President Trump signed an executive order Wednesday to start pulling the federal government out of K-12 education, following through on a campaign promise to return school control to state and local officials. The order, dubbed the “Education Federalism Executive Order,” will launch a 300-day review of Obama-era regulations and guidance for school districts and directs Education Secretary Betsy DeVos to modify or repeal measures she deems an overreach by the federal government. “For too long the government has imposed its will on state and local governments. The result has been education that spends more and achieves far, far, far less,” Mr. Trump said. “My administration has been working to reverse this federal power grab and give power back to families, cities [and] states — give power back to localities.” He said that previous administrations had increasingly forced schools to comply with “whims and dictates” from Washington, but his administration would break the trend. “We know local communities know it best and do it best,” said Mr. Trump, who was joined by several Republican governors for the signing. “The time has come to empower teachers and parents to make the decisions that help their students achieve success.”

This article provides an overview of the evolution of national administrative capacity and the implementation of federal education policy in the United States between 1965 and 2015 to examine the process by which federal power over schools has become institutionalized over time. The relationship between Washington and the states in the area of education has historically been predicated on cooperation rather than conflict, due to state education agencies’ long dependence on the Department of Education for a considerable portion of their budgets (about 40 percent on average), and because the federal government rarely interfered with core state education policies before the 1990s. (The department did, however, intervene forcefully on behalf of the civil rights of minority, English-language learners, and special education students in response to a series of Supreme Court rulings between 1950 and 1975.) The challenge in the post-NCLB era is that the feds have demanded that states develop new systems for tracking and disseminating student achievement data and intervening in struggling schools. States resent this new level of federal involvement and have struggled to meet all of the federal mandates. Consequently, as federal goals and methods have diverged from those of the states, the intergovernmental relationship has undergone a significant transformation. A central contribution of this article is thus to offer a detailed analysis of the new educational federalism in the post-NCLB era. It assesses how the policy mandates of the law have affected the institutional capacities and incentives for reform in state and federal departments of education to illuminate the administrative mechanisms through which this new federalism operates. Writing in the 1960s, Stephen Bailey and Edith Mosher articulate the many challenges to using federal power to drive school reform, challenges that continue to ring true today. “Both in the innovative and administrative aspects of public policy, a grant-in-aid agency must operate in a complex political environment. It must function in an intricate web of tensions spun by historical circumstance and by both coordinate and cross-purposes: congressional, presidential, judicial, group interest, intra-agency, inter-agency, inter-governmental, personal, societal, and even international. When as is the case with aid to education, the magnitude of Federal involvement is increased with dramatic suddenness, these tensions are particularly illuminated and exacerbated” (1968, vii).

Ross Douthat had an admirable column earlier this week arguing that, because we don’t really have strong evidence about the effectiveness of abstinence-only versus comprehensive sex-ed, we should just leave the issue to the states. Douthat says, accurately, that this battle is about “community values” more than public policy anyway. And, he concludes, values should be imposed, when they have to be imposed, at the most local level possible — no Berkeley values in Alabama, no Alabama values in Berkeley. But was this ever really a debate about public policy? If it were shown that abstinence-only education actually reduced teen pregnancy, would Berkeley types change their minds, or would their belief in what Douthat calls the “naturalist” view of sex continue to guide them? I think the latter. My intuition is that people who like abstinence-only education like it because they really, really don’t want their kids having sex, period, and people who like comprehensive sex-ed like it because they think teen sexuality is acceptable, maybe even desirable. It seems to me that the public-policy debate was always a proxy. Should moral values be imposed on the most local level possible? (Douthat says the issue should be “intensely local.”) I’m pretty sympathetic to that argument, but note that this isn’t really an argument for federalism, but for localism. There are a lot of variations between towns in the same state; Austin residents are probably going to feel differently about sex-ed than many of their fellow Texans. So, what Douthat’s argument logically leads to is a very fine patchwork of different sex-ed policies (or marriage policies, or abortion policies, or what have you). That result might have the virtue that people will usually be ruled by laws they morally approve of. But it might also entail that people will self-segregate in communities that share their values, and thus contribute to the already-vast divide between social liberals and conservatives. It might contribute to the feeling, which I hear a lot from my liberal friends and family, that we don’t or shouldn’t really share a country with people who are so incredibly different from us. It’s harder to feel that way if you share a community with such people, and see that, in addition to favoring laws you disapprove of, they also make good Little League coaches and friendly neighbors. In other words, federalism, taken to its extreme, might just threaten our national unity. I realize this is a hyperbolic conclusion for a little blog post about sex-ed, but I do generally think that this is the divide: Do you prefer proximity in law-making, or e pluribus unum in culture?

Every state constitution, in contrast with the Federal Constitution, contains some guarantee of education.18 State courts split into two groups on how to give effect to these guarantees: (1) by evaluating education policy under Equal Protection by declaring education a fundamental right or by treating wealth as a suspect classification,19 or (2) by evaluating education policies under a framework of educational adequacy.20 In either case, these clauses establish substantive educational guarantees on the state level that do not exist at the federal level and provide the courts with a role in ensuring the fulfillment of these guarantees.21 These clauses also help to create a valuable political dynamic, which has inured to the benefit of children. As part of this political dynamic, courts define the contours of these affirmative guarantees, and the legislature fulfills its own constitutional duty by legislating between those boundaries.22 However, when the federal government legislates or regulates in a given field, it necessarily constrains the ability of states to legislate in that same field.23 In the field of education, the ability of courts to protect the rights of children is dependent on the ability of legislatures freely to react to courts. As such, anything that constrains state legislatures also constrains state courts and upsets this valuable political dynamic created by the interaction of state legislatures and state courts. An expansive federal role in educational policymaking is normatively undesirable when it threatens to interfere with this political dynamic. This dynamic receives scant attention in the literature described above. However, mindfulness of this dynamic is crucial to the proper placement of the educational policymaking and regulatory epicenter. Constraints on state legislatures would not be as problematic if the federal government had proven itself adept at guaranteeing adequate educational opportunity for all students. However, RTTT and NCLB have, in some cases, proven remarkably unhelpful for poor and minority students.24 These negative outcomes, of course, are not guaranteed. However, the fact that federal involvement in education has produced undesirable outcomes for poor and minority students should cause policymakers to reexamine whether it is most desirable for the federal government to play such a significant role in education. This Comment argues that it is not. Using policies adopted in New York State in response to RTTT as an example, this Comment argues that the federal government should step aside to the extent necessary to allow state courts more flexibility to protect the substantive educational rights of poor and minority children. Specifically, where federal constitutional rights are not at issue, federal involvement in education should be minimized to the point that state courts have an unrestrained ability to protect the educational needs of, and ensure adequate educational opportunity for, each state’s children.25 This Comment does not argue for an end to all education policymaking at the federal level. Rather, it argues that the functioning of the state’s court-legislature dynamic should act as a limitation on the policies enacted at the federal level. The educational rights of poor and minority children in particular may be more efficiently safeguarded by putting the power in the hands of state courts and legislatures, whereas recent federal programs have taken that ability from the states in a way that may be detrimental to the nation’s youth. In particular, the expansion of the federal presence in the education arena has changed policymaking dramatically. Federal policy will be off limits to the remedial powers of state courts and legislatures, limiting the array of options they have when seeking to enforce constitutional guarantees of education. Unless state courts prove themselves unwilling and unable to deal with the structural problems created by educational policies, the federal government should assume a role that leaves sufficient space for state courts to operate.

The history of federal involvement in educational aid to indigent households is a history of federal scale diseconomies rendering ineffective the federal assistance. The essential difficulty is that assistance was directed to service providers, the incentives of which were imperfectly aligned with federal goals. In effect, the federal government had chosen an unreliable “machine” to subsidize. If the beneficiaries of the money were politically well-organized or had well-organized allies, then they could have come to the assistance of the federal government (and themselves). But indigent households lack the social capital of stably governed households, and the latter, far from wanting to assist the former in securing federal money, sought to appropriate that money for themselves. Moreover, the heterogeneity of the national population interfered with the federal government’s capacity to seek out more reliable allies: sectional controversy deterred federal use of religious education providers. The problems with misappropriation of federal aid began soon after Title I of the Elementary & Secondary Education Act (ESEA)94 was enacted in 1965. The ESEA provided up to $3 billion of aid (by 1970) to aid “local education agencies serving areas with concentrations of children from low-income families.”95 Within four years, however, a reputable study found that the money given to school districts was not actually spent on the education of low-income children.96 Moreover, the Martin-McClure study found that subnational governments made no effort to evaluate whether Title I money was being spent on classroom instruction that had any likelihood of improving socially disadvantaged students’ education.97 This finding was repeated by later studies showing that school districts systematically spent more on middle-income children than children from low-income households, largely because teacher salaries vary lockstep with seniority and the education of the teacher, insuring that dollars are not targeted to the teachers serving the neediest students.98 Aside from not being well-targeted towards low-income students, Title I and Head Start expenditures have consistently under-performed in producing educational results. Since the publication of A Nation at Risk, the federal government has increasingly demanded that recipients of federal aid for compensatory education test their students to show improvements in their learning.99 Despite almost thirty decades of increasingly strict accountability measures, however, the results have been disappointing.100 The cause of the subnational misdirection of ESEA money was not subnational fraud but rather the usual difficulty with intergovernmental aid: all money being green, school districts could offset the federal aid they received by re-directing state and local funds to serve noisier constituencies—middle-class parents in the suburbs and teachers in search of salary bumps unrelated to the teaching of low-income students. This pattern of subnational governments’ redirecting federal grants from assisting low-income households to local goals is not confined to educational grants: subnational agents ordinarily pursue local goals (for instance, economic development) with national resources unless carefully monitored by their national principal.101 Indeed, these local incentives to under-provide national goods are precisely the justification for the federal grant in the first place.102 The federal government has attempted to solve this problem of unfaithful subnational implementation by tightening national standards of curriculum and student evaluation. But the federal government itself is impeded by scale diseconomies that prevent it from controlling errant subnational behavior. The federal government lacks the fiscal tools available to subnational governments—in particular, capitalization of educational investments into property values— that could induce local voters to pay less attention to the fate of grant revenues than own-source revenues. That local voters focus less intensely on the fate of grant revenues than own-source revenues is a familiar point.103 By contrast with the parents and taxpayers of a school district, voters at the national scale pay little attention to federal reform efforts.104 Moreover, the federal governments’ threats to discipline the local school district for sluggish response to federal mandates are impeded by the small amounts of federal revenue at stake: threats to pull grants can be empty threats when the realization of the threat would injure the very constituencies that the feds are trying to aid.105 Parental social networks that might work at the local level are less effective at the national level. Ideological gridlock is most intense at the national level, and such strife has impeded the federal government’s ability to impose accountability measures. The re-authorization of “No Child Left Behind” has languished in legislative limbo since 2007 as Congress is paralyzed by partisan gridlock, and ethnocultural conflict has prevented the federal government from using private educational providers to induce greater fidelity from local school districts.106

Household autonomy, in short, implies federalism. The national government’s role can be limited to supplementing households’ and subnational governments’ incentives where educational programs have spillover benefits not captured by parents and homeowners and where, as a result, subnational government will tend to under-supply the good in question—for instance, military science (e.g., West Point) or aid to the indigent (e.g., Head Start). On the pessimistic side, I will suggest that the national government does not have a good track record of mobilizing households that lack stable governance to provide political support for its educational programs. Where the beneficiaries of federal educational programs have been stably governed households—for instance, family farms or children with learning disabilities— then those beneficiaries control the program and maintain its funding. Unlike stably governed households, however, households headed by indigent or single parents do not have the organizational capacity to mount strong political support for federal initiatives. Federal reforms for the benefit of these households are, therefore, perpetually at risk of being overwhelmed by ethnocultural divisions or cartels of educational providers—the same forces that stymie educational equality at the subnational level, but, at the federal level, further aided by the unwieldy bicameral and presidentialist legislative process that mires the national democracy in perennial gridlock. National interventions to promote educational equality, therefore, face a paradox of what Paul Peterson has called the mismatch between “functional” and “political” federalism.2 If the federal government focuses on its functional advantage of aiding constituencies that subnational governments neglect, then the federal reform may lack sufficient political support. But, if the federal government broadens its mandate to pursue generalized reforms of the K-12 curriculum, teacher evaluation, or testing of students, then they diffuse their revenue and regulatory effort in fixing that which is not broken—the subnational educational system catering to stably governed households. Worse yet, such federal reforms might break what does not need to be fixed, by eroding school districts’ reliance on local political networks and own-source revenue, characteristics that make those districts responsive to the demands of stably governed households. Uniform testing mandates or teacher evaluation standards may also provoke a backlash from middle-class suburban households who find federal reforms—for instance, testing mandates or curricular standards—to be a gratuitous impediment to what they regard as well-functioning schools. Like Plunkitt’s reforming “mornin’ glories,” reformers are not likely to have staying power unless they can find or create some “machine” with the political capacity to carry on the reform after the federal reformers have lost national power. Federal educational reformers, therefore, might be best advised to focus on the political over the technocratic: they might concentrate less on pedagogical reforms best designed to induce educational achievement and more on fostering subnational constituencies that will sustain federal reforms through the vicissitudes of national politics. Rather than anxiously specify pedagogical programs (“portfolio schools,” KIPP, Successful for All, etc.) to see which offers the best hopes for an upward tick in standardized test scores, reformers might instead focus on cultivating a constituency of grateful low-income parents by giving them the incentives and political skills to fight for their own educational interests. The ultimate goal should be to transform the beneficiaries of federal action into a constituency with the same political clout as the stably governed households that dominate subnational government. Otherwise, federal educational policy may become a recipe for policy-making ADD—in Charles Payne’s pungent phrase: “so much reform, so little change.”3

It's a matter of size. Education advocates suffer from severe bouts of Finland and Singapore envy. They tend to ignore that most of these nations have populations of 5 million or so, or about the population of Maryland or Massachusetts. Trying to make rules for schools in a nation that's as large and diverse as the U.S. is simply a different challenge. ADVERTISING It aligns responsibility and accountability with authority. One problem with tackling education reform from Washington is that it's not members of Congress or federal bureaucrats who are charged with making things work or who are held accountable when they don't. Instead, responsibility and blame fall on state leaders and on the leaders in those schools, districts and colleges who do the actual work. The more authority moves up the ladder in education, the more this divide worsens. It steers decisions towards the practical. No Child Left Behind promised that 100 percent of students would be proficient in reading and math by 2014. President Barack Obama wants to ensure that all students can attend community college for "free" – though most of the funds would come from states. It's easy for D.C. politicians to make grand promises and leave the consequences to someone else. State leaders must balance the budget and are answerable to voters for what happens in schools and colleges; this tends to make them more pragmatic in pursuing reform. [READ: The Best Way to Boost GDP: Education?] When policymakers are embedded in a community, as mayors and state legislators are, there is also more trust and opportunity for compromise. That kind of practicality might disappoint firebrands eager for national solutions, but it's a better bet for students than the wish lists and airy promises of Beltway pols. It leaves room for varied approaches to problem-solving. One of the perils of trying to "solve" things from Washington is that we wind up with one-size-fits-all solutions. No Child Left Behind emerged from a wave of state-based efforts to devise testing and accountability systems. Those state efforts were immensely uneven, but they allowed a variety of approaches to emerge, yielding the opportunity to learn, refine and reinvent. That's much more difficult when Washington is seeking something that can be applied across 50 states. It ensures that reform efforts actually have local roots. The Obama administration's Race to the Top program convinced lots of states to promise to do lots of things. The results have been predictably disappointing. Rushing to adopt teacher evaluation systems on a political timeline, states have largely made a hash of the exercise. Free college proposals make the same mistake; they depend on states and colleges promising to spend more money and adopt federally sanctioned reforms, an approach that seems destined to frustrate policymakers' best-laid plans. [READ: Knowledge Is Literacy] To be sure, local control has its downsides. Local school politics tend to be dominated by interests like teachers unions. School boards are often parochial and shortsighted. And the federal government is uniquely positioned to do some jobs that states can't, like providing a national bully pulpit to spotlight problems, funding research and promoting interstate transparency. The feds also have opportunities to take on the dominance of entrenched local interests by playing a "trust-busting" role. Federal recognition of alternative approaches like charter schools, nontraditional teacher licensure programs and innovative postsecondary programs can challenge incumbents' privileged market position. Federal funding is another trust-busting lever; wherever possible, reformers should ensure that public dollars flow to students and families and empower them to choose. Rather than write prescriptive rules that all schools must obey, trust-busting gives local problem-solvers an opportunity to change politics and policy from the bottom up. But the feds are not well equipped to fix schools. More to the point, getting Washington involved undermines the many benefits of state-driven reform in our federal system. Limiting the federal government's role in education isn't a slogan, it's a way to ensure that American education is both accountable to the public and dynamic enough to meet today's challenges.

Despite these federal efforts, sex education policy is mostly decentralized. And, since states may have multiple policies governing the teaching of sex education, the overall policy picture is fairly complex. For example, states that require that sex education be taught may vary considerably in terms of what, if any, curriculum they specify. Meanwhile, a state that has no specific policy on sex education may still “recommend” that educators take a particular course of action or even specify that a school district opting to offer sex education adhere to a particular curriculum. Even within an individual state, there may be differing policies governing mandates for education about contraception or abstinence and instruction on HIV/AIDS and other STDs. In fact, more states require schools to offer specific HIV or STD education than general sex education. It is also common for states to have different requirements for students in different grade levels. These policy distinctions among and within states are often lost in the larger debate about sex education. As of December 1, 2001, 22 states require that students receive sex education and thirty-eight states require that students receive instruction about HIV/STDs:14 • Twenty-one (21) states require schools to provide both sex education as well as instruction on HIV/STDs (AK, DE, FL, GA, HI, IL, IA, KS, KY, MD, MN, NV, NJ, NC, RI, SC, TN, UT, VT, WV, WY). • Seventeen (17) states require instruction about HIV/STDs, but not sex education (AL, CA, CT, ID, IN, MI, MS, NH, NM, NY, ND, OH, OK, OR, PA, WA, WI). • One state requires sex education, but not STD instruction (ME). Specific requirements about what should be taught are also on the books in a number of states. Thirty-four (34) states require local school districts that offer sex education to teach about abstinence: Nine require that it be covered (CT, DE, FL, GA, KY, MI, NJ, VT, VA) and twenty require that it be stressed (AL, AZ, AK, CA, HI, IL, IN, LA, MD, MS, MO, NC, OK, OR, RI, SC, TN, TX, UT, WV). In addition, thirteen of these states require local school districts that do offer sex education to cover information about contraception (AL, CA, DE, HI, MD, MO, NJ, OR, RI, SC, VT, VA, WV), but no state requires that birth control information be emphasized. Thirty-five states (35) give parents some choice as to whether or not their children can receive sex education or STD instruction (AL, AZ, CA, CT, FL, GA, ID, IL, IA, KS, LA, MD, MA, MI, MN, MS, MO, MT, NJ, NV, NY, NC, OK, OR, PA, RI, SC, TN, TX, VT, VA, UT, WA, WV, WI).15 Most of these states give parents the option of withdrawing their children from the courses. Three of these states (AZ, NV, UT) say that parents must actively consent before the instruction begins, while one of these (AZ) has an opt-out policy for STD education while requiring parental consent for sex education. Of the states with “opt-out” policies, five require that it be due to a family’s religious or moral beliefs.