The accepted narrative of the American public education system is one of decline, educational "crisis," and systemic failure. Our public schools increasingly are segregated by race and class in the post-Brown era, while fundamental social inequalities persist among schools in regards to educational quality, financing, and outcomes. Long viewed as essential to the economic and democratic development of America's citizenry, our unequal system of universal public education has forsaken the "faces at the bottom of [the] well" in an era of deregulation and decreased social welfare funding. ...
Part I of this Article explores traditional conceptions of federalism as a negative limit on the executive, legislative, and judicial power of the federal government. This section identifies the core values associated with such conceptions of "negative federalism," while criticizing negative models as unprincipled and indeterminate. Part II examines the civic model of public education that pre-dated current education policy, while charting the historical expansion of the federal role in public education. This section argues that the values informing the Elementary and Secondary Education Act (ESEA), as influenced by the Brown v. Board of Education United States Supreme Court decision, recognize the important governmental role in maintaining educational equality. Part III analyzes the current federal role in public education under the traditional negative model of federalism. This section argues that a competitive view of federalism has come to influence public education policy in the modern era, whereby the appropriate role of government has come to be seen as one that promotes market competition. As a result, the original de-segregative and equalizing dimension of education federalism envisioned by the ESEA and Brown has been forsaken. Finally, Part IV advances an alternative positive conception of education federalism, which stresses the obligation of the federal government to address failures in the system of public education in a manner that accords with principles of social justice and democratic equality. This section then develops substantive policy principles to guide future reauthorizations of federal education law.
Sundquist, Christian B.
"Positive Education Federalism: The Promise of Equality after the Every Student Succeeds Act,"
Mercer Law Review: Vol. 68:
2, Article 3.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol68/iss2/3