Martin A. Kurzweil,
Disciplined Devolution and the New Education Federalism,
103 Cal. L. Rev. 565
Available at: http://scholarship.law.berkeley.edu/californialawreview/vol103/iss3/3
In the face of congressional gridlock and failed bureaucratic efforts to address evolving challenges, policy makers have increasingly turned to alternative governance frameworks. Three such frameworks are executive waiver of legislative schemes,enlistment of states to make policy under federal programs, and experimentalist collaboration between policy makers and citizens focused on continuous learning.Analysis of each framework in isolation has overlooked the fact that, in a growing number of significant federal programs, they interact to create a distinct and promising governance model, which this Article calls “disciplined devolution.” In these programs, a federal agency grants states waivers to design policies that deviate from a pre-existing legislative scheme, subject to a set of broad goals. The agency evaluates the initial plans and provides monitoring and feedback on their implementation. The agency also promotes collaboration with local stakeholders and benchmarks each state’s success against that of other states.
The Obama Administration’s education policies present a particularly vivid illustration of disciplined devolution. The Administration has used statutory waiver authority to allow forty-three states to replace the requirements of the No Child Left Behind Act with comprehensive education reform plans of their own devising, subject to ongoing monitoring for progress toward broad federal policy goals and efforts to incorporate stakeholders in decision making. Analysis of these education initiatives shows that disciplined devolution can promote innovation, foster locally tailored policy, and encourage continuous institutional learning. Beyond that, disciplined devolution also answers some of the most trenchant critiques of waiver, cooperative federalism, and experimentalism, by offering greater democratic legitimacy as well as greater accountability for process and outcomes. At the same time, the disciplined devolution model represents a fragile balance of centralizing and decentralizing forces. This Article identifies and recommends steps to avoid the risk that internal tensions or external shocks will destabilize the new framework and tip it into rigid bureaucracy or unaccountable devolution.