Thursday, August 26, 2010

Competitive Federalism

By Mike Dorf

As a resident of New York State, I was pleased to see that the Empire State was among the winners of Round 2 of the "Race to the Top" for education grants from the federal government.  Yet there is something about the design of the contest that I find unsettling, even unseemly.

I am not complaining about the specifics of the contest.  The federal Dept of Education under Arne Duncan has more or less continued the general embrace of standards-based education reform begun under President Bush.  One can legitimately quibble with the way that policy has been pursued: Too great an emphasis on standardized tests; tying the fate of teachers, administrators, and whole schools to student performance in a way that may well demoralize educators and lead to perverse consequences; and insufficient recognition of the variation in local circumstances in designing systems of accountability (as decried here). Despite all of these worries, I am still broadly sympathetic to the standards-based school reform movement, which falls within the family of "new governance" approaches that I and others have sometimes called "democratic experimentalism."

My more particular misgivings about the Race to the Top concern the competitive nature of the enterprise.  In most programs of cooperative federalism, the federal government offers states money or some degree of regulatory autonomy in exchange for the states' agreement to abide by federal standards.  States can choose whether to accept the federal funds or, in the case of conditional pre-emption, whether to regulate pursuant to federal law, and if they do, they agree to be bound by the federal standards.  To be sure, given how large the sums of money can be, states often have little choice but to accept, and as a consequence, cooperative federalism can be somewhat coercive.  But at least in principle, each state decides how much autonomy to sacrifice to the feds.

By contrast, under the Race to the Top approach, even states that agree to be bound by the federal standard may not end up being funded if they do not come forward with proposals that are as attractive to the feds as those proffered by their sister states.  I call this "competitive federalism" because it pits states against one another in a competition to see which ones can come closest to the federal agenda.  And I think it's unseemly from the perspective of federalism insofar as it treats states as groveling suitors for the federal dollars.

Now I'll concede that in one respect, Race to the Top is simply a more honest, more transparent version of a phenomenon that happens in Washington all the time.  Whenever Congress is deciding whether to initiate or renew a civilian or military program or open or shut a military base, states and districts within states fight one another for the largest pieces of the pie--and the jobs that go with it.  Those fights occur within Congress and are fundamentally political.  By contrast, at least the criteria for Race to the Top are substantive and public.  So, one could say that an allocation device like Race to the Top is a substantial improvement over business as usual.

Yet in another sense, by making the interstate competition explicit, Race to the Top more explicitly and more publicly advertises that the states are in fact competing with one another to see which can do the best job of dancing to the federal tune.   I would not say that this or any other aspect of the Race to the Top procedure renders it unconstitutional, but I would think that the people (including some SCOTUS Justices) who care about the "dignity" of the states might be upset by the expressly competitive nature of Race to the Top.


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