This Article will show the consistent ways that the current understanding of education federalism within the United States has hindered three of the major reform efforts to promote a more equitable distribution of educational opportunity: school desegregation, school finance litigation, and, most recently, NCLB. In exploring how education federalism has undermined these efforts, this Article adds to the understanding of other scholars who have critiqued these reforms and examined why the nation has failed to guarantee equal educational opportunity. For example, scholars have argued that the failure to undertake earnest efforts to achieve equal educational opportunity is caused by a variety of factors, including the lack of political will to accomplish this goal, the domination of suburban influences over education politics, and the failure of the United States to create a social welfare system that addresses the social and economic barriers that impede the achievement of many poor and minority students.1s In a past work, I also explored some of the reasons that these efforts have failed to ensure equal educational opportunity. In light of this literature, education federalism undoubtedly is not the only factor that has influenced the nation's inability to ensure equal educational opportunity. Nevertheless, it is important to understand the consistent ways in which education federalism has contributed to the ineffectiveness of efforts to ensure equal educational opportunity as scholars propose new avenues to achieve this paramount goal. In addition, in both past and future work, I argue that the nation should consider embracing a new framework for education federalism that would enable the nation to more effectively achieve its goals for public schools. Understanding how education federalism has hindered past reforms is an essential part of exploring how education federalism should be reshaped.
In addition, this Article also briefly highlights that when the Supreme Court and Congress limited reforms to advance equal educational opportunity, they harkened back to an extinct model of dual federalism and failed to acknowledge that, since the New Deal, the nation has moved to the increasing jurisdictional partnerships that are oftentimes labeled cooperative federalism.21 In this way, this Article engages some of the federalism scholarship. Furthermore, this Article notes that one possible explanation for some of the Court's decisions is that the Court may be claiming that federalism prevents it from acting when the Court lacks the will or an interest in ensuring that equal educational opportunity becomes a reality for all schoolchildren. Although it would be impossible to confirm if this explanation is accurate, this Article identifies the evidence that suggests that this behavior by the Court may be occurring. After noting this possibility, this Article then takes the Court at its word that education federalism is driving its decisions while exploring the ramifications of the Court's decisions for equal educational opportunity.
This Article proceeds in three parts. Part I examines how education federalism functioned as one of the critical impediments to school desegregation. Part II analyzes how education federalism has handcuffed the reach of school finance litigation. Part III critiques how education federalism has undermined the effectiveness of NCLB. This analysis reveals how the interrelated interests in maintaining the current balance of power between the federal and state governments and in preserving local control of education have limited the effectiveness of these reforms. By examining how education federalism has served as one of the central obstructions to reforms that sought to ensure equal educational opportunity, this Article concludes that future efforts to advance equal educational opportunity must undertake an analysis of how education federalism can be restructured to support all children receiving an equal opportunity to obtain an excellent education.
Kimberly Jenkins Robinson, The High Cost of The Nation's Current Framework for Education Federalism, 48 Wake Forest L. Rev. 287 (2013)