Controlling Agencies through the President’s Budget Process

It is obvious that the federal budget is central to the functioning of the administrative state. But a critical element about the federal budget is often missing from analyses of both the budget and the administrative state more generally: the way the President’s budget process—the year-round, continuous process of developing the new budget while executing the last one—provides a major source of control over agency policy choices, regardless of whether or how much Congress eventually appropriates at all. Scholars, practitioners, and observers of the administrative state ought to acknowledge this reality and consider its implications

Conditional Spending After \u3ci\u3eNFIB v. Sebelius\u3c/i\u3e: The Example of Federal Education Law

In NFIB v. Sebelius, the Supreme Court’s recent case addressing the constitutionality of the Affordable Care Act, the Court concluded that the expansion of Medicaid in that Act was unconstitutionally coercive and therefore exceeded the scope of Congress’s authority under the Spending Clause. This was the first time that the Court treated coercion as an issue of more than mere theoretical possibility under the Spending Clause. In the wake of the Court’s decision, commentators have expressed either the concern or the hope that NFIB’s coercion analysis may lead to the undoing of much of the federal regulatory state, which substantially relies on the spending power. This article argues that both this concern and this hope are misplaced. Taking federal education law as a test case for future coercion analysis—since federal funding given to the states for elementary and secondary education is second only to federal funding for Medicaid—the article concludes that NFIB’s coercion inquiry is unlikely to lead to much else being found unconstitutional. The major federal education laws, and by implication other conditional spending laws, will not likely find their demise under the Court’s analysis. Nonetheless, NFIB will likely have some effect on the future of federal education law. It should put a damper on calls to dramatically increase federal education funding; encourage the trend towards smaller grants of limited duration, especially those that bypass the states; result in some structural changes both in funding and enforcement; and, somewhat paradoxically for a decision that found the Medicaid enforcement regime coercive, may lead to greater federal enforcement of conditional spending laws

Book Review of The Future of School Integration: Socioeconomic Diversity as an Education Reform Strategy

The last decade has seen a quiet but steady expansion of interest in using socioeconomic diversity in schools to improve educational outcomes. Ten years ago, only a few school districts around the country used formal strategies to integrate their schools along class lines. Today, over eighty school districts around the United States, together educating around four million students, ensure that poor children are taught alongside middle-class and wealthier children through a variety of voluntary integration programs. The message of The Future of School Integration: Socioeconomic Diversity as an Education Reform Strategy, the important new book edited by Richard Kahlenberg, is simple: these strategies are more educationally effective than other reform strategies; they are more cost effective; and recognizing these facts has important implications for a number of pressing law-reform choices at the federal, state, and local levels

“Head Start Works Because We Do”: Head Start Programs, Community Action Agencies, and the Struggle over Unionization

In the summer of 2002, the city of Boston watched a fierce battle unfold between low-wage workers who provide child care and the social service agencies that employ them. Boston requires its city contractors to pay more than twice the federal minimum wage of $5.15 an hour to their employees, according to the terms of the city\u27s living wage ordinance. The social service agencies, which receive government subsidies to run their child care programs, claimed that they could not afford to pay this rate. These agencies mounted an intense legal and political campaign, arguing that they would be forced to lay off workers if the city did not exempt them from the living wage requirement, and that they would be compelled to cut off affordable child care for low-income working parents as a consequence. Child care workers, through advocacy groups, responded vigorously that the workers were no less in need of economic support than these low-income working parents, arguing that these are the very types of workers the law was intended to protect. Although this particular battle was new, the principles behind it were not. The conflict over the living wage waiver is reminiscent of another struggle that has been taking place around the country for more than a decade as teachers and other employees of Head Start programs initiate union drives and their nonprofit Community Action Agency employers attempt to thwart these efforts. Over the past fifteen years, the Service Employees International Union (SEIU), the United Auto Workers (UAW), the American Federation of State, County and Municipal Employees (AFSCME), the American Federation of Teachers (AFT), and other labor unions have embarked on union organizing campaigns at Head Start programs in Community Action Agencies (CAAs) across the country, from Boston to Houston, Hartford to Los Angeles, New York City to Cleveland, Minneapolis to Michigan. “Head Start works because we do,” one union’s slogan proclaims. Although some CAA employers have accepted the union drives without much rancor, labor strife between Head Start teachers and their employers has been a common story. Both the living wage struggle and the unionization conflicts manifest a strange tension. The avowed mission of many social service agencies, including the CAAs that operate Head Start programs, is to empower individuals, families, and communities in poverty and to assist them along the path to economic self-sufficiency. The labor movement and worker advocates claim similar goals. What, then, lies behind this clash, and what dynamics does the conflict create? More importantly, how can the parties move beyond this conflict and mutually support their common missions? Answering these questions is crucial, for the issues at the heart of this struggle are hardly going away. As living wage movements gain momentum around the country, as social service labor unions gain influence in the labor movement, as the nonprofit sector increases in prominence, and as the country turns its attention to early childhood education and to the low-wage labor market in the wake of welfare reform, the workforce that is the subject of the Head Start unionization battle stands at the center of important national concerns. This Note outlines initial answers to the questions above. After briefly describing the history and mission of CAAs and the Head Start program, and their intersection with the labor movement, Part I analyzes the practical, rhetorical, and legal arenas in which the battle over Head Start unionization is waged. Part II proposes strategies for change, offering legislative solutions, regulatory proposals, and preemptive problem solving and dispute resolution possibilities. My central thesis is that the labor movement and the CAAs that operate Head Start programs have many common interests and overlapping missions, and that the two sides in this conflict can and should move beyond competition to cooperation. The struggle over unionization is not simply about the distribution of an inadequate pot of money, so it is not a zero-sum game; beneath the specific points of contention lie opportunities for the parties to work together amicably to achieve better results. I focus on unions in Head Start programs, rather than on the living wage, because the union struggle has a much longer history, but I hope that lessons from the union struggle will inform the emerging living wage debate. In fact, the battle over the living wage may actually comprise the latest stage in the Head Start unionization conflict, since unions themselves have organized and supported several living wage campaigns in recent years. Understanding the history of this conflict is essential to changing its future

Advocates, Federal Agencies, and the Education of Children with Disabilities

The aim of this essay, prepared for a symposium on dispute resolution in special education held at The Ohio State University Moritz College of Law in February 2014, is to highlight ways that advocates for children with disabilities can use federal agencies to improve the implementation and enforcement of federal laws protecting children with disabilities in schools—that is, the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act as it relates to schools. One can spend a lot of time engaging with the contemporary public conversation about the law surrounding the education of children with disabilities without seeing much about the relevant federal agencies: the Office of Special Education Programs in the Department of Education; the Office for Civil Rights in the Department of Education; and the Civil Rights Division in the Department of Justice. For example, a great deal of the scholarly and advocacy discussion about the enforcement regime for special education law focuses instead on the role of private parties in enforcing the law. This vision of the relevant enforcement universe can be misleading for advocates who are not currently taking advantage of what the federal agencies can provide. It can also be misleading for students planning to practice in this arena; the leading casebooks, like the trend in the scholarship and advocacy material, say very little about engagement with federal agencies. This essay therefore takes a different tack. Instead of focusing on private enforcement, Congress, the courts, or the limitations of federal agencies, I want to capitalize on what is already possible within the agencies and explain how and why to take these possibilities seriously. The goal of the essay is to provide a guide to agency structure and jurisdiction that will help advocates understand more deeply how to approach each office in any given context. More generally, this essay is part of a broader agenda to conceptualize education law as a regulatory field, in order to expand the conventional understanding of both the field of education law and the workings of the regulatory state more generally

Federal Grant Rules and Realities in the Intergovernmental Administrative State: Compliance, Performance, and Politics

Federal grants are one of the government’s most important policy tools. While high-profile debates about constitutional coercion, entitlement reform, and budget cuts receive most of the public attention given to federal grants, a more prosaic but equally important reality describes the operation of these grants on the ground: the web of detailed rules and massive enforcement structure devoted to the administrative side of federal grants, which this Article refers to as “the grants-management regime.” Unacknowledged in the legal literature, the grants-management regime drives the implementation of federal grants and tells a very different story than the standard concern about feckless agency enforcement action of federal grants. That is, the powerful grantsmanagement regime creates strong incentives that unintentionally undermine grantees’ ability to accomplish the underlying policy purposes of their grants. By mapping out the rules and the institutional realities in relationships among congressional committees, the Office of Management and Budget, agencies, grantees, and auditors, the Article identifies unintended consequences that result from the grants-management regime and unwarranted assumptions on which the regime relies. The Article then develops reform options to improve the functioning of the system in light of the critical role federal grants play in contemporary American governance

The Future of School Integration: Socioeconomic Diversity as an Education Reform Strategy, Edited by Richard D. Kahlenberg (Century Foundation 2012), 397 Pages

The last decade has seen a quiet but steady expansion of interest in using socioeconomic diversity in schools to improve educational outcomes. Ten years ago, only a few school districts around the country used formal strategies to integrate their schools along class lines. Today, over eighty school districts around the United States, together educating around four million students, ensure that poor children are taught alongside middle-class and wealthier children through a variety of voluntary integration programs. The message of The Future of School Integration: Socioeconomic Diversity as an Education Reform Strategy, the important new book edited by Richard Kahlenberg, is simple: these strategies are more educationally effective than other reform strategies; they are more cost effective; and recognizing these facts has important implications for a number of pressing law-reform choices at the federal, state, and local levels

Block Grants, Early Childhood Education, and the Reauthorization of Head Start: From Positional Conflict to Interest-Based Agreement

In early 2003, the Bush administration proposed and Congress considered two types of highly controversial structural reform to Head Start, the federal program that since 1965 has provided early education and comprehensive health and social services to low-income preschoolers and their families. First, the proposal would begin funding Head Start through federal block grants to the states rather than through direct federal grants to local agencies. Second, the proposal would shift oversight of Head Start at the federal level from the Department of Health and Human Services (HHS) to the Department of Education (ED). Variations on these two proposals have been offered many times since Head Start was created, and each time Head Start advocates have successfully lobbied against them. This time is no different: neither the version of the reauthorization bill approved by the House in September 2005 nor the version of the bill currently awaiting consideration by the Senate contains either of these structural reforms. That these proposed reforms are no longer under active consideration has been held out as a victory by Head Start advocates, led by the National Head Start Association (NHSA) and joined by a variety of other advocacy organizations. This article questions that conclusion, and instead argues that Head Start advocates would do well to reconsider their long-held opposition to both changes. Much of the opposition to these changes stems from reflexive reaction and a history of mistrust instead of dispassionate policy analysis. The policy needs and doctrinal context that led to the original structure of the program -- for example, the need to bypass racist state governors who were willing to close down school systems to avoid integration, in an environment of almost limitless federal authority to create civil rights legislation -- are increasingly out of place in today\u27s world. In fact, Head Start is now an outlier with respect to other social welfare and education programs, which are largely funded by the federal government through block grants to the states; educational authorities are now turning towards comprehensive service delivery models that are the hallmark of Head Start programs; and the Supreme Court has sharply curtailed the atmospherics of limitless federal power in which context Head Start was created. This article proceeds in four parts. Section I traces the history of the conflict over proposals to change Head Start\u27s funding and organizational structure. I conclude that the dispute cannot easily be reduced to partisan politics and that the substance of the opposition has changed very little over the years, even though the particular proposals for structural change have been quite different. Section II examines the policy and doctrinal changes relevant to Head Start over the last forty years, arguing that the needs and expectations of the 1965 program have a very different resonance in the new millennium. Section III considers why the advocates have been so resistant to structural change, given these changed circumstances. The literature on negotiation theory and practice offers a helpful lens. through which to analyze the problem, especially in the literature\u27s distinction between positions -- the particular and opposing outcomes to which each side stakes a claim -- and interests -- the underlying reasons why each side finds its desired outcome appealing. I explore the benefits of paying attention to interests over positions, the perils of focusing on narrow positions, and the barriers to an interest-based process. Finally, Section IV proposes a way forward, offering an inclusive and participatory consensus-based process to help the parties consider and respond to the underlying interests behind their positions. The article concludes that an honest assessment of the role of Head Start in the country\u27s early childhood education and care movement could lead to structural experimentation that would benefit all concerned