The federalism debate.

"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State."--James Madison, The Federalist Papers, #45

The role of the federal government has been hotly debated since the beginning of this nation. Yet well over 200 years later, the nation is engaged in a debate about the federal role in education policy.

The No Child Left Behind Act gave the federal government unprecedented responsibility over elements of educational policy previously left to states and localities. It does so because of an overriding and valid concern about the wide gap in student achievement. And yet, for all its interventions in the day-to-day business of running schools, the law still does not address the most critical element of the achievement gap: how much of it steins from factors outside the classroom. There seems to be acknowledgement of this in Washington, yet schools remain accountable for closing the achievement gap by 2014.

The federalism debate has been increasing in intensity since the passage of the law. It has been of particular concern to state legislators, especially Republicans. Nearly half the states are considering resolutions or similar actions requesting flexibility or more money from Washington.

Some states are considering bills stating they will comply only with elements of the law that are fully funded by the state government. At least 10 are conducting studies on the costs associated with NCLB.

Organizational Flaws

This debate is not surprising. State legislatures are accustomed to having control over education policy decisions such as the shape and strategy of the state's accountability system, the ways schools are punished or rewarded under that system and the shape of major teacher quality initiatives. While states do retain some flexibility, the primary strategies for educational change in NCLB--identifying schools in need of improvement, requiring transfers and supplemental services, the requirements for corrective action and restructuring, and the federal standards for highly qualified teachers--are strictly described and interpreted.

This is the first fatal flaw in NCLB--an organizational strategy that greatly expands federal influence in the classroom at the expense of state actors and local educators. It is rooted in a belief that educators and administrators are the source of the problem, when in fact it is only through the people doing the work in the schools that change will ever occur.

The federalism question has raised eyebrows in the legal community as well. The role of the federal government in local schools brings up critical issues in both constitutional and case law. Writing the LBJ Journal of Public Affairs last fall, University of Texas School of Law graduate Teresa Dahmus clearly explained the role of the 10th Amendment (relating to state and federal powers) and case law upholding state and local control over education as well as the background and history of the Elementary and Secondary Education Act.

ESEA took a significant step by providing funds for education and began attaching strings to that funding, which is permitted under the spending clause. But NCLB goes a step further by requiring that states report data for all schools, not just those receiving Title I funding, and requiring improvements for all students, not just those in Title I schools.

Further, the legislation gets into the very heart of classroom decision making by setting requirements related to testing schedules, math and science equipment, libraries, school prayer and much more. In doing so, Dahmus states, "This type of detailed legislation concerning the day-to-day operations of schools and classrooms is inconsistent with Congress' promise not to usurp the powers of the state over education."

But how did we get a law with such high levels of federal intervention, despite the lack of support in case law and the Constitution? Pervasive and well-founded concerns about the persistent achievement gap between our poorest, Hispanic and black students and our wealthier, white and Asian students has led to a misguided belief that our education system is broken and that educators and administrators aren't trying hard enough. Therefore, the law puts in place consequences aimed at removing children who are behind from the hands of the teachers and school leaders--through extra tutoring, transfer policies and school restructuring.

Education Flaws

Yet widespread acknowledgement exists in Washington and beyond that, while pockets of excellence exist where schools perform well with at-risk populations, most schools cannot close the achievement gap alone. So much of what causes the achievement gap is located outside of the classroom, including summer learning loss, family literacy, poverty and lead exposure.

Thus the law also is rooted in a flawed educational strategy that does not address the out-of-school roots of the achievement gap and, while taking the valuable step of requiring disaggregated data, fails to look beneath the data and address the reasons a child might be falling behind academically.

To be sure, local control, while an esteemed tradition for most communities, also has a tendency to lead to inequities of funding and quality of education. Despite that, the public still supports local control as a general concept and believes that local educators and leaders will have the best ideas about how to fix schools. Without relying on the expertise of local teachers and leaders, schools never will be able to address the achievement gap. A better balance of federal, state and local power over education needs to be established.

Terri Schwartzbeck is a senior policy analyst at AASA. E-mail: [e-mail]