Positive Education Federalism: The Promise of Equality after the Every Student Succeeds Act

This Article examines the nature of the federal role in public education following the recent passage of the Every Student Succeeds Act in December 2015 (“ESSA”). Public education was largely unregulated for much of our Nation’s history, with the federal government deferring to states’ traditional “police powers” despite the de jure entrenchment of racial and class-based inequalities. A nascent policy of education federalism finally took root following the Brown v. Board decision and the enactment of the Elementary and Secondary School Act (“ESEA”) with the explicit purpose of eradicating such educational inequality. This timely Article argues that current federal education policy, as embodied by ESSA, has displaced the federalism values of Brown v. Board and the ESEA in favor of classic market principles of deregulation, competition, consumer choice and accountability. This Article thus critiques the current manifestation of education federalism as abdicating the federal government’s constitutional responsibility to intervene in public education when necessary to decrease race and class based education disparities. In so doing, this Article develops a positive conception of education federalism and provides policy recommendations for future congressional reauthorizations of the ESEA