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States Rights--21st Century Style

Ohanian Comment: A point of information about Denis Doyle, who says he's reeling backwards over Vermont's actions. He was a co-author with David Kearns of Xerox and Lou Gerstner of IBM when each decided to expound on education principles. He has held a lot of governmet positions connected with education and is very involved in charter school advocacy.

From an an online bio: "With underwriting from Rockwell International, he wrote a yearlong series of sponsored editorials about education for The Atlantic and wrote the longest special section ever to run in BusinessWeek. Titled Children of Promise, it ran in the Corporate Elite issue."

In a slightly startling, entirely fascinating and thoroughly emblematic development, public schools in one state have decided to forego federal funding rather than submit to what they regard as onerous terms of participation in the federal No Child Left Behind Act (NCLB). “Backwards reels the mind,” as Pat Moynihan used to say.

To those of us raised in the aftermath of Brown v. Board of Education (now nearly fifty years ago) the very idea of states rights conjures up haunting images of white supremacists standing in the school house door: Arkansas’s Orville Faubus, Georgia’s Lester Maddox’s and Alabama’s George Wallace were among the most well known. In refusing to knuckle-under to the federal government they were a throwback to a segregationist past, the last vestige of a vanishing order, or so progressives thought.

Yet, it is one of the nation’s most progressive and enlightened states, Vermont, where the banner of state’s rights is being waved in the 21st century. Reported by The Bennington Banner in its September 23, 2003 issue:

Three more Vermont schools have decided not to take federal Title I money and the stricter student performance standards that come along with it under the No Child Left Behind Act.

While Vermont’s intransigent school districts draw on an old insurrectionist tradition, their legal foundation is sound. Thanks to the reserve powers clause in the 10th Amendment, powers not expressly given to the Federal government are reserved for the states. Education is such a power. Nowhere in the Constitution is Uncle Sam given authority over education; indeed, his only legal power in the education domain is to guarantee civil rights, due process and equal protection.

Special education enjoys special treatment because the original act (PL 94-142, signed by Jerry Ford) is cross-referenced to the Voc Rehab Act, making special education a civil right.

The other education statues on the Federal books are contingent upon states and localities voluntarily cooperating with the Federal government: no ticket, no laundry. Title 1, the best known and most expensive federal program, is enforced not as a civil right but as a contract: compliance with federal rules and regulations is the price of the gift. Neither school districts nor states are bound by statute to participate in ESEA or its successor legislation, NCLB. But if they want federal funds they must play by federal rules.

Looked at this way, it is remarkable that so little money – about six percent of total spending on K-12 – exerts so much leverage. Since its inception ESEA has been universally embraced. Though foot-dragging and prevarication were not unknown in the program’s history, no state refused to take federal money. Outright refusal to participate would have been a genuine novelty. Enter Vermont. What remains to be seen is how this drama plays out. If Vermont’s intransigent districts hold fast to their principles and refuse to back off they may simply forfeit federal money, case over. But it is equally likely that someone will sue to force compliance using the metaphor of radioactive dollars.­ The argument is simple: any federal funds that make their way to the districts in question (or the state of Vermont) infuse the whole enterprise with federal purpose and as a consequence require wholesale compliance.

Ironically, it will fall to a Republican Administration to advance the argument. It promises to keep the lawyers and pundits busy as bees.

It is no wonder that one of the most famous and oft cited quotes from a US Supreme Court opinion was that of Justice Louis D. Brandeis in 1932 in New State Ice Co v Liebmann, where he said “it is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”

Less often remembered is the fact that Justice Brandeis was writing for the minority at the dawn of the New Deal and a radically expanding federal role. Bringing Pat Moynihan to mind again. His answer, in his famous essay, What Do You Do When the Supreme Court is Wrong? was “wait,” as the court’s most enduring tradition is to reverse itself.

Denis P Doyle Comments encouraged: info@thedoylereport.com

— Denis Doyle
States Rights--21st Century Style
The Doyle Report


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