Federalism and the No Child Left Behind Act: An analysis using constitutional, systems, and adaptive work frameworks

A four-frame analysis of NCLB was conducted. The first frame involved constitutional federalism as defined by the Guarantee Clause of the Constitution, the Tenth Amendment and its intersection with the Spending Clause, the Fourteenth Amendment, and the Eleventh Amendment. The historical context of each constitutional component was examined and presented in the belief that text without context fails to provide full understanding. 135 court cases, primarily Supreme Court cases, were examined using legal analysis procedures. Peter Senge's systems thinking formed the second frame, while the third frame centered on Ronald Heifetz's concept of the adaptive work required to close the gap between the vision (no child left behind) and the reality (achievement gaps). The fourth frame, federalism as a public policy approach, emerged from writings by Alexander Hamilton, James Madison, Justice Felix Frankfurter, and Akhil Reed Amar as well as opinions by Justices Brandeis and O'Connor. Federalism as a public policy views the federal and state governments as equal partners wherein states serve as laboratories engaged in experimentation to find solutions to complex problems. Comparative analysis and rational argument were used for the last three analytical frames. Historical research and analytical study broke new ground regarding: the thread of America's answer to Aristotle's question regarding a government based on the rule of law or of individuals; Madison's activities as reflecting both possible answers to Aristotle's question; the intertwining of treaty rights, the status of tribal governments, and citizenship rights for tribal citizens; and the substitution of argumentative tricks for sound analysis in recent Tenth and Eleventh Amendment jurisprudence. The following findings were reached: (1) NCLB possibly violates one or more of the conditional spending tests articulated in Dole v. South Dakota; (2) NCLB does not take a systems approach to the system of children's well-being in America; (3) NCLB treats a symptom (achievement gaps) and ignores the primary cause of those achievement gaps (poverty); (4) by treating a symptom as a cause, NCLB ignores the adaptive work needed to close the gap between NCLB's vision and the reality of achievement gaps primarily caused by inequitable distribution of incomes and poverty in America; (5) poverty exerts a primary force upon education that is negative, that acts as a fundamental factor impacting the system of children's well-being, and that inhibits a child's ability to fully benefit from education; (6) NCLB does not utilize a public policy approach based upon federalism; and (7) until the system of children's well-being is addressed, achievement gaps will persist. It is recommended that the amicus curiae brief submitted by the National Council of State Legislatures in Dole be used as a model for a constitutional challenge to NCLB. Since NCLB is an exercise in congressional conditional spending, it needs to be challenged on those grounds. Finally, constitutional challenges to NCLB will not matter in the absence of a systemic approach designed to confront the negative influences of poverty on the system of children's well-being in America.