The Failure of Education Federalism

Since the Great Recession of 2007–09, states have devoted even less money to public education and state courts have become even more hostile to structural reform litigation that has sought to challenge education funding and quality. Yet the current model of education federalism (dual federalism) leaves these matters largely to the states. As a result, state-level legislative inaction, executive acquiescence, and judicial abdication can combine to create a situation in which the quality of traditional public schools declines sharply. This is the case in Michigan, which is an unusually important state not only because the dynamics that are emerging in some other states are mature in Michigan but also because Michigan is the home state of Secretary of Education Betsy DeVos, who has influenced the state’s education policy substantially. Glaring gaps in educational quality like those in Michigan are not the federal government’s problem, and in some ways the federal government’s hands are tied when it comes to being part of the solution. This must change. Dual federalism does not reflect the current reality of many federal-state-local relationships, and it is sorely outdated in the context of public education. Accordingly, I argue for a larger, though by no means exclusive, federal role in K-12 public education with the goal of establishing a floor of educational quality for students across the country. In addition to proposing legislative and agency-based changes, I advance the novel litigation strategy of pairing a minimal educational quality right via Substantive Due Process with rational basis with bite review under the Equal Protection Clause. In these ways and others, we must move to a new model of federalism in education—cooperative federalism. Without this shift, a floor of educational quality will continue to be uneven both among and within states, and in more and more places like Michigan, the floor will rot and students will fall through.