPI website to see who funds them, what they promote. These New Age Democrats have interesting bedfellows.

2004 will be a political year with plenty of debate. That's good; vigorous national debates are as much a hallmark of a free society as is voting. Yet these debates have consequences that extend past the time elections or issues are settled. Words uttered and positions taken in the heat of political passion matter.

NCLB will obviously be a contentious topic. To be sure, overall we support NCLB, but reasonable people can disagree about the goals and provisions of the law. However, we have been dismayed at the willingness of many NCLB opponents to align themselves with political actors, positions, and rhetoric with which they have little else in common. That some ultra-conservative politicians and states rights zealots oppose NCLB is not a good reason for progressives to make common cause with them. To rail against federal mandates, federal intrusion, and federal activity in education is to fundamentally misread the history of the second half of the last century and to put at risk the authority and credibility of the federal government to intervene on behalf of the disadvantaged in education and other policy areas.

In the essay below, Leo Casey, a critic of parts of NCLB, lays out a compelling argument for why NCLB opponents should rethink some of their rhetoric and tactics. Casey points out that the federal government has been a force for social progress on a variety of issues (including, not insignificantly, education) and cautions NCLB foes to be mindful of history, precedent, and unintended consequences. We think the thoughts expressed in this essay, which originally appeared as part of a larger debate on a psuedo-listserve called EDDRA, are wise counsel. Leo Casey writes on education and politics and works for the United Federation of Teachers in New York City. The views he expresses here are his own.

Education and American Federalism
by Leo Casey

When it comes to discussions of the federal role in education there is often an ahistorical approach and a political naiveté concerning issues of American federalism -- the balance of power between national and state governments. Among opponents of No Child Left Behind (NCLB), the discussion concerning the role of federalism in education is often given over to pro-state power political positions, without a proper understanding of the significance and the consequences of such a stance. This approach and naiveté is not unique to education, but is a broader phenomenon with serious consequences in a number of fields. Yet it has the same negative influence in education that it does in other fields.

Little note is generally taken, for example, that perhaps the most far reaching and lasting jurisprudence that has issued from the Rehnquist Court has been in the area of federalism. The Court has consistently struck down federal legislation in every area from violence against women to the prohibition of guns from school campuses, from environmental legislation to civil rights. It has done so in the name of the protection of the constitutional rights and prerogatives of states.

But if you think that this is truly a question of abstract principle, just recall that the decision in Bush v. Gore completely rode roughshod over all of those precedents, overturning a state court decision in an area where the states are given express constitutional authority -- the running of elections. The pro-state jurisprudence reflects the fact that the most progressive legislation from the New Deal onward came predominantly from the federal government, and the privileging of state power vis-ŕ-vis federal power provides a mean to strike at that legislation.

Perhaps nowhere is this particular significance of the federalism question more apparent than in the field of civil rights for African-Americans. While the struggles of African-Americans themselves have played a primary role in advancing their cause, it has always been the federal government that has been the primary vehicle for institutionalizing the fruits of that struggle. The Civil War Amendments ended slavery and accorded African Americans full citizenship rights and equality before the law. The long battle to end de jure, Jim Crow segregation relied upon the federal government's enforcement of the equal protection clause of the 14th Amendment, and the federal government's passage of the civil rights and voting rights legislation. And the opponents of freedom, equality and full civil rights for African Americans have fought under the banner of the constitutional powers of the states, from the pre-Civil War doctrine of nullification to the calls for state sovereignty that marked the end of Reconstruction, to the battle cry of "state rights," which defined white supremacists during the era of Civil Rights.

Nor is civil rights for African-Americans the only area in which the federal government has been the avenue for progress in American society. Virtually every important civil liberties case in the 20th century has been against state and local government, and brought about through the federal government judiciary. New Deal economic regulation of corporate power and establishment of the workers' right to organize, environmental legislation, abortion rights and other civil rights for women and disabled people, and so on: the federal government has been in the lead.

This is not to say that the federal government's record is unblemished, that there are not cases -- such as Korematsu v. US [upholding Japanese-American internment], Bowers v. Hardwick [upholding anti-gay
sodomy laws], or the early 20th century cases striking down child labor and eight hour day laws -- in which the federal government was a force for reaction. But the weight of the pendulum clearly rests on the side of the federal government as the primary force for progress.

And so it has also been in the field of education: when the national government has intervened, it has generally been a force for progress -- ending de jure segregation, instituting Head Start, Title I, subsidized school lunches and other programs for children in poverty, the GI bill, the rights of children with disabilities, and so on. My view is that the regressive parts of NCLB are the exception rather than the rule. And, it is worth pointing out that even here there is nothing the federal government did under NCLB that most state governments were not already well on their way to doing on their own.

Specifically, what I see as the negative effects of NCLB are often as much a function of how state and local educational authorities interpret and implement the law as of the law itself or federal government regulations. Giving all power to the state and local governments will not mean a turn to sensible, contextually sensitive accountability models, which are much more expensive and require much more work on the part of the state and local supervising agencies.

In the same vein, while the Bush administration's violation of its promise to adequately fund the efforts of schools to reach NCLB standards is wrong and must be opposed, who seriously thinks that state and local governments are prepared to step into the gap and provide the funds themselves? Significant equity problems have existed in all fifty states -- something that NCLB opponents cannot afford to ignore.

It will be most unfortunate if, in the wake of NCLB, educational progressives myopically and ahistorically wave the banner or join with those waving the banner of states' rights or local control against the federal government. In time they may well find themselves to have been their own worst enemy.

Now we have PPI speaking again

1. Weapons of D(d)emocratic Destruction

It is no great secret that No Child Left Behind is much more popular among the public than interest groups like the National Education Association (NEA) claim. This publication has repeatedly made that point. We reached that conclusion by analyzing public opinion data and spending time out around the country talking with real people and educators. Multiple polls show that as Americans learn more about the law and its specifics support grows. Note that these polls are conducted by Public Agenda--and take a look at who funds them.

As it turns out, according to a report in today's USA Today based on memos and data obtained by the paper, the NEA knew pretty much the same thing, too. It also knew that attacking the law and only arguing for more money was a losing political strategy.

From a purely educational standpoint the USA Today story is pretty unflattering stuff. Though certainly not flawless, NCLB is supported by civil rights organizations precisely because it is an important step forward for poor and minority students. It's not an indictment of public education to highlight and try to address the appalling equity problems that diminish the life chances of poor and minority students. But that policy argument is pretty well trod ground at this point.

What's new about the USA Today account is the political implication. The NEA has been urging, prodding, cajoling, and demanding that Democratic elected officials and presidential candidates attack or oppose NCLB and make funding a leading reason for doing so. Yet their polling clearly shows this posture to be at odds with public opinion. With friends like that, who needs Republicans?

This is no small matter because it relates directly to President Bush's ability to use No Child Left Behind as a fig leaf of compassion and moderation. Whether he is successful is largely a function of whether or not Democrats hand him an easy issue through outright opposition to the law. USA Today aptly characterized such a strategy as a "trap." Besides, with opportunities to critique President Bush's domestic policy record so plentiful, why tear down the singular progressive government action on his watch?

A lot of press coverage about "resistance" to NCLB -- resistance in no small part ginned up by the NEA -- has failed to look beyond the basic interest group model to accurately gauge support for the law. This is an old story. Organized groups opposed to general interest legislation are usually mobilized and vocal, while the benefits are generally diffuse and beneficiaries disorganized. But too often reporters have not demanded evidence beyond anecdotes or learned enough about the law themselves to ask the tough questions and probe whether NCLB opponents or proponents are selling them a bill of goods. When a powerful interest group is pretty obviously seeking to reframe a major issue this is no small matter either.

That is why this is bad news from a small 'd' democratic perspective too. In Federalist 10, James Madison warned of the challenges posed by factions in a popular regime. He concluded that factions could be restrained by controlling their causes or effects. The cause being liberty, he argued for tempering effects instead. A free press and informed debate, along with constitutional safeguards, are key bulwarks to check interests that are, in Madison's characterization, "adverse to the rights of other citizens, or to the permanent and aggregate interests of the community."

Whether or not opposition to NCLB rises to that standard, don't poor and minority students deserve a more honest debate about the law in the first place?

Further Reading:

"Democrats Attack School Reforms at Political Peril,"
USA Today Editorial (01/14/03):

"Reforms Rightly Criticized,"
Reg Weaver, NEA Rebuttal to USA Today Editorial (01/14/03):

— Leo Casey
Progressive Policy Institute: 21st Century Schools Project Bulletin: Vol 4, No 1


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