The Finch Formerly Known As Gold

27 February 2005

The food is terrible, and such small portions, too

According to Newsweek, a "bipartisan panel of state lawmakers" said that President Bush's "No Child Left Behind" Act is "unconstitutional, deeply flawed and lacks sufficient funding," the sort of statement which arouses the wrath of Quincy:

Either the law is unconstitutional and therefore must be eliminated, which I believe is the case under the 10th Amendment, or it needs to be fixed and funded better. Sorry, panel, you can't have it both ways.

Which they can't, or at least shouldn't. So I dialed over to the National Conference of State Legislators, the panel in question, and the final draft of their task-force report is now available. And they're not saying "unconstitutional," exactly. From the Executive Summary:

[NCLB] has questionable constitutional underpinnings. It pits the 10th Amendment, which reserves powers to the states, against the spending clause of Article I, which allows the federal government to attach conditions to grants it provides to the states. Although the spending clause often has trumped the 10th Amendment, the Supreme Court, in South Dakota vs. Dole and other decisions, has placed constraints on how Congress may exercise its powers under the spending clause. The Task Force is concerned that NCLB fails to meet two of the South Dakota vs. Dole tests: its grant conditions are not unambiguous and it uses coercion and not financial inducement to attain state participation.

But then they point to two NCLB provisions which theoretically could compensate for the "federalism imbalances" therein:

Section 9401 of Title IX gives the Secretary of Education broad discretion to waive requirements of the law. The Task Force views this as an important tool that could turn state and federal government efforts from their current focus on process and strict adherence to the letter of the law to outcomes and compliance with the spirit and goals of the law. The other tool, Section 9527(a) of Title IX, notes that state and local governments should not have to incur expenses for implementing NCLB that are not funded by the federal government nor should the law force states or schools to change their curriculum or instruction. The Task Force believes this language should give state officials leverage in their efforts to ensure that the law is not an unfunded or underfunded mandate.

That's the gist of Chapter 1. The remaining five chapters deal with "deeply flawed."

Quincy, I'm thinking, gives the "unconstitutional" angle more credence, as suggested in this earlier post:

Note that the above opinions are from the point of view of a libertarian temporarily resigned to the fact that eliminating the Federal DoE wholesale isn't an option. I figure, as long as it's there, it might as well do some good.

To the extent that it actually can do some good, I guess. I'm not entirely persuaded that it can.

Posted at 3:50 PM to Dyssynergy


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» More on You can't have it both ways from News, the Universe, and Everything
Dustbury.com did some deeper digging on the Newsweek piece I blogged on here. Apparently, the panel's finding was that the law was on constitutionally-questionable footing, not "unconstitutional"......[read more]