Nullification, NCLB, and the Commerce

Clause

That Nullification Issue

It just won’t die....that 10th Amendment

Tenth AmendmentDo the states have a right to nullify federal law?

•1941 US v Darby - No! Tenth does not give states right to void federal law

•1976 National League of Cities v Usery - Yes! fed. gov’t doesn’t have the right to extend min. wage and max. hours to state/local level

•1985 Garcia v San Antionio Metro- No! overturns Nat’l League and says up to Congress not courts to decide which state actions can be regulated by fed gov’t

NCLB and 10th Amendment

The language of NCLB speaks to the sweeping authority intended by its passage: "The purpose of the title is to ensure that all children have a fair, equal, and significant opportunity to obtain a high-quality education and reach, at a minimum, proficiency on challenging state academic achievement standards and state academic assessments." To accomplish this, NCLB sets extensive requirements for states, including establishing an accountability system and staffing schools with high-quality professionals.

NCLB and 10th Amendment

Past court decisions, most notably San Antonio v. Rodriguez (1973), have declared that the Constitution does not establish, either explicitly or implicitly, education as a right or delegate the authority over schools to the federal government. Instead, education is within the domain of state and local governments. As the U.S. Supreme Court said in the celebrated 1954 Brown v. Board of Education opinion, "Education is perhaps the most important function of state and local governments."

NCLB and 10th Amendment

No Child Left Behind requires all public schools to administer a state-wide standardized test (all students take the same test under the same conditions) annually to all students.

The students' scores are used to determine whether the school has taught the students well. Schools which receive Title I funding through the Elementary and Secondary Education Act of 1965 must make Adequate Yearly Progress (AYP) in test scores (e.g. each year, its fifth graders must do better on standardized tests than the previous years).

NCLB and 10th AmendmentIf the school's results are repeatedly poor, then a series of steps are taken to improve the

school.

Schools that miss AYP for a second consecutive year are publicly labeled as being "in need of improvement" and are required to develop a two-year improvement plan for subject that the school is not teaching well.

Missing AYP in the third year forces the school to offer free tutoring and other supplemental education services to struggling students.

If a school misses its AYP target for a fourth consecutive year, the school is labeled as requiring "corrective action," which might involve actions like the wholesale replacement of staff, introduction of a new curriculum, or extending the amount of time students spend in class.

The fifth year of failure results in planning to restructure the entire school; the plan is implemented if the school fails to hit its AYP targets for the sixth year in a row. Common options include closing the school, turning the school into a charter school, hiring a private company to run the school, or asking the state office of education to directly run the school.

NCLB and 10th AmendmentProblems with this:

* schools “redistrict dropouts” to tweak data

*schools make the standardized tests- Missiouri openly admitted they lowered the standards so their students would make AYP

*teachers teach to the test - vs. - world view of American students and their abilites to think creatively

* tends to be an incentive against gifted and talented students

NCLB and 10th Amendment

The bulk of the new accountability requirements are tied to the Title I, Part A program for disadvantaged students, which is the largest source of federal funding for elementary and secondary education.

Arguing that the costs of complying with some of the new accountability measures far outweigh what they receive in federal funds, a number of states and school districts have protested what they perceive as a lack of federal assistance for some of the act’s more controversial requirements, such as the testing and school choice provisions

Commerce Clause

Under what court case?

Commerce ClauseGibbons v Ogdennot just mov’t of goods but more now - radio signals, internet, insurance transactions

source of national power as long as Congress employed its power for economic development through subsidies and services for business interests

interpretation changed through history - how?

Commerce Clause1995 United States v Lopez Gun Free Zone Act of 1990 (in schools) exceeded Congress’ power because guns have nothing to do with commerce

2000 in United States v Morrison - the power to regulate interstate commerce doesn’t include the ability to enact Violence Against Women Act

1997 Mack v United States - SC voided the Brady Hangun Voilence Prevention Act b/c fed gov’ t was dictating to local police officers what to do.

National Supremacy

Under what court case?

National Supremacy

Read and complete the worksheet on McCullough V Md