Far Beyond Sports Betting: Education Mandates and Public School Testing

No Child Left Behind was regarded as a bad law and set of policies—so bad that conservatives, liberals, and libertarians successfully pushed for legislation to end NCLB and replace it with a smaller version (called Every Student Succeeds Act, ESSA).

The main problem with both laws is that they mandate certain achievement test scores in order for local public schools to receive federal funds.

Today’s ruling on sports gambling has strong implications for public school testing and funding. That’s not obvious—so what’s the story?

Let’s start with today’s Supreme Court ruling, striking down a federal law that prohibited all states, except Nevada, from regulating “competitive sports” wagering. Now, every state can enact a law—for example, to allow betting at venues in the state, and to collect revenue from wagering.

But the decision has immense implications beyond sports gambling—more than anyone can foresee today. Why is that?

Because the winner today— New Jersey—argued that the Tenth Amendment prohibited the federal government from “commandeering” its power to regulate sports gambling. 

To understand New Jersey’s point, look at the text of the 10^th Amendment: “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.” In other words, the amendment says that the federal government has only those powers specifically granted by the Constitution.

Look at the U.S. Constitution: It does not enumerate any power to Congress to regulate education. Moreover, education has traditionally been locally-funded, locally-controlled.

So look for lawsuits very soon to get state and local school boards out of the testing business. That won’t address the much stickier issue of funding for federal programs, such as Title I (funding for reading educators to bring students up to standards). 
Two options on the surface are (1) make funds available without any accountability to the U.S. Department of Education or (2) cutoff federal funds and let states end these programs or pick up the costs.

But this just scratches the surface of federal-state co-regulation.

If you are a liberal, you might be disappointed to learn that federal environmental regulation for clean water—which involves federal mandates to state and local governments to meet quality standards—will be at risk under this precedent.

If you are conservative, you might be disappointed to learn that Attorney General Sessions’ threats to withhold funding to local police departments in “sanctuary cities” will also be at risk because policing is a local power, not a federal mandate.

Taken to its extreme, today’s ruling calls the New Deal and the contemporary version of extensive federal powers into question. 

Many people will cheer this—but our nation’s history with “states’ rights” is epitomized by the picture for this post.