08.12.2010 0

States Forced to Take $10 Billion in Education Funds Should Sue

One overlooked provision in the $26.1 billion states bailout that the House passed on Tuesday, and signed into law by Barack Obama, requires states to accept federal funds for public teachers — whether the state approves it or not.

According to Section 101(8) of H.R. 1586, as a part of the $10 billion fund for states education spending, if a governor fails to apply for funding within 30 days, “the Secretary shall provide for funds allocated to that State to be distributed to another entity or other entities in the State … for support of elementary and secondary education, under such terms and conditions as the Secretary may establish.”

So, even if a governor refuses the funding, then the Secretary of Education can still force “another entity” in the state to accept the funding. Those “other entities” could be anybody, really. It could be members of the state legislature. It could be a local school board. It could be a local teachers union (which is technically composed of government employees). It could be a bureaucrat at the state’s department of education. It could be a single teacher. Who knows?

What is certain is that under the bill, states will be forced to keep education funding at pre-recession levels through Fiscal Year 2011, and through Fiscal Year 2013 for the state of Texas. According to Katherine Cesinger, Deputy Press Secretary of Texas Governor Rick Perry, “[H.R. 1586] mandates that the governor guarantee the Legislature will provide a certain level of state funding through 2013, a funding scheme prohibited by the Texas Constitution. It will be at least June 1, 2011, before the legislature passes and the Comptroller certifies the 2012-2013 budget.”

On Tuesday, Governor Perry issued a statement saying, “We’ll continue to work with state leaders, including the attorney general, to fight this injustice.”

When asked if that meant Governor Perry would sue against Section 101(8) of the bill, Cesinger replied, “We will review all of our options.”

One can hope so. As Americans for Limited Government President Bill Wilson noted on Wednesday, “This bill gives the federal government the power to administer state budgets and force unsustainable levels of funding on the states, a flagrant violation of the Tenth Amendment and state sovereignty. If states fail to push back against this usurpation, it will just be the first of many new federal mandates imposed on states.”

Section 101(8) did not go unnoticed in other deficit-ridden states. As noted in a statement issued by New Jersey Governor Chris Christie’s press secretary, Michael Drewniak, Tuesday, “the Governor will apply for the education funding passed by the House today in order to ensure it is managed and distributed to local school districts by the State of New Jersey, and not the federal government.”

Governor Christie’s position is clearly understandable, if not slightly disappointing. If the federal government is going to force the state to accept the funding anyway, then the distribution of the funds might as well be on New Jersey’s terms. On the other hand, accepting the funds under this basis tacitly accepts the federal government’s imposition.

At least the statement criticized the funding, saying, “Governor Chris Christie believes that using this type of non-recurring funding for operating expenses is ill advised because it will disappear after one year”. Of course, that being the case, why not fight against this federal usurpation?

Mississippi Governor Haley Barbour too issued a statement against the legislation on Monday, saying, “There is no justification for the federal government hijacking state budgets, but that is exactly what Congress has done.” Governor Barbour noted that preliminary estimates by the Mississippi Department of Finance showed that the state would have to divert anywhere between $50 million and $100 million from public safety, health services and other priorities to be given to education, just to be “eligible” for an additional $98 million for education.

And the worst part is, the state has no choice but to “accept” the funding. These usurpations will only get worse if the states do not push back. As George Washington warned in his farewell address, “[L]et there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.”

Robert Romano is the Senior Editor of Americans for Limited Government (ALG) News Bureau.

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