Amendment X to the U.S. Constitution reads:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
1. Read the following articles about No Child Left Behind.
2. Consider the main arguments of both authors and answer the following question:
Does NCLB and federal education policies support or violate the 10th Amendment?
Article A) No Child Left Behind Act: An intrusion on state's rights? By Robert S. Sargent, Jr.
web posted March 7, 2005
On January 29 of this year, the Executive Committee of theNational Conference of State Legislatures (NCSL) unanimouslyapproved the Final Report of the Task Force on No Child LeftBehind (The Report). According to their website (www.ncsl.org,where you can download the whole report) the "NCSL is abipartisan organization that…provides research, technicalassistance and opportunities for policymakers to exchange ideason the most pressing state issues." The Report is divided into sixchapters that analyze in detail the problems state legislators havewith mainly two questions: "What do we need to do to make thelaw work and how can we effect improvements to it throughadditional congressional or administrative actions?" According to The Report, the goal of the No Child Left BehindAct that President Bush modeled after his program in Texas is"…to close or dramatically narrow the differences inachievement among American students that cross lines of skincolor, ethnicity, immigrant status and wealth." In this column I willsummarize the problems given in The Report, and then showhow a state is currently dealing with these problems. Starting with Chapter 2 (I will come back to Chapter 1) the firstproblem is how to deal with the Act's standardized testing and"...holding schools accountable for their progress." It seems thatthere is "…an unnecessary level of rigidity and questionablemethodology." For example, "NCLB mandates that schools beevaluated by comparing successive groups of students against astatic, arbitrary standard, not by tracking the progress ofstudents over time." And, "The law improperly identifies schoolsas ‘in need of improvement' by creating too many ways to ‘fail.'"Finally, "The law allows students to transfer from schools foundto be in need of improvement before the school has anopportunity to address specific individual deficiencies." Chapter 3 deals with the fact that certain aspects of NCLB arein conflict with the Disabilities Education Act. Chapter 4addresses the fact that the NCLB "…imposes a uniform set ofrequirements that all schools must meet," while not recognizingthat "Many urban and rural schools face unique challenges ineducating students." Chapter 5 deals with the "highly qualifiedteacher clause" that "…is particularly problematic for hard-to-staff schools." And Chapter 6 deals with the costs of complyingwith the Act. "In the best case scenario, federal fundingmarginally covers the costs of complying with the administrativeprocesses of the law." Now Chapter 1: Is the Act itself constitutional? Past SupremeCourt decisions have held that it is constitutional if Congressblackmails the states by withholding money if states don't complywith a mandate. For example, if North Carolina doesn't pass astate law that meets Federal requirements for legal alcohol levelwhen driving, they will lose federal highway money. However,the federal government cannot coerce a state into complying witha mandate. We will see that last year when Utah asked thequestion, what if we just opt out of the Act? "…the U.S.Department of Education responded that not only would Utahlose its Title I funds, it would forfeit nearly twice that much inother formula and categorical funds…" That's coercion! (A billopting out of the Act was introduced last year by Rep. MargaretDayton. According to Rep. Dayton, the feds contribution toUtah of $105 million is "…about 5 percent of our state budget,but NCLB directs 100 percent of our state education. I didn'tfeel like it was worth that 5 percent." The Utah Senate didn'tagree.) The Report also addresses the other constitutional issue:the 10th Amendment. The Act "…pits the 10th Amendment,which reserves the powers to the states, against the spendingclause of Article I." For us Constitutional Conservatives, this isnonsense. The 10th Amendment couldn't be plainer: Education isnot an area that's delegated to the United States, therefore it isan area reserved to the states. Period. Unlike idealists like me, Isuppose that the NCSL must deal with reality. There actually is aDepartment of Education. Oh, well. Utah (the state that gave Bush his largest margin of victory) injust the last couple of weeks, is again challenging the Act.According to the Salt Lake Tribune, on February 18, "Membersof the Senate Education Committee unanimously passed twoUtah House measures meant to keep the federal No Child LeftBehind Act at bay. One was a resolution…to recognize Utah'sefforts to measure student competency and sustain qualityschools. The other was… (an) effort to mediate the powerstruggle between state priorities and President Bush's federalmandate to reform public schools with imposed standardizedtests." In other words, "state priorities trump NCLB – even if itmeans breaking the federal law." So how has Washington reacted? Tim Bridgewater, Gov. JonHuntsman Jr.'s education deputy said the bill "has been helpful inopening some dialogue with the Department of Education." Soon February 24, the Tribune wrote, "Federal education officialssay Utah's 8,500 veteran elementary school teachers are highlyqualified after all." On other issues? Bridgewater said, "We hit abit of an impasse…" Last week, Utah's unanimously passed billcompletely opting out of the Act now had the votes in theSenate, but the Bush administration put pressure on GovernorHuntsman, and the governor convinced the legislature to take nomore action until April 20 so that they would have more time tonegotiate with the feds. What does all this mean? When a state like Utah with legislatorslike Dayton, stands up to the federal government, it can getresults. It can also empower other states to action. Kim Cobb inthe Houston Chronicle wrote: "Fifteen states have introducedlegislation in the first two months of this year challenging the lawat a variety of levels…(and) many state leaders are taking theircue…from Dayton." For us Republicans who say we admire a Joe Liebermanbecause he has principles that he won't compromise, even to hisparty, we have to admire Ms. Dayton for her efforts to defendher state even against her president. And for us constitutionalists,we have to love a legislator who places her state's priorities overthe federal government. High five to the 10th Amendment!
Article B) "The Tenth Amendment Challenge?" By Steve Lilienthal October 12, 2005Congressmen.
Too few Congressmen take it upon themselves to appear before the debt clock that flashes the size of our mounting debts. The appropriation for the CDGB program is over $4 billion for FY 2005.The National Youth Anti-Drug Media Campaign. Most mature Americans do not promote use of illegal, addictive drugs, particularly by younger Americans. The Office of National Drug Control Policy (ONDCP) advertising and PR campaign urges Americans to talk to their children. It's a useful recommendation.The question needs to be asked: Given the current situation, there is one more reason for parents to talk to their children - to tell them about the bill we are passing on to them - the interest on the national debt -- thanks to our failure to curtail unconstitutional spending on programs like that of the ONDCP. The National Youth Anti-Drug Media Campaign received appropriations of $119,040,000 in FY 2005. Kids may be doing drugs but does ONDCP's media campaign have its own addiction problem?The Legal Services Corporation (LSC). The Constitution assures the accused in a criminal case a right to counsel. Ken Boehm, chairman of the National Legal and Policy Center, and Counsel to the Legal Services Corporation in the George Herbert Walker Bush Administration, points out, "There is no constitutional right to file a lawsuit at government expense."The attorneys funded by this quasi-government agency have the discretion to pick their cases and often they are tilting against businesses, farmers and landlords. A House Budget Committee report from the 1990s emphasized, "A phase-out of federal funding for LSC will not eliminate free legal aid for the poor. State and local governments, bar associations, and other organizations already provide substantial legal aid to the poor." Appropriations in FY 2005: $330,803,705 (after two rescissions).The National Endowment for the Arts (NEA). Americans spend over $25.5 billion on the arts. Other than very limited projects in consonance with portraying our national history, there is no reason for the hundred million or so spent by NEA. It's great work if you can get an NEA grant but providing a subsidy for the arts is simply not a function of the federal government assigned by our Constitution. Artists will not starve without the NEA; they just will have to compete harder for all the other money out there. NEA appropriations for FY 2005, including two modest recissions made by Congress, was $121,263,000.Two ideas that can be of use in attempting to rein in Big Government have been advanced by Rep. John Shadegg (R-AZ) and Sen. Sam Brownback (R-KS).Shadegg is sponsor of The Enumerated Powers Act (H.R. 2458), that would require each bill introduced in Congress to include a statement citing constitutional authority. Shadegg has introduced this bill in several Congresses. He argued in 2001 that the Enumerated Powers Act was needed because:"Our Founding Fathers believed the grant of specific rather than legislative powers to the national government would be one of the central mechanisms for protecting our freedoms while allowing us to achieve the objectives best accomplished through a national government. One of the most important things Congress can do is to honor and abide by the principles embodied in the Constitution -- no more, no less. Respecting the Tenth Amendment is the first way to ensure that the genius of the Constitution and its division of power between the national government,the States, and the people continues to guide our nation."If enacted, Shadeg's Enumerated Powers Act would become the constitutionalist version of Consumer Reports.After extensive research by the Free Congress Foundation, Senator Sam Brownback (R-KS) and Representative Todd Tiahrt (R-KA) have introduced the Commission on the Accountability and Review of Federal Agencies Act (S.1155 and H.R. ), more frequently referred to as "CARFA." Many conservatives, upon hearing the title of Brownback's bill, will instantly say, "The last thing we need is another commission examining the problem. We know what's wrong; what we need is action!" Brownback's bill, if enacted into law, would provide just that.CARFA members would be appointed by the President and the Congressional Leadership. They would undertake an extensive study of federal agencies and programs, specifically looking for those that are wasteful, duplicative or simply obsolescent.The bill does not specifically mandate a Tenth Amendment test. Pressure would need to be exerted on those who appoint, particularly those representing the more conservative party, to place commissioners who respect the purpose of the Tenth Amendment and want to see it reflected in Federal Government expenditures. The Commission would issue its recommendations in a report to Congress which then would vote up or down on the whole package.The Executive Branch and Congress have each proven themselves to be careless in recent decades when it comes to exercising appropriate caution in spending taxpayer money. Worse, they have ignored the Constitution and its limits on federal power.The result is mounting deficits, leading to large interest payments on the national debt. That is not the legacy we want to leave to posterity.It's time to start pruning the federal government. (Reforming "third rail" entitlement programs, such as Medicaid and Social Security, is vital but something which Congress and the Executive Branch habitually defer.)The Constitution is clear about what the responsibilities of the federal government are and Members of Congress have taken an oath to uphold the course charted by our Founding Fathers. It's time Congress started to apply "The Tenth Amendment Challenge" to domestic spending.
http://www.aim.org/guest_column/A4091_0_6_0_C/ (Article A link)
http://www.enterstageright.com/archive/articles/0305/0305nclb.htm (Article B link)
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