The Federal Role in the Federal System: the Dynamics of Growth

THE FEDERAL ROLE IN THE FEDERAL SYSTEM: THE DYNAMICS OF GROWTH

Volume I A Crisis of Confidence and Competence 1. The Question of Federalism: Key Problems 2. Indicators of Federal Growth 3. The Scope of the Federal Role Report Volume II The Condition of Contemporary Federalism: Conflicting Theories and Collapsing Constraints 1, Alternative Perspectives on Federalism 2. Breakdown of Constitutional Constraints; Interpretive Variations from the First Constitutional Revolution to the “Fourth” 3. Government UnLocked: Political Constraints on Federal Growth Since the 1930s 4. Financing Federal Growth: Changing Aspects of Fiscal Constraints 5. Governmental Growth: Conflicting Interpretations in the Social Sciences Volume 111 Public Assistance: The Growth of a Federal Function Volume IV Reducing Unemployment: intergovernmental Dimensions of a National Problem Volume V intergovernmentaiizing the Classroom: Federal involvement in Eiemen- tary and Secondary Education Volume VI The Evolution of a Problematic Partnership: The Feds and Higher Ed Volume VII Protecting the Environment: Politics, Pollution, and Federal Policy Volume V//l Federal Involvement in Libraries Volume IX The Federal Role in Local Fire Protection Volume X An Agenda for American Federalism: Restoring Confidence and Com- petence 1. American Federalism 1960-1980: Contrasts and Continuities 2. The Dynamics of Growth in Federal Functions: An Analysis of Case Study Findings 3. The Federal Role: Criteria, Assessment, and Analysis 4. issues and Recommendations YlllimiXlHearings on the Federal Role Intergovernmentalizing the Classroom: Federal Involvement in Elementary and Secondary Education

ADVISDRY COMMISSION ON INTERGOVERNMENTAL RELATIONS Washington, D.C. 20575 l March 1981

Foreword

he Advisory Commission on Intergovern- (6) recommend, within the frame- T me&l Relations (ACIR] was established by work of the Constitution, the most de- Public Law 380, which was passed by the first sirable allocation of governmental session of the 86th Congress and approved by functions, responsibilities, and rev- the President on September 24, 1959. Section 2 enues among the several levels of of the act sets forth the following declaration government.. of purpose and specific responsibilities for the Pursuant to its statutory responsibilities, the Commission: Commission has from time to time been requested by the Congress or the President to Sec. 2. Because the complexity of examine particular problems impeding the ef- modern life intensifies the need in a fectiveness of the federal system. The 1976 re- federal form of government for the newal legislation for General Revenue Sharing, fullest cooperation and coordination Public Law 94-488, mandated in Section 145 of activities between the levels of gov- that the Commission: ernment, and because population growth and scientific developments study and evaluate the American portend an increasingly complex so- federal fiscal system in terms of the ciety in future years, it is essential that allocation and coordination of public an appropriate agency be established resources among federal, state, and to give continuing attention to inter- local governments, including, but not governmental problems. limited to, a study and evaluation of: It is intended that the Commission, (1) the allocation and coordination of in performance of its duties, will: taxing and spending authorities between levels of government. including (I) bring together representatives of a comparison of other federal govern- the federal. state, and local government systems. (5) forces likely to af- ments for the consideration of com- fect the nature of the American fed- mon problems. eral system in the short-term and long- (5) encourage discussion and study term future and possible adjustments at an early stage of emerging public to such system, if any, which may be problems that are likely to require in- desirable, in light of future develop- tergovernmental cooperation. ments. The study, The Federal Role in the Federal identify historical and political patterns in the System: The Dynamics of Growth, of which the development and expansion of national gov- present volume is one component, is part of the ernmental domestic activities. This case study Commission’s response to this mandate. Staff on the federal role in elementary and second- were directed to: (a] examine the present role ary education is one of seven prepared by of the federal government in the American fed- Commission staff pursuant to this assignment. eral system: (b] review theoretical perspectives on American federalism. the assignment of Abraham D. Beame functions. and governmental growth; and (c) Chairman

iv Acknowledgments

his volume was prepared by the government- T’al structure and functions section of the Commission staff. Timothy J. Conlan was responsible for the research and preparation of the case study. Anne H. Hastings provided valuable assistance in preparing the final version of the report. Other members of the Com- mission staff, especially David R. Beam, project manager, and Cynthia Cates Colella, analyst, reviewed the manuscript and provided helpful suggestions. Delores Dawson and Kath- leen M. Behringer valiantly performed the secretarial tasks involved. Special thanks go to the following scholars who reviewed and commented on a prelimi- nary version of this report: Dr. Edith K. Masher of the University of Virginia; Dr. Jerome T. Murphy of Harvard University; and Dr. Mary Frase Williams of the National Conference of State Legislatures. Full responsibility for content and accuracy rests, of cowse, with the Commission and its staff.

Wayne F. Anderson Executive Director

David B. Walker Assistant Director

Contents

Chapter 1. The Scope of Federal Involvement in Elementary and SecondaryEducation ...... 1 The Growth of Federal Involvement ...... 2 Regulations and the Courts ...... 8 Chapter 2. Creation of a Federal Role in Education-The Early Phases, 1785-1940 ...... 11 The Ordinances of 1785 and 1787 and the Early Federal LandGrants ...... 11 Federal Aid to Education in the Reconstruction Era ...... 12 The Federal Department of Education ...... 13 1 The Hoar Bill ...... 13 The Land Grant Proposals ...... 14 Federal Cash Grants for Education ...... 15 Federal Aid to Education, “The First Phase” ...... 16 Federal Aid in the Early 20th Century ...... 17 Chapter 3. The Contemporary Period: Categorical Assistance and The Drive for General Aid ...... 19 Impact Aid ...... 21 Federal Aid for School Construction ...... 22 The National Defense Education Act: A New Program of Specialized Federal Assistance ...... 23 Federal Aid and Presidential Politics, 1959-60 ...... 25 More Years of Failure-Federal Aid Controversies. 1961-64 ..... 26 Chapter 4. Passage of The Elementary and Secondary Education Act: The Long Awaited Triumph ...... 31 Policy Initiation ...... 32 Congressional Passage ...... 34 Chapter 5. New Controversies and Old: The Politics of Implementation ...... 37 Issues in Implementing Ambiguous Law ...... 37

vii Education and Civil Rights ...... 38 The Congressional Response. 1966 ...... 40 The Congressional Response, 1967 ...... 41 Chapter 6. Federal Aid to Education Under Fire: The Nixon Years ... .43 The Politics of the Education Budget...... 46 Education and the Politics of Race: Limiting Federal Desegregation Activity ...... 47 Education Revenue Sharing: Reducing the Federal Role .48 The Nixon-Ford Years Evaluated ...... 50 Chapter 7. The Role of the Federal Courts in Education ...... 53 The Judicial Role in School Desegregation ...... 54 Other Equal Protection Issues ...... 56 The First Amendment Cases: Religion and Free Speech ...... 58 Religion and the Schools ...... 58 Education and Free Speech ...... 59 The Judicial Role in Education: An Overview ...... 59 Chapter 8. Contemporary Issues of Federal Involvement In Education ...... 6 1 Federal Regulation of Elementary and Secondary Education: A Continuing Controversy ...... 62 Recent Additions to Federal Regulation ...... 63 The Politics of Regulation ...... 63 A Federal Department of Education ...... 65 Tuition Tax Credits ...... 68 Chapter 9. The Political Dynamics of Federal Involvement in Elementary and Secondary Education ...... 71 Political Actors and the Policy Process ...... 71 Federal Aid, the Development Phase, ...... 71 Federal Aid, the Enactment Phase ...... 74 Federal Aid, the Implementation Phase ...... 74 Federal Regulatory Policy ...... 76 The Process of Judicial Policymaking ...... 76 Constraints on Federal Involvement in Elementary and SecondaryEducation...... 7 7 Constraints on Federal Court Activity, ...... 78 Forces and Rationales of Federal Involvement ...... 79

Tables 1. Historical Summary of Public Elementary and Secondary School Finance, 1919.50 2 2. Number of School Districts, 1929.30 to 1976-77 .4 3. Estimated Expenditures of Public Elementary and Secondary Schools, by Source of Funds, 1959-60 to 1977-78 .5 4. Federal Funds for Selected Elementary and Secondary Education Programs and Related Activities, 1960.78 .6 5. Federal Elementary and Secondary Education Programs and Fiscal Year 1977 Appropriations to Date, by Major Purpose .7 6. Public Law 874.1950-51 and 1959-60 .22 7. Federal Funds for Elementary and Secondary Education, Fiscal Years1957.60 ...... ~.. .25 8. Funding History of Bilingual Education and State Handicapped Programs,1969-76 ...... 50 9. Federal Court Cases Affecting School Organization, Adminis- tration, or Programs. 1789-1971 .54 10. National Public Opinion Surveys Concerning General Federal Aid to Education, 1943-61 .73 11. National Public Opinion Surveys Concerning Federal Aid to Parochial Schools, 1938-64 73 12. Proportion of Federal Aid Supporters Favoring Various Programs,1961 ...... _...... ~...... 73 13. Congressional Origins of Federal Regulations .76

Charts 1. Percent of Illiteracy in the Population, by Race: United States, 1870-1969 3 2. Number of High School Graduates for Each 100 Persons 17 Years of Age: United States. 1869-70 to 1976-77 3

Figures 1. Federal Programs for Elementary and Secondary Education and Related Activities, 1787)1979 8 2. Historical Summary of Rationales for Federal Involvement inEducatIon ...... 80

Chapter I The Scope Of Federal Involvement In Elementary And Secondary Education

It used to be soid that the Minister of Ed- ucation in France could look at his watch and soy with confidence: “At this moment, every sixth-grade child in France is doing the following problem in moth. ’ owever exaggerated, this anecdote suggests H the relative degree of decentralization characteristic of American education. To this day, the federal role in elementary and secondary education remains unquestionably secondary ’ to that of state and local government. The federal Department of Education [ED] continues to have only limited and indirect influence over such central educational functions as school curriculum. standards. and personnel. The federal contribution to total educational expenditures is only about 8%, and this proportion has remained relatively constant for the last decade. As recently as 1974. the Supreme Court declared that:

No single tradition in public education is more deeply rooted than local control over the operation of schools: local autonomy has long been thought essential both to the maintenance of community concern and support for public schools and to the quality of the educational process.*

The federal role in ba,sic education is an important one, however, and much more so than

1 it was only 20 years ago. For example, in fiscal have had an important and growing influence 1979, the federal government spent $6.7 billion on a variety of state and local educational on elementary. secondary, and vocational edu- practices. particularly in cases of court-ordered cation.3 Outlays in 1980 are expected to be over desegregation. $7.3 billion.’ These funds are provided in approximately 50 federal programs directly con- THE GROWTH OF FEDERAL cerned with elementary and secondary edu- INVOLVEMENT cation.s Equally important is the character of federal Until World War II, the permanent federal involvement. The federal government has as- role in elementary and secondary education sumed an activist posture in education, which was almost negligible. The propriety of any has served to magnify the impact of its modest federal involvement remained an issue of con- fiscal role. Most federal programs stress na- tention well into the 1950s. Federal spending on tional purposes which Congress believes have elementary and secondary education lagged far been inadequately addressed by state and local behind that of most other domestic functions, authorities. These objectives may even he at including the less visible field of higher educa- odds with local priorities. There are programs tion. Federal spending did not reach $100 mil- designed to: lion until 1947, and the federal share of educational expenditures was less than 3% until l aid the economically, physically, and 1950 (see Table lj. Only in vocational educa- educationally disadvantaged: tion was the federal presence very significant, l provide auxiliary educational and social and even this did not represent a very large services; commitment of funds. l promote new educational skills; In these years prior to significant federal in- l stimulate educational innovation: and volvement, American education was undergo- l support educational research. ing dramatic development and change. Illiter- acy rates fell precipitously as compulsory In addition, these federal grant programs are public education became widespread [see conditioned by laws and regulations designed Chart 1). The number of high school graduates to eliminate racial and sexual discrimination grew steeply in return [see Chart 2):The or- and to promote student rights and the rights ganizational structure of education was also of the handicapped. Finally, the federal courts evolving. By 1960, there were only one-third as

Table 1 HISTORICAL SUMMARY OF PUBLIC ELEMENTARY AND SECONDARY SCHOOL FINANCE, 1919-50 (in thousands of dollars) 1919-20 1920-30 1939-40 1949-50 Total Revenue Receipts 5970,120 52,088.557 52.260.527 $5,437.044 Federal Government 2,475 7,334 39,810 155,848 State Governments 160.085 353,670 684,354 2.165.689 Local Sources, including intermediate 807.561 1,727,553 1,536,363 3,115,507 Percent of Revenue Receipts From: Federal Government .3% .4% 1.8% 2.9% Slate Governments 16.5 16.9 30.3 39.8 Local Sources, including intermediate 83.2 82.7 68.0 57.3 SO”RE U.S. Department Of Health, Education. and Welfare, National center for Education statistics. Digest a, Education statistics ,979, Washington. DC. U.S. Government Printing Office. ,979. p. 38.

2 Chart 1 PERCENT OF ILLITERACY IN THE POPULATION, BY RACE: UNITED STATES, 1870-1969

60 P ‘\ ‘. ‘\ '. Black and other races' 60 . '. l . / 8. ‘\ E ‘. 40 '. '. g '\ '. l! '. '\ TOM 20. 'L_ -5-_ White / --.- ---. a --Z ------____ --- 04 1670 1900 1930 1960

NOTE: mta for 1870 to 1930 are 10, the pOp"la,ion ten years Old and wer; ata for ,959 ana ,969 are 1.x the pop",afi,m 14 years Old B"d oyer. 'Data for 1969 are 101 blacks only. SOURCE: U.S. Department Of Health. Edwatio", and Welfare. National center for Education statis,ics, oigest 01 Education .!atistics ,975, Washington. DC, U.S. Gwernmen, Printing mice, ,975. p. 17.

Chart 2 NUMBER OF HIGH SCHOOL GRADUATES FOR EACH 100 PERSONS 17 YEARS OF AGE: UNITED STATES, 1669-70 lo 1976-77

Percent 60-

$ Z 60.. z ,m ._ 0

20..

1670 1900 1930 1960 1960

SO"wx U.S. Department Of Health. Ed"catim. and Weltare. National center for Education statistics, mgesr ot Education statistics ,979, Washington. DC. U.S. Government Printing Oftice, ,979, p. 64. role occurred in the 1950s and 60% it was in the Table 2 form of targeted or limited purpose aid for NUMBER OF SCHOOL OISTRICTS, specific national objectives. By 1960, a cate- 1929.30 to 1976-77 gorical pattern of federal assistance was well established. At that time, the major federal aid .schod Year School Districts' programs were: 1929-30 -2 1931-32 127,531 . assistance to federally affected areas, or 1933-34 -2 impact aid: $258 million; 1935-36 -2 l vocational education: $45 million: 1937-36 119,001 *instructional equipment, National De- 1939-40 117,106 fense Education Act: $62.7 million; and 1941-42 115,493 . auxiliary nutrition, the school lunch and 1943-44 111,383 milk programs: $305.5 million [see Table 1945-46 101.382 4J. 1947-40 94.926 1949-50 63.716 The major breakthrough in federal aid to 1951-52 71,094 education. however, came in 1965 wifh the 1953-54 63,057 passage of the Elementary and Secondary Edu- 1955-56 54,659 cation Act (ESEA). This landmark legislation 1957-56 47.594 added several additional programs of federal 1959-60 40,520 assistance in five titles: 1981-62 35,676 1963-64 31,705 Title I -Educationally deprived 1966-66 26.983 children 1967-66 22.010 Title II -School library resources 1970-71 17,995 Title III -Supplemental education centers 1972-73 IS960 Title IV -Educational research 1973-74 16,730 Title V -Strengthening state educauon 1975-76 16,376 agencies 1976-77 16,271 'Includes cqerating and nonoperating district*. ESEA was largely responsible for raising the zoata not auaiwde. federal contribution to education from $1.1 bil- NOTE: Beginning in ,959-m includes Alaska an.3 Hawaii. lion in 1963-64 to $3.0 billion in 1967-68. This, in SOURCE: vs. oeparml*nt Of Health. Education. and Wel- fare, National canter ‘Or Education StatiStiCI, o,gest 0, Ed". turn. increased the federal percentage of public catlo" sta,i*,ics 197% WaShlngtO". DC. U.S. Go"er"ment education expenditures from 5% to 9% [see Printing affim, 1979, p. 61. Table 3). Contrary to the expectations of many, the many school districts as had existed 30 years federal percentage of public educational ex- before. During the next ten years. this number penditures did not continue to grow beyond was reduced by almost two-thirds again (see this point. Since 1967, it has remained in the 8% Table 21. Meanwhile, the state role in educa- to 9.5% range, varying somewhat from year to tional finance more than doubled between 1930 year. While federal expenditures have risen in- and 1950 [see Table 1). After several years of crementally in dollar terms, they have only stability, the state role has begun rising again kept pace with inflation and state and local in recent years. As both state and federal in- spending. Within this federal sphere. however. volvement have grown lately, the local share in several new programs have been added. Fed- funding education has fallen to less than 50% eral aid to support the education of the handi- (see Table 3). capped began on a small scale in the early Despite years of concerted efforts, a federal 1960s and has since become a major federal program of general aid to education was never program category. with outlays of $589 million enacted. When significant growth in the federal in fiscal 1979.6 Federal funding of bilingual

4 Table 3 ESTIMATED EXPENDITURES OF PUBLIC ELEMENTARY AND SECONDARY SCHOOLS, BY SOURCE OF FUNDS, 195940 to 1977-78’ Source01 Fundsby Level and Control 1659-60 1961-62 1963-64 1965-66 1967-66 1969-70 1971.72 1973-74 1975-76 1977-79 (Amounts h Billions of Current Dollars) Total Public 3 15.9 3 38.7 $ 21.6 3 26.5 $ 33.2 $ 41.0 $ 46.3 $ 51.2 8 71.1 $ 82.7 FBdWal .7 .9 1.1 2.1 3.0 3.4 4.6 5.1 6.5 7.8 state 5.6 6.7 8.0 9.6 12.1 15.6 18.0 23.5 31 .I 36j I Local 9.5 11.0 12.4 14.7 18.0 21.7 25.6 26.5 33.4 37.7 All Other .2 .l .l .I .l .l .I .I .l .I (Percentage Distribution) Total Public 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 Federal 4.6 5.1 5.0 8.0 9.0 a.2 9.5 8.9 9.2 9.4 state 35.4 35.9 37.2 36.3 36.5 36.6 37.2 41.1 43.7 44.9 LOCal 59.6 56.6 57.4 55.3 54.2 52.9 53.1 49.8 47.0 45.6 All other .4 .4 .4 .4 .3 .3 .2 .2 .l .I Table 4 FEDERAL FUNDS FOR SELECTED ELEMENTARY AND SECONDARY EDUCATION PROGRAMS AND RELATED ACTIVITIES, 1960-79 (in thousands of dollars)

Program ,960 1962 1964 1966 1968 ,970 1972 1974 ,976’ 1978’

Elementary and 6econdary Education’ 63,529 54,821 71,489 915.174 1.436.732 1.487.792 1,869,081 1.766.412 2.166.322 2,586.118 Educationally Deprived Children’ 746,904 1,049,116 1.170,355 1.570.388 1,460.058 1,760.814 2,129.400 Consolidated Programs5 63,529 54.821 71.489 168.270 367,616 291,246 272,883 266,000 326,006 334.173 BSlngual Education 6,192 26,010 36,354 79,502 122.545 School Assistance in Federally A”ected Areas 258,198 282,909 334.289 409,593 506,372 656,372 648.608 568,626 596,884 810.300 aallic Vocational Edducatlo” programs6 45,179 51,762 64,503 118,396 250.197 271,282 370,619 399.209 514.057 519.043 Education for Ihe Handicapped’ 72 246 2.616 4.918 16,793 47,846 87,933 89.947 152.050 328,463 Emergency School Aids 5.291 7,437 10,608 92,214 196,045 204,027 265,860 Follow Through 2.024 46,595 39,825 57.300 Indian Education 15,694 42,046 57,862 0”ice 0‘ Educalion Salarles and Expenditures9 11,608 12,664 14,251 25,901 40,906 47.714 84,694 77.411 117.618 132,450 School Lunch and Milk Program* 305.512 366.900 411,700 421.900 643,645 676,196 1.213.075 1.266.873 1,890.276 2,810.082 Table 5 FEDERAL ELEMENTARY SECONDARY EDUCATION PROGRAMS AND FISCAL YEAR 1977 APPROPRIATIONS TO DATE BY MAJOR PURPOSE (in millions of dollars) education began in 1970 and has grown with REGU~TIONS AND THE COURTS similar rapidity in recent years (see Table 4). Several additional smaller programs (such as While the relative share of federal expendi- environmental education) plus support for edu- tures in education has remained constant in cational research and innovation and the recent years, regulations and grant conditions Emergency School Aid program designed to as- attached to federal aid have become increas- sist schools undergoing the process of desegre- ingly important. This process began largely gation, round out the current federal aid to with ESEA. Because Title I is distributed to education effort. In Table 5, these programs are about 95% of the nation’s school districts, it categorized according to five general strate- provided a vehicle for enforcement of the anti- gies, and the level of fiscal support for each discrimination objectives of the 1964 Civil purpose is indicated. Rights Act. Title VI of the Civil Rights Act pro-

Figure 1 FEDERAL PROGRAMS FOR ELEMENTARY AND SECONDARY EDUCATION AND RELATED ACTIVITIES, 1787-1979 Year Program 1787 Northwest Ordinance-authorized land grants for the establishment of educational institutions. 1867 Department of Education Act-authorized the establishment of the Office of Education. 1917 Smith-Hughes Act-provided for grants to States for support of vocational education. 1933 School lunch programs-provided assistance in school lunch programs. The use of surplus farm com- modities in school lunch programs began in 1936 and the Nafional School Lunch Acf of 1946 continued and expanded this assistance. 1941 Amendment to Lanham Act of 1940-authorized federal aid for construction, maintenance, and operation of schools in federally impacted areas. Such assistance was continued under Public Laws 815 and 874, 81st Congress, in 1950. 1946 George-Garden Act (P.L. 79-586)--expanded federal support of vocational education. 1950 Public Laws 815 and 874-provided asSistawe for construction (P.L. 815) and operation (F.L. 874) of schools in federally affected areas. 1954 School Milk Program (P.L. 83-690)-provided funds for purchase of milk for school lunch programs. Cooperative Research Act (P.L. 83-531)-authorized cooperative arrangements with universities, colleges. and state education agencies for educational research. 1958 National Defense Education AC1 (P.L. 85-864)-provided assistance to state and local school systems for strengthening instruction in science, mathematics, modern foreign languages, and other critical subjects; improvement of state statistical services; guidance, counseling, and testing services and training institutes. P.L. 85-9X-federal assistance for training teachers of the handicapped authorized. P.L. 85-905--authorized a loan service of captioned films for the deaf. 1963 Vocadonal Education Act of 1963 (P.L. 88-210)-increased federal support of vocational education. including support of residential vocational schools, vocational work-study programs, and research, training, and demonstrations in vocational education. 1 1964 Civil Rights Act of 1964 (P.L. 88-452). 1965 Elementary and Secondary Education Act (P.L. 89.IO)--authorized grants for elementary and secondary school programs for children of low income families; school library resources, textbooks, and other instructional materials for school children; supplementary educational centers and services; strengthening state education agencies; and educational research and research training. 1966 Elementary and Secondary Education Amendments of 1966 (P.L. 89-750)-i” addition to modifying existing programs, authorized grants to assist states in initiation, expansion, and improvement Of

8 hibits practices of racial discrimination by re- vices as elimination of architectural barriers cipients of federal grants-in-aid. This linkage and the “mainstreaming” of handicapped chil- with ESEA proved important in stimulating the dren. Despite impressive growth in federal aid desegregation of many school systems in the to assist local schools in meeting these aims, south. federal funds have fallen far short of compli- Other federal grant conditions have also he- ance costs, and the effects upon local educa- come important. The Rehabilitation Act of tional procedures and priorities have been suh- 1973 and the Education for AJJ Handicapped stantial. Federal law has also affected local Children Act of 1975 have had major conse- practices dealing with access to educational quences for American schools. These laws have records, through the Family Educotionol Rights mandated increased educational access to the and Privacy Act of 1974 (also known as The handicapped through such procedures and ser- Buckley Amendment]

Figure 1 FEDERAL PROGRAMS FOR ELEMENTARY AND SECONDARY EDUCATION AND RELATED ACTIVITIES, 1787-1979. “car Praaram (cont.)

programs and projects for the education of handicapped children et the preschool, elementary, and secondary school levels. Elementary and Secondary Education Amendments of 1967 (P.L. SO-247)-in addition to modifying existing programs. authorized support of regional centers for education of handicapped children, model centers end services for deaf-blind children. recruitment of personnel and dissemination of information on education of the handicapped; technical assistance in education to rural areas; support Of dropout prevention projects; and support of bilingual education programs. Also, authorized advance funding. Vocational Education Amendments of 1968 (P.L. SO-576)-expansion of vocational education services to meet the needs of the disadvantaged. 1970 Elementary and Secondary Education Assistance Programs, Extension (P.L. Sl-230)--authorized comprehensive planning and evaluation grants to state and local education agencies. Environmental Education Act (P.L. 91.516)-established an Office of Environmental Education for the purpose of curriculum development, initiation end maintenance of environmental education programs et the elementary-secondary education levels; distribution of material dealing with environment and ecology. Appropriations for the Office of Education and for other purposes (P.L. Sl-380)-provided Emergency School Assistance for assistance to desegregating local education agencies. 1972 Education Amendments of 1972 (P.L. 92-318)-established a National Institute of Education; and a bureau-level Office of Indian Education. Amended current Office of Education programs. Prohibited sex bias. Educational Amendments of 1974 (P.L. 93-380)-provided for the consolidation of certain education programs; established a National Center for Education Statistics. Indian Self-Determination and Education Assistance Act (P.L. 93.638)-provided for increased participation of Indians in the establishment and conduct of their education programs. Education Amendments of 1976 (P.L. 94-482)--extended and revised federal programs for education assistance for vocational education and a variety of other programs. Education Amendments of 1978 (P.L. 95.561)-established a comprehensive basic skills program and a community schools program; authorized a study of school finance reform and equalization. Department of Education Organization Act (P.L. 96-88)--established the cabinet-level Department of Education. Similarly. the impact of the federal courts on tween government and parochial schools; education has grown significantly in recent l issues of student rights-from verbal ex- years. The obvious example, of course. has pression to dress codes: been the effort made by federal courts to elimi- l curricular matters-concerning treatment nate practices of racial segregation and dis- of sexual, cultural. and political issues: crimination in the public schools. This began l instructional matters-from bilingual with the Brown decision in 1954, which out- education to the use of corporal punish- lawed segregated schools, and it continues to ment. be the primary subject of court interest and influence in education. Additionally. however, the courts have been important in: In these areas and others. informed observers agree that the role of the federal courts has be- l religious issues-prohibiting public come an increasingly noteworthy aspect of fed- school prayers and defining relations be- eral involvement in education.

FOOTNOTES IACIR staff estimate based on program descriptions contained in “Guide to OE-Administered Programs. Fiscal Year 1978.” American Education. 14 (March 19781, pp. 27. ‘Kenneth Prewilt and Sidney Verba. An Introduction to 35; and in Executive Office of the President. Office of American Government, New York, Harper and Row. 1976. Management and Budget. Special Analyses: Budget of the p. 42s. United States Government: Fiscal Year 1979. “Special *Millike” Y. Bradley. 418 U.S. 717 at 741.742 (1974). Analysis J: Education.” Washington. DC, U.S. Government %xecutive Office of the President. Office of Management Printing Office, 1978. This includes. primarily. programs and Budget, The Budget of the United Stales Government: intended for state and local education agencies. Related Fiscal Year 1981. Washington, DC, U.S. Government Print- programs intended primarily for institutions of higher edu- inn Office. 1980.0. 582. cation are not included. ‘OMB. The Budget: Fiscal Year 1981. op. cit., p. 431.

10 Chapter z Creation Of A Federal Role In Education- The Early Phases, 17851940

lmost one hundred years of bitter contro- A versy over general aid to education preceded the enactment of the Elementary and Secondary Education Act (ESEA) in 1965. Throughout this long period, the fundamental issues in dispute remained remarkably the same, although the relative importance of each waxed and waned in an irregular fashion. These issues of race, religion, and federal control arose during consideration of the federal aid question following the Civil War, ahd each evaded satisfactory resolution until the 1960s. However. federal land grants to the territories and the states, first passed in 1785. can be considered an early form of federal aid to education. These early roots of federal aid deserve a brief examination.

THE ORDINANCES OF 1785 AND 1787 AND THE EARLY FEDERAL LAND GRANTS Education was highly valued in colonial America. Its early religious origins were apparent; the inhabitants of the Massachusetts Bay Colony established the first schools in the 1640s under the Old Deluder Act.’ These early religious roots were strengthened by the need for educated leaders-lawyers and clergy. By the time of the American Revolution, an educated citizenry was also deemed a prerequisite for democratic government. Finally, through-

11 out the 19th and 29th Centuries, education was Tiedt ~asserts that the Northwest Ordinances, highly valued as a means to social opportunity “affirmed [a] policy of governmental sup- and advancement. port of education.“’ However, public lands The system of education which arose was a policy, rather than education itself, was clearly highly decentralized one. Decentralization of the central consideration of Congress. Some education was consciously affirmed in the as- observers. therefore, believe that the promo- signment of governmental roles under the Con- tion of education through the early land grants stitution. By virtue of the Tenth Amendment, was merely incidental to the basic goal of mak- public education was recognized to be a state ing the west attractive to settlement: and local function, along with most other areas of positive governmental activity such as public The advocates of federal support of safety, health and morals. The founders’ ex- public education have sought to rely plicit rejection of a national university denotes on various federal actions, back to the the totality of this decentralization. Hence, gov- Ordinance of 1785, to confirm a federal ernmental involvement in education in the pre- obligation in this field. However a re- Civil War era was almost wholly state and view of the record shows that neither local activity. any separate action nor the entire col- The single area in which the federal govern- lection of them together was motivated ment assumed significant responsibility for ed- by a primary concern with public edu- ucation was in the promotion of education in cation as such. There were always the western territories. National involvement other objectives for the realization of in this area began under the Articles of Con- which education was used as a federation, with the Land Ordinance of 1785. It medium.5 specified that the Northwest Territories (bounded by the Ohio River and the Great Interestingly, Gordon Lee concludes that the Lakes), which had been ceded to the national early federal land grants affecting education: government by the states, were to be surveyed “were not enacted in response to public pres- and divided into townships of 36 sections each. sure. Rather they were the products of far- The proceeds from the sale of one section in sighted statesmanship or the results of what each town was to be devoted to the mainte- was considered sound political maneuv&ring.“” nance of local public schools. The Northwest Ordinance of 1787 also served FEDERAL AID TO EDUCATION IN to promote education in the territories. This or- THE RECONSTRUCTION ERA dinance established procedures for territorial governance. Among its varied and numerous The real beginning of the drive for general provisions, it declared that: “Religion, moral- aid to education came in a burst of federal ac- ity and knowledge being necessary to good tivity following the Civil War. At this time, the government and the happiness df mankind, federal Bureau of Education was established, schools and the means of education shall for- and major proposals for federal aid were ad- ever be encouraged.“2 vanced in Congress in 1870. 1872, 1879. 1884. Land grants for education were continued 1666, and 1888. While all of them were directed under the Statehood Acts, beginning with the mainly at conditions in the south, these bills Ohio Enabling Act of 1802. As under the 1765 ranged in scope from temporary federal as- ordinance. the proceeds of one section from sistance to a proposed national system of edu- each township was granted for the support of cation. All were Congressional. and primarily local education. Later, states received two sec- Senate, initiatives. Each chamber of Congress tions or even four sections per township. In all, passed a federal aid bill at least once, hut the federal government granted 98.5 million neither did so concurrently. Finally, after 1890 acres to the states for public schools.3 and years of unsuccessful struggle. the issue of The extent to which these early federal grants federal aid largely subsided for over two constituted a federal commitment to education decades. has been a matter of some dispute. Sidney Two conditions established the context of

12 post-Civil War education legislation. One was Legislation to create the department was control of the government by the Republican introduced by Rep. James Garfield (R-OH) in Party, which was committed to an activist fed- 1666. It received endorsement by the National eral role in a number of,fields.’ This was par- Association of State and City School Superin- ticularly true of the “Radical” Republicans, tendents and the National Education Associa- who favored strong federal intervention in the tion (NEA). Lee notes, however, that: “The in- Reconstruction era south. terest of the press. both lay and professional. The second important influence on the fed- was minimal.“” eral aid debate was the post-war condition of The Congress was divided over the legisla- the south. As Gordon Lee writes: tion. Some supporters wanted a much stronger bill, granting the department power to establish At no time in the nation’s history be- and enforce minimum national standards in fore the 1930s has the need for federal education as a part of the Reconstruction ef- support of education been so acute, as fort. A state education group wrote soon after widespread. and as widely recognized passage that: ‘I.. we fear that there are men as in the years immediately following in Congress who would like to erect this de- the Civil WX.~ partment into a central authority with compulsory powers. “‘2 On the other hand, there was Poverty and illiteracy in the south were wide- considerable opposition in Congress to the cre- spread, particularly among the newly emanci- ation of any federal agency dealing directly pated slaves. For example, in the late 1660s. an with educational concerns. On constitutional estimated 42% of the south’s population was and states rights grounds, these opponents rec- illiterate, including 1.6 million whites and 2.7 ognized no legitimate federal role in education million blacks.* The region lacked resources whatsoever. for dealing with these problems, and its institu- Despite strong opposition, a subcabinet level tions lay in ruins from the war. As a result. fed- Department of Education was established in eral responsibilities were extensive in the 1867, due to Garfield’s “ceaseless efforts” and south, even before the federal aid to education Republican control of the south. President debate. They included military occupation. the Johnson signed the bill “only after he had re- establishment of federally sponsored govern- ceived definite assurances that centralization mental institutions, and the operation of the of education was not intended.“” A powerful Freedmen’s Bureau, which by 1866 had as- attempt to kill the department the following sumed certain educational responsibilities in year wrought major changes in it. The depart- addition to providing food, shelter. and em- ment was reduced to obscure bureau status in ployment to impoverished blacks. the Department of Interior, where it remained for many years. Its staff and budget were cut. although its functions remained the same. THE FEDERAL DEPARTMENT OF Despite these difficulties, Lee suggests that EDUCATION the education agency experience was important in two respects. First. it helped to “crystallize An early step toward federal aid was the cre- the sentiments of legislators and to some extent ation of the Federal Department of Education of educators” on the question of federal in- in 1867. This department was established: volvement in education. Secondly, it led to the creation of Congressional committees on edu- for the purpose of collecting such cation. “The importance of this development statistics and facts as shall show the can hardly be overestimated.“” condition and progress of education in the several states and territories, and THE HOAR BILL of diffusing such information” relative to school administration, methodology, The most extreme federal aid to education etc., as shall “promote the cause of proposal was also the first to receive serious education throughout the country.“‘0 consideration by Congress. On February 25,

13 1870, Rep. George Hoar (R-MA) introduced a education was worthy of its notice. bill “to establish a national system of educa- Most newspapers. carried no mention.” Specifically, the bill sought to require a tion of either the education problem or national system of general public education, to the effort in Congress to alleviate it.” be operated by the states in accordance with federal standards. States that failed to create Consistent with this mainly negative reaction, such systems were subject to direct federal in- the Hoar Bill failed utterly in the House. Hoar tervention to correct their deficiencies. In such defended its Constitutionality on the basis of delinquent states, national authority was pro- the spending power and on the guarantee of a vided for the appointment of a federal super- republican form of government.*” He argued intendent of state schools; for the building of that republican government was impossible schools: for the production of textbooks; and when, “only one-fourth of the persons who for institution of a direct tax upon inhabitants, are growing up to assume the function of citi- to be distributed according to census data on zens will be able to read and write.“>’ Con- illiteracy. Proceeds from the sale of certain gressional opponents, however. successfully at- public lands were also to be distributed on this tacked the bill’s Constitutionality on the basis basis. of the Tenth Amendment. They maintained that In reporting the bill from committee, Hoar it was antidemocratic, over centralized, open described its aims as follows: to fraud. and reflected no public demand. The ultimate result of the bill was probably The purpose of this bill, by which it counterproductive to the cause of federal aid. is for the first time sought to compel by although it did serve to heighten the issue’s national authority the establishment of salience in Congress. It acted to polarize the a thorough and efficient system of pub- federal aid issue and to raise suspicions. As a lic instruction throughout the whole result of the Hoar Bill, Catholic opposition to country. is not to supersede, but to federal aid in general became adamant. The stimulate, compel, and supplement ac- white south grew wary. In future proposals. aid tion by the state.‘5 proponents would be burdened by remem- brance of a national system of education and Its focus was clearly to address the massive il- the fear that federal aid could pose the first literacy of the south. The bill sought particu- step. larly to ensure the education of blacks, but its federal aid provisions dealt with southern pov- THE LAND GRANT PROPOSALS erty as well. Reaction to the Hoar Bill was “of small pro- Two aid to education proposals were impor- portions” hut “almost universally unfavora- tant during the remainder of the 1870s: one ble.“‘e “Violent blasts of denunciation” were passed in the Senate and one in the House. issued by education interests like the NEA, Both differed sharply from the interventionist which supported unrestricted federal educa- character of the Hoar Bill, seeking instead to tional assistance instead.” Catholic opposition use the revenues from public land sales for the more or less established the church’s position benefit of education. toward federal assistance for the next century. One bill, introduced into the House by Rep. It saw in the Hoar Bill a design “to suppress Legrand Perce (R-MS] in 1872. provided for the Catholic education, gradually extinguish Catho- creation of a permanent national fund for edu- licism in the country. and to form one homo- cation consisting of the net proceeds from the geneous American people after the New Eng- sale of public lands. Moneys were to be dis- land evangelical type.“‘8 Aside from such or- tributed to all states that provided free public ganized responses. however, there was little education to children between the ages of six public attention given the bill. Lee states that: and 16. The use of these funds was limited, however, to the provision of teachers’ salaries, The press had not yet become aware leaving operating and construction costs of that the issue of federal relations to education to the states. In what became a

14 continuing issue in education legislation, the resentatives for half a century. Support from bill was amended on the House floor to pro- southern Republicans was crucial to this suc- hibit the withholding of federal aid from segre- cess. In contrast. the Burnside Bill passed the gated schools. Senate overwhelmingly. This was due in part Similar legislation was introduced into the to its connection with the popular land grant Senate in 1879 by Sen. Ambrose Burnside (R- colleges. Supporters also included many south- RI), This bill also proposed the creation of an erners, who had concluded that its benefits, educational fund composed of the proceeds which favored the south. outweighed their tra- from public land sales, and it distributed ditional regional and partisan objections to moneys in similar fashion. In an attempt to at- federal aid. tract additional support, however, the Burnside proposal made land grant colleges eligible for FEDERAL CASH GRANTS one-third of the education grants. FOR EDUCATION These pieces of legislation failed to arouse much interest from either the general public or During the 188Os, the struggle for federal aid organized groups such as farmers and laborers. to education centered on the Blair Bill, which Lee observes that even educators were divided was introduced five times during that decade. over the issue of federal aid.22 The NEA and It passed the Senate three times-in 1884. 1886. the Bureau of Education, however, supported and 1888. Lee wrote that this legislation repre- the legislation fully: “The two most vehement sented both “the climax of the 19th Century champions of federal aid to common school struggle to obtain federal aid,” and “the begin- education. and particularly aid through the use ning of current activity in this area.“24 of land sale proceeds during the 1870s were the The bill submitted by Sen. Henry Blair (R- National Education Association and the Bureau NH) throughout the 1880s remained in most re- of Education.“23 spects the same. The federal aid provided was The parties differed on the question of fed- to be explicitly temporary, a ten-year program eral aid to education. but the issue was not an to meet “emergency” conditions in the south. important one for them. Republican Presidents In a major departure from the past, federal as- Grant and Hayes indicated some support for sistance was to be in the form of direct cash the concept, and Grant, moreover, supported a grants, rather than land grants or prdceeds, to Constitutional amendment requiring that all be distributed according to state illiteracy states provide free. compulsory public educa- rates. Also significant were the scope and num- tion. For their part. the Democrats opposed ber of grant requirements which conditioned federal aid in their 1876 party platform, reaf- state eligibility for federal aid. States were re- firming their traditional support for states quired to match the amount of federal assist- rights and state responsibility for education. ance in their own spending on education (a Other federal aid opponents included many condition which was thought to cause hardship educators in the northeast. which already for poorer southern states]. States were fur- possessed the nation’s best educational system ther required to provide: ‘I. by law, a system and would not have benefited from a literacy- of free common schools for all of its children related federal aid program. This region also of school age, without distinction of race or had a strong private school sector that tradi- color, either in the raising or distributing of tionally opposed federal aid. Catholic opposi- school revenues or in the school facilities tion to federal aid actually intensified during provided.“*5 the 1870s. The church completely rejected the As in previous legislation, the maintenance concept of federal involvement. In the case of of segregated schools was permitted under the the Perce Bill, there also existed Congressional hill for reascms of political necessity, but fed- opposition to its administrative procedures. eral assistance was to be equitably apportioned which some thought to be unworkable. between black and white schools. State reports Both bills passed only in their chamber of were required to deal with this and other mat- origin. The Perce Bill became the only federal ters of expenditure and attendence. Minimum aid to education bill to pass the House of Rep- subjects to be taught were indicated. Finally.

15 aid was to be spent on school operations. It obstruction, but primarily it reflected southern was not permissible in most instances to use opponents’ “fear of the difficulty of controlling federal assistance for school construction. more educated Negroes.“30 According to Lee, the Blair legislation at- tracted “widespread” public interest, although FEDERAL AID TO EDUCATION, he notes that: “educators were far more active “THE FIRST PHASE” and vocal.. while groups less directly concerned were, in sane instances, apparently After 1890, the federal aid to education issue completely disinterested.“*@ These educators largely died out in Congress for several dec- were crucial in advancing the cause of federal ades. By this time, new growth and develop- assistance to education: “For the first time. the ment in the south moderated regional income education profession, in an organized way and disparities and enabled the south to deal more on a national scale, led the fight outside of adequately with its own educational needs. As Congress for federal aid.“27 This was particu- illiteracy rates fell, the rationale for federal larly true of educators in the south, for whom intervention on behalf of republican govern- the benefits of legislation were particularly ment eroded. At the same time, the Republican great. At the urging of the Commissioner of Party curtailed its protective activities on be- Education, the NEA agreed to support direct half of blacks. appropriations in 1662, reversing its earlier en- The federal aid debate in the era before 1896 dorsement of land grants. Other supporters in- was clearly colored by unique circumstances of cluded President Chester Arthur, who an- the times. However, the events of these years nounced his support for the legislation in his resulted in several important consequences annual messages to Congress in 1662 and 1883. that continued to shape the campaign for fed- Opponents of federal aid to education re- eral aid in the years ahead. First, the federal mained many, however. A sizeable number of Bureau of Education was created.31 Although educators continued to oppose the concept, and its role was small, it served to permanently es- these continued to come largely from the nortb- tablish a degree of federal involvement in east. Catholic opposition remained very strong. elementary and secondary education. The fed- At one point, Blair labelled his opponents. eral aid struggle also created a committed edu- “organs of Jesuitism,” while the Catholic Jour- cation lobby. By the 1880s. educational groups no1 said of Blair: “a hatred of Catholicity like the NEA bad become the principal sup- [is] a concealed but powerful motor in all his porters of federal aid. acts.“28 While the federal aid issue was not Finally, the early federal aid controversy central to the political parties, Democratic aroused fundamental issues that would con- predilections were to oppose federal aid to tinue to divide Congress until the 1960s. Central education as involving questionable Constitu- to these was the issue of federal involvement tionality and infringing upon states’ rights. As itself. Opponents viewed federal aid as an un- President Cleveland remarked: The preser- constitutional interference in a state and local vation of the partitions between proper sub- function, “the first step in the direction of com- jects of federal and local care and regulation is plete national control of education.“3z As Lee of such importance under the Constitution.. concludes in his overview of the 1870-90 period: that no consideration of expediency or sentiment should tempt us to enter upon doubtful Perhaps most important of all was ground.29 Several southern Democratic Gover- the evidence, in Congress and public nors. however, supported federal aid provided debate, of the overpowering impor- that it bad no federal strings. tance of considerations of constitution- III Congress, party positions were weak ality, states’ rights. and centralization enough to allow many Democratic Senators to or federal control. Throughout the vote for the legislation in 1884 and 1886. The period and on a nationwide scale, de- House, however. exhibited “complete inactiv- cided and determined opposition to ity” over federal aid. This was due in part to national control of education was con- opposition by the Speaker and parliamentary stantly manifested. To many, main-

16 tenance of local prerogative loomed Congress in 1929, 1934, 1936, 1946, 1963, and far larger than educational improve- 1968. The George-Borden Act of 1946 expanded ment; to many more, independence vocational education programs and transferred from federal control was essential to administration of the programs to the U.S. Of- that improvement.33 fice of Education. Later enactments significantly increased federal spending on vocation- The federal aid to education issue aroused a al education (see Table 41, reduced the early lasting religious controversy as well. Federal focus on agriculture, and increased emphasis aid proponents at the national level commonly on the disadvantaged.35 supported free. compulsory education at the Passage of the Smith-Hughes Act and the dis- state and local levels. Segments of the religious covery of mass illiteracy during the World War community, especially the Catholic Church, be- I draft prompted revived interest in general aid lieved that federal aid would upset the balance to education. In 1919, the Smith-Towner Bill between public and parochial schools. Other was introduced in Congress. It proposed creat- advocates of private education, like the presi- ing a cabinet department of education and a dents of Harvard and Columbia. similarly program of federal aid intended to combat il- viewed federal aid as a threat to private edu- literacy and to promote physical education and cation. the “Americanization” of immigrants.36 This A third persistent issue to arise was race A bill and subsequent ones were endorsed by primary motive for federal aid throughout the President Wilson, the NEA, and women’s Reconstruction Era was to provide for the edu- groups, but such legislation never gained com- cation of southern blacks. Over time, support mittee approval in Congress. After 1925. educa- for highly interventionist federal policies on tion supporters focused solely on the establish- behalf of blacks waned. From the Perce Bill on, ment of an education department. but this ap- political necessity demanded that federal aid proach met with no more success. A 52-member reconcile itself to segregated school systems in National Advisory Commission on Education the south. But federal aid legislation continued was appointed in 1929 to study the federal role to insist that blacks and whites benefit equi- in education. It recommended general aid to tably from federal assistance. education in its 1931 report, but given the De- pression and President Hoover’s opposition to FEDERAL AID IN THE EARLY the plan, no such action was taken. 20TH CENTURY The governmental fiscal crisis created by the Depression turned the focus of federal aid ad- Vocational education was the focus of aid to vocates to emergency assistance. Proposals education efforts in the early years of this cen- were made in Congress for loans or direct aid tury. This objective was attained in 1917 with to schools, but little action occurred until many the passage of the Smith-Hughes Act, which es- state school systems “were near collapse” in tablished a program of federal aid to support 1934.3’ “A rush of bills” followed, and the agricultural, industrial, and home economics House Education Committee reported a bill education at the secondary school level. Grants providing $75 million in relief to the schools.38 totalling $1.7 million in 1917 were made to the However. concerns were expressed about states on a matching basis, for expenditures on emergency aid becoming permanent, and no teachers’ salaries, curricular developments, consideration of the legislation was made by and administrative costs in accordance with the full House. Many more emergency and state plans. Spending on construction and facil- permanent aid bills for the direct relief of edu- ities was prohibited. The Smith-Hughes Act hy- cation followed in succeeding years, but all passed the Office of Education and established failed to advance. the Federal Board of Vocational Education to A number of New Deal programs did have an administer the program.34 important impact on education, however. In Vocational education programs continued to 1934, Harry Hopkins of the Federal Emergency grow incrementally from that point on. New Relief Administration estimated that 40,000 authorizations and enactments were passed by teachers were receiving federal relief funds.39

17 Loans to schools for the employment of teach- functions were performed under the Civilian ers were approved under the Reconstruction Conservation Corps and the National Youth Finance Act. School related construction proj- Administration programs. All of these programs ects were included in the activities of the Pub- were temporary. however, and they affected lit Works Administration and the Works Prog- education only indirectly, in the performance ress Administration. and some educational of relief or employment objectives.

FOOTNOTES extreme meaS”reS.. was typical of most education groups.” Ibid.. p. 46. ,aQuoted in ibid., p. 47. ‘PIbid. ‘See Sidney Tiedt, The Role of the Federal Government in ZoArticle IV. section 4. which reads: “The United States Education, New York, Oxford University Press, 1966. shall ,guarantee to every state a republican form of gov- p. 14. ernnlen,: 2John Mathews and Clarence Berdahl. eds.. Documents “Lee. op. cit.. p. 50. and Readings in American Government, New York. NY, 2zIhid.. p. 138. MacMillan, 1928. p. 484. 2’Ibid.. p, 64. Tiedt. op. cit.. 1). 17. The lamest wants were made to west- *‘ibid.. p, 88. ern s&s. Aleska. alone. erece%ed approximately one- *IQuoted in ibid., p. 91. fifth of this total sum. *‘Ibid.. pp. 94, 99. ‘Ibid. Similarly, Gordon Lee asserts that: “[Flundamental l’lbid.. p. 169. commitments to the principle. of federal responsibility ZaQnoted in ibid.. p. 121. for educational activity. actually antedated the adop- asQuoted in ibid,, p. 145. tion of the Constitution. i.e.. The Ordinances of 1785 and 34bid.. p. 159. 1787.” Gordon Lee, The Struggle for Federal Aid: First alThis later became the Office of Education. Phase. 1879-1899, New York, Columbia University Teach- 12Lee. op. cit.. P. 113. ers College. 1949, p. 27. =Ibid.. b. 165. SHarley Lutz, representing the National Association of raThis is an indication of the low esteem in which the Of- Manufacturers. quoted in Tiedt. op. cit.. p. 77. fice of Education was held at the time. Followine its de- *Lee, op. cit., p. 11. motion from departmental status in 1969. the of&e led ‘This was apparent in the passage of the Homestead Act, an obscure and uncertain existence for much of its life. the Merrill Act, the railroad land grants. and the creation For years it was a bureau in fhe Interior Department It of the Departments of Agriculture and (temporarily] was later shifted to the Federal Security Agency, and Education. finally. to the Department of Health. Education. and Wel- ‘Lee. op. cit.. p. 2. This section is based largely on Lee’s fare [HEW] when that department was created irr1953. account. 350” vocational education, see Tiedt, op. cit.. pp. 23-24; *Ibid.. p. 32. W. Brooke Graves, American Intergovernmental Rela- lOQuoted in ibid., p. 21. tions. New York, NY, Charles Scribner’s Sons, 1964. pp. “Ibid.. p. 23. 595.597, 522.526: and Frank 1. Munger and Richard F. I’lbid.. pp. 26.27. Fenno, Notional Politics and Federal Aid to Education, “Ibid. -- Syracuse. NY. Syracuse University Press, 1962. ‘*Ibid. *‘Munga and Fenno. op. cit.. p. 5. Much of the following ‘*Quoted in ibid., p. 42. section is based on their work. ‘(Ibid., pp. 43-44. “Ibid.. p. 6. ‘IIbid.. p, 45. “The policy of complete nonsupporf for the 3’lbid. Hoar Bill. coupled with equally strong approval of less 3’lbid.

18 Chapter 3 The Contemporary Period: Categorical Assistance And The Drive For General Aid

Ith the failure to obtain temporary federal W’ assistance to schools in the 193Os, federal aid supporters sought once more to secure a program of general aid to education. These efforts launched the modern drive to achieve broad. large-scale federal aid to education that finally resulted in the passage of the Elemen- tary and Secondary Education Act (ESEA) in 1965. The first move back to general aid to ‘education was a bill introduced in Congress in 1936 by Sen. Pat Harrison (D-MS) and Rep. Brooks Fletcher [D-OH). Senate hearings were held on the bill in 1937, after which it was unanimously approved by the Senate Education and Labor Committee. It was withdrawn when President Franklin Roosevelt referred the proposal to his newly appointed Advisory Committee on Education. The committee recommended legislation combining general aid to education with a number of special categorical aid programs, and this was accepted in the Senate Committee as the Harrison-Thomas bill. However. Presi- dent Roosevelt’s opposition to the committee’s recommendation and to the Senate bill was expressed in testimony by the Director of the Budget Bureau.’ The basis for Roosevelt’s opposition apparently was his preference that federal aid be limited only to states unable to provide sufficient education for their own citizens.* Although it would soon become one, general

19 aid to education was not a major partisan issue must necessarily impose federal regulation at this time. The Democratic Party platform did which will bring about equalization.“’ not endorse federal aid until 1944, when it By 1945, Taft had altered his position. He had stated: “We favor federal aid to education ad- become convinced that federal aid to education ministered by the states without interference was a necessary and useful program.5 More- by the federal government.“3 In contrast, the over, Munger and Fenno attribute his change, 1940 Democratic Platform stated only that: “We in part, to a belief that the Office of Education shall continue to bring to millions of children, could be trusted not to interfere with the edu- youths, and adults, the educational and eco- cational activities of state and local govern- nomic opportunities otherwise beyond their ments: reach.” For their part, the Republicans did not mention aid to education in contemporary plat- The record of the federal Office of forms until 1948. Education has been very good. It has The only federal aid program to pass at this relied almost entirely on state boards time was the Lonhom Act of 1941. This provided of education. It has a history of not federal payments in lieu of taxes to local interfering in any way with their ad- school districts affected by World War II mili- ministration and of conducting a very tary mobilization. Funds under the act were simple 0perationP available for school construction, auxiliary services, and nursery schools. Finally, the Thomas-Hill-Taft Bill provided es- When the general aid issue was raised in sentially “flat” grants to the states, rather than Congress in 1943, it achieved somewhat more equalizing grants. thus removing this basis for success. The Hill-Thomas Bill was approved by federal intervention.’ the Education and Labor Committee and con- The flat grant formula reflected the NEA sidered on the Senate floor. It was the first position on the distribution of federal aid be- general aid bill to advance that far since 1890, cause it appealed to the organization’s broad but it quickly became enmeshed in racial con- constituency. However, it inspired the second troversy. The legislation contained an NAACP important development affecting the 1945 edu- supported provision requiring that federal as- cation legislation-a major split between the sistance be equitably divided by the states be- two largest teacher organizations. The Ameri- tween black and white schools where segrega- can Federation of Teachers (AFT) promoted a tion was maintained. However. the bill lost its separate bill in 1945. and again in 1947 and 1949. southern support and died when an amend- It contained a more equalizing formula, a re- ment was added requiring that such states quirement that 75% of federal aid be spent on equitably apportion their own funds between teachers’ salaries, and assistance to parochial segregated schools in order to qualify for fed- schools. This legislation divided the education eral aid. The amendment was successfully op- community and raised the religious issue once posed by the NAACP itself because it jeopar- agaim8 Both developments weakened support dized federal assistance. for federal aid. Similar legislation was introduced into the Despite these difficulties, the Thomas-Hill- Senate in 1945, hut two important developments Taft Bill was approved by the Senate Commit- significantly altered its reception. First, the tee in 1946. It was reintroduced in 1947 and legislation was cosponsored by Sen. Robert passed by the Senate in 1948. Federal aid legis- Taft of Ohio, an influential Republican. Taft lation introduced in the House had not yet had opposed federal aid in 1943 because he be- cleared the Education and Labor Committee. lieved it would entail federal controls. He had When the Senate passed the bill again in 1949, argued then that, because an important goal of however, it appeared that the House might fi- the legislation was equalization of educational nally grant approval to a federal aid bill. Sup- spending, it would logically follow that recipi- port had grown in the Democratic Party in re- ent states should equalize their own education cent years. The party platform expressed sup- expenditures: ” certainly if the purpose of port for federal aid in 1944 and 1948. and Presi- the federal subsidy is equalization, then we dent Truman supported it in his 1948 budget.

20 The World War II draft had again dramatized for federal involvement. Yet, some aid sup- the problem of illiteracy. and the post-war porters from poor districts in the north could “baby boom” was beginning to exert pressure not support equalizing formulas that dis- on the nation’s school systems. counted such localized need and sent aid pre- However, the House Committee was much dominantly to the southern states. Essentially, more divided over the federal aid issue than however, the deep religious controversy that was the Senate Committee. The chairman of its had been aroused over aid to parochial schools Special Subcommittee on Federal Aid to Edu- caused the greatest problems. It proved so con- cation, Graham Barden (D-NC], was conserva- tentious and disruptive that Congressmen tive and essentially opposed to any federal aid sought to avoid the issue altogether. Thus. for proposals. “A Democrat in name only,” one the next ten years. Congressional attention Democratic member of this committee de- turned from the question of general aid to nar- scribed hima Barden rejected the Senate pro- rower proposals. posal and introduced his own bill, eliminating state reports on federal aid expenditures and IMPACT Al D expressly prohibiting any assistance to parochial schools. This latter possibility had been left This process began in 1950 with the passage open to the states by the Senate bill in such of two laws providing federal assistance to supplementary areas as school transportation “areas affected by federal activities.” The con- and textbooks. cept, which had been established under the Possibly by design, the parochial aid provi- Lonhom Act of 1941, was contained in Public sion created an uproar of controversy that Laws 815 and 874. providing construction and killed the legislation. Many liberal Democrats operating grants respectively. The programs ap- from Catholic constituencies refused to support pealed to Congress in several ways. The ra- the bill, including the chairman of the full tionale for federal involvement was very clear, Education and Labor Committee, John Lesin- at least in principle. Large federal installations, ski (D-MI), who called it “anti-catholic,” such as military bases, may add to local de- “bigotry.“‘0 Lesinski added: “It is my opinion mand for services without contributing to the that he [Barden] drew it up that way purposely local tax base. Thus, even staunch wnserva- because he didn’t want any aid to education tives and general aid opponents have sup- and wanted to kill it.“” Monger and Fenno ported the program as a payment in lieu of explain that: taxes.l3 Moreover. impact aid has had strong defense overtones, since military installations The controversy exploded into dra- were a prime stimulus of the program. Impor- matic national headlines when Mrs. tantly, the act was passed during the Korean Eleanor Roosevelt criticized Francis War. The program has also had important Cardinal Spellman of New York City “pork barrel” aspects which have heightened for precipitating the religious conflict its appeal to Congress. These have grown to the and the Cardinal replied: “lY]our rec- point that, by 1970, 385 of a total 435 Con- ord of anti-Catholicism stands for all gressional districts contained schools receiving to see. .” and described her news- impact aid funds. Finally, school districts like paper columns as “documents of dis- the program and have fought to enlarge it. Dis- crimination, unworthy of an American tricts which receive funds compare it to a pro- mother.” The bill never emerged from gram of general aid to education; there are vir- the full House Committee.‘2 tually no federal strings attached to local use of the money. Attempts to resolve the issue over the next Since their initial passage, the impact aid two years failed as crosscutting issues effec- laws have been popular but controversial pro- tively divided federal aid supporters. To some grams. They grew rapidly through the 1950s. extent, the purpose of federal aid became an when the number of eligible school districts issue in itself. Distribution of aid to the states more than doubled and the amount of federal on a population basis weakened the rationale grant money increased six times, from almost

21 $30 million in 1950 to $178 in 1959 (see Table 6). most visible component of what aid supporters Impact aid continued to grow rapidly through- argued was an educational crisis. The post-war out the next decade as expenditures reached “baby boom” had created a population bulge over $650 million in over 4,500 school districts that was enrolling in elementary school during by 1970. 14 The program’s “immense political the early 1950s. This resulted in substantial appeal”‘5 in Congress and among educators classroom shortages. The Office of Education has been responsible for this growth. However, estimated that there was a national shortage of the program has been criticized by every Presi- 370,000 classrooms in 19.54.” Responding to this dent from Eisenhower to Carter, and it was shortage was difficult and burdensome for literally embattled during the Nixon years. All many local communities who looked for fed- have criticized the program’s massive distribu- eral assistance. tion of funds without reference to need and its Educational interest groups at first retained loose definition of federal impact. For ex- their commitment to general aid. They accepted ample, a study of federal aid equalization this Congressional initiative to break the fed- found that the impact aid construction program eral aid deadlock only with reluctance. As “has no fiscal equalizing tendencies,” while construction aid ,became the central issue of the maintenance program often <‘serves as a the 19509, however, they reconciled their objec- large subsidy for the more wealthy.“” tives with reality. No sooner was this accom- plished to ,quiet the religious issue than racial controversy returned with a fury. Along with FEDERAL Al D the continuing opposition of some to any pro- FOR SCHOOL CONSTRUCTION gram of major federal aid, division over racial Throughout the 1950s. subsequent attempts to questions succeeded in blocking Congressional achieve a major federal aid program focused action. on federal assistance for school construction. A construction aid proposal was introduced This was a Congressional strategy which al- in the Senate in 1949, after the failure of gen- lowed federal aid supporters to avoid the con- eral aid had grown apparent. Hearings were troversy and deadlock of religious issues. Un- then held in both the Senate and the House. like general aid, which might be spent on a The provision was given a boost during the variety of auxiliary educational activities, no 19.52 election campaign when candidate’ Dwight one advocated including parochial schools in Eisenhower endorsed federal aid for classroom a federal construction program. This was as- construction during a television address.19 Up- sumed to be unconstitutional.” Moreover, on election, however. President Eisenhower building construction, which is necessarily a advocated only “Congressional study” of the short-term and concrete activity, seemed to be school problem.*0 The following year. 1954. he an area where federal intervention would be proposed creation of the White House Confer- unlikely to entail federal controls. ence on Education to further study the issue, Another factor adding to its political appeal and he decided to await the recommendations was that construction aid concentrated on the of this conference and those of the Commission on Intergovernmental Relations before acting. The Republican-controlled Congress took no Table 6 action in 1953. The Labor and Public Welfare Committee passed a construction aid bill in 1954 that failed to reach the Senate floor. In 1955. the Administration did propose a bill, focusing largely on federal loans and loan guarantees for local school construction. Democratic activists and education groups supported a much larger program of federal grants. hut racial issues arose to confound them. Fol- lowing the Supreme Court decision to outlaw school segregation in Brown v. Board of Educa-

22 tion in 1954, the National Association of withdrew its support of the compromise fol- Colored People (NAACP) altered its position lowing defeat of another amendment to equal- on federal aid. Previously, it had supported ize its formula. This removed any hope of ob- federal aid proposals that equitably appor- taining enough Republican support to offset the tioned aid between segregated schools. Now. it total opposition of the south, and the bill died. advocated that states conform to the Brown Similar legislation advanced in Congress the decision in order to qualify for aid. This was following year. President Eisenhower con- enough to kill the bill in the Senate where tinued to voice support for temporary construc- Committee Chairman Lister Hill [D-AL] shelved tion aid during the 1956 election, and he an- the legislation. nounced at the NEA convention in April 1957: A construction aid bill did advance in the “It is my firm belief that there should be fed- House, despite delaying tactics there by an- eral help to provide stimulus to correct an other southern committee chairman, Graham emergency situation.“23 The Administration’s Barden (D-NC]. Known as the Kelly Bill, this proposal again differed from that of Congres- proposal was a compromise which added con- sional Democrats, once more providing less struction grants to the Administration’s loan money and a more equalizing formula. How- program. It passed the committee in 1955 after ever, Department of Health, Education, and an antisegregation amendment by Rep. Adam Welfare (HEW) Assistant Secretary Elliot Clayton Powell [D-NY) was defeated. Educa- Richardson established a compromise with the tion and labor groups, major Democratic Party House Education Subcommittee, which was figures, and President Eisenhower all opposed approved by a strong bipartisan majority of the Powell Amendment as au obstacle to the the full committee. education bill. Powell argued, however. that The fragile coalition supporting this bill once the Supreme Court had fundamentally altered again collapsed on the House floor. The Cham- the situation for considering federal aid to ber of Commerce launched a successful cam- education: paign challenging the need for federal assistance. It argued that state and local governments Negro people have waited many, many were successfully dealing with their own edu- years for this hour of democracy to cational needs. More importantly, the come and they are willing to wait a “marked” absence of straightforward Presi- few more years rather than see a bill dential endorsement of the compromise bill passed which will appropriate federal produced doubts of genuine Presidential sup- funds to build a dual system of Jim port.24 Last minute maneuvers by Republican Crow schools in defiance of the law.21 and Democratic leaders to assuage these doubts failed, and the legislation once again died, by Before it reached the House floor in 1956, the a vote of 206-203. A flurry of bitter charges aid bill was given a surprising boost by the and recriminations followed. Administration’s Conference on Education, which supported federal aid. But the legislation was killed when the Powell Amendment was THE NATIONAL dEFE&E adopted on the floor. Conservative aid op- EDUCATION ACT, A NEW PROGRAM ponents, hoping to cripple the bill, were joined OF SPECIALIZED by liberal Republicans and “overwhelming” FEDERAL ASSISTANCE numbers of large city Democrats in supporting the Powell Amendment. Despite their support The deadlock in the struggle for educational for federal aid and the pleas of Democratic assistance was broken temporarily by the leaders and education groups, liberals sup- passage of the Notional Defense Education Act ported the amendment as a moral issue. The (NDEA) in 1956. The NDEA was a large and NAACP had proclaimed in that election year multifaceted law composed of numerous pro- that: “Any vote against the Powell Amendment grams of specialized aid, all focusing mainly on is a vote in favor of segregation.“z* Defeat of the improvement of math, science, and foreign the bill was assured when the Administration language instruction. The bill’s success grew

23 out of the atmosphere of national crisis act,’ Hill observed that his colleagues would aroused by the successful orbit of the Soviet not dare vote against both national defense and Sputnik satellite. Its programs were tailored by education when joined in the same bill.“27 Administration and Congressional legislative Favored elements from the Administration’s craftsmen to ride the resulting wave of public forthcoming bill were joined with other Con- concern over the nation’s education system. gressional proposals to form an attractive legis- “I ask you, sir, what are we going to do about lative package. The categorical approach to it?“2S This, quotes James Sundquist, was the federal aid was adopted in order to minimize opening question at President Eisenhower’s opposition to the hill. Hill instructed his staff news conference following the Russian orbit of to draft legislation which would avoid, “the Sputnik. He notes: “The President’s response Scylla of race and the Charybdis of religion.“28 that day did not mention education.“26 How- The Administration’s bill and the Hill-Elliot ever, upgrading the nation’s system of scientific Bill were similar, and Congressional leaders education soon became the focus of policy worked closely with HEW in negotiating their response. differences. Both included major scholarship Elements of what became the NDEA were in programs and other assistance for higher edu- various stages of development when Sputnik cation, which focused loosely on stimulating occurred. Years before, President Eisenhower the “defense-related” fields of math, engineer- had indicated support for federal scholarships ing, and foreign languages. In elementary and to increase the production of American scien- secondary education, each bill authorized state tists and engineers. A 1956 Library of Congress matching grants to improve high school guid- study urged the same, and Congressional hear- ance and counseling, and each provided aid to ings on the subject were underway at the time states for enhancing instruction in the defense- of Sputnik. At the same time, recommendations related fields. by the President’s Committee on Education Be- Congressional debate centered on scholar- yond the High School were being studied by an ships for higher education. These were eventu- HEW task force. The task force, headed by ally replaced by loans. Beyond this, the politi- Commissioner of Education Lawrence Der- cal climate and strategy helped to minimize thick, proposed a program of high school guid- other obstacles. General aid proponeqts, like ance and counseling to identify talented stu- the NEA, were disappointed by the size and dents and a program of federal scholarships to scope of the measure. Staunch aid opponents, aid them. State grants for the improvement of such as Barry Goldwater, opposed the NDEA. high school science and math instruction were They feared that it, like general aid, would added later. Under the guidance of HEW Secre- soon lead to federal controls: “If adopted, the tary Marion Folsom and Assistant Secretary legislation will mark the inception of aid, su- Elliot Richardson, these became the basis for pervision. and ultimately control of education the Administration’s response to the Sputnik in this country by federal authorities”29 Nei- crisis. That bill, called the “Education Develop- ther extreme proved successful, however, as ment Act of 1958,” was introduced in Congress the religious and racial issues were muted. in January 1958. Parochial school advocates won addition of a Meanwhile, similar proposals were being de- small program of loans to private schools. veloped on Capitol Hill, where concerted ef- Antisegregation forces were dissuaded from forts were underway to avoid the fatal con- pressing their cause on the popular and spe- troversies of prior federal aid legislation. Lister cialized education bill. Thus, skillful leader- Hill (D-AL), the Chairman of the Senate Labor ship and an atmosphere that favored action and Public Welfare Committee and an ardent enabled the bill to “breeze” through both supporter of federal aid, accepted staff advice Houses of Congress. In the always difficult that Sputnik be utilized to launch a new aid to House, 30 southern and border Congressmen education effort. National defense was made a supported the bill, and Republicans split almost rationale for the legislation, although Sund- evenly. quist suggests this was rather disingenious: “In Although limited, the NDEA was an im- accepting the title ‘national defense education portant piece of legislation. It demonstrated

24 *Title VI: foreign language training for Table 7 elementary and secondary school teachers; authorization-$725 million: three- FEDERAL FUNDS FOR ELEMENTARY AND year outlays-$9.5 milliom3’ SECONDARY EDUCATION, FISCAL YEARS 1957-60 Also included were vocational education grants Fiscal Year 1957 1958 1959 1960 to states to train skilled teachers and aid to Millions $128.3 $139.7 $170.7 $224.9 colleges and students to improve the training SOURCE: Congressional ouarferly. congress B”d me Naho”, of elementary and secondary teachers in de- “d”me I: 1945-,964, Washington. DC. Congressional Q”arterly fense related fields. service, ,965. p. ,199. Senate Majority Leader Lyndon Johnson called the act “an historic landmark.” Sund- that, under certain circumstances, Congress quist agreed, could enact a major aid to education bill. Moreover, it established a new federal purpose not so much because of the specific in education: provisions of the NDEA but because of the psychological breakthroughs it em- The Congress hereby finds and de- bodied. It asserted. more forcefully clares that the security of the nation than at any time in nearly a century, a requires the fullest development of the national interest in the quality of edu- mental resources and technical skills cation that the states, communities, and of its young man and women. The private institutions provide.32 national interest requires. that the federal government give assistance to FEDERAL Al D AND PRESIDENTIAL education for programs which are im- POLITICS, 1959-60 portant to our national defense.30 School aid politics became strongly more The act also accounted for a major increase partisan when considerations of general aid in federal spending on elementary and second- began once more in 1959. The fragile bipartisan ary education. Primarily due to the NDEA. fed- compromises over construction aid in 1956 and eral spending on education (excluding impact 1957 dissolved with the approach of the 1960 aid and the school lunch and milk programs] Presidential contest. Despite this, the House rose from about $140 million before enactment passed a federal aid bill in 1960 for the first to $225 million thereafter (see Table 7). time in almost 90 years. It appeared then that Included in this package of NDEA programs federal aid to education might finally be en- were: acted. But structural obstacles in Congress again combined with divisive issues to thwart . Title III: matching grants to public the legislation. schools and ten-year loans to private The process commenced immediately in schools for science, math, and foreign 1959. The complexion of Congress was con- language equipment: authorization-$75 siderably more liberal following the influx of million/year; total outlays from 1959-61 northern and western Democrats in the 1958 -$109 million in grants, $2 million in election. The Eisenhower Administration, on loans: $6 million to state supervision and the other hand, assumed a much more conser- services. vative stance in its fiscal 1960 budget. Sharply limiting spending on new social programs, it *Title V: grants to state education agen- proposed only a very modest program of long- cies (SEAS] for establishment and main- term loans for school construction. tenance of high school programs of guid- This met immediate and total rejection by ance and counseling; authorization-$15 Congressional Democrats. who sensed an elec- million/year; outlays 1959-61-$36 mil- tion issue at hand, and by the NEA which had lion. never been fully satisfied with even a large

25 construction aid program. Sundquist reports bill regardless. Prospects for a compromise that: House-Senate conference bill appeared good at this point, with the House dropping the The majority of Congressional Powell Amendment and the Senate dropping Democrats had. by this time, joined in teacher salaries. However, the bill died an open alliance with the NEA.. [T]he unusual death when the Rules Committee re- NEA’s bill for a multibillion dollar versed itself and refused to clear the legislation program of aid for school construction for conference. and teacher salaries. was rapidly Presidential politics were blamed for this. achieving the status of a party program Republicans were reluctant to have the bill measure among northern and western vetoed in an election year. and the President Democrats.33 gave no assurance that he would sign it. The NEA and some liberals. meanwhile, lost entbu- A $1 billion version of this bill passed the siasm for a bill without teacher aid and, “pre- House Education and Labor Committee on a ferred a campaign issue to a watered down party-line vote. Supporters knew it was unac- bill.“36 As one Democrat complained later of ceptable to the Administration and the conser- the NEA: vative House Rules Committee, but it served They are very disappointing. They tactically to raise electoral interest and allow want the moon. Their attitude is that negotiating room.34 they might as well try a big bite and go Senate education supporters remained wary down fighting rather than to establish of raising religious controversy again through a new area of federal responsibility in broader legislation. A construction aid bill a small scale reasonable way. passed the Senate Committee in 1959 despite They’re the worst, most ineffective NEA dissatisfaction. When it reached the Sen- lobby around.37 ate floor. Democratic leaders offered a general aid substitute that produced a tie vote along As expected, the issue of federal aid to edu- party lines. Vice President Richard Nixon was cation did become an important issue in the forced to break the tie and, thus. vote against 1960 Presidential campaign. In campaign teachers’ salaries in an election year. A scaled- speeches, John Kennedy attacked Nixdn’s tie- back version of the salary and construction aid breaking vote. Nixon defended his actions in bill was then passed by the Senate. With it the first televised Presidential debate, explain- came a new rationale for federal involvement. ing: “When the federal government gets the By 1960, the need for “emergency” school con- power to pay teachers, inevitably. it will re- struction aid had lost considerable urgency. Af- quire the power to set standards and to tell ter all, education had survived for a decade teachers what to teach.“38 For its part, the without federal aid. Accordingly. the federal NEA made clear where its sympathies lay, role in this legislation was envisioned to be a without endorsing Sen. Kennedy directly. Thus. continuing, long-term contribution to educa- the issue was clearly drawn during the election, tional improvement.35 although it is impossible to determine whether For practical reasons. however, the House it had any importance in determining peoples’ Education Committee had returned to the Presidential choices. If it did, no popular man- emergency construction formula. Although re- date was expressed, given the extremely close ceived in partisan terms, this was able to pass election. Public opinion polls at the time, how- the major procedural hurdle by a one-vote ever, showed clear popular support for the margin in the House Rules Committee. It sub- general concept of federal aid.39 sequently became the first large-scale, aid to education bill to pass the House of Representa- MORE YEARS OF FAILURE- tives since 1872. The Powell Amendment pro- FEDERAL AID CONTROVERSIES, hibiting aid to segregated schools was again 1961-64 attached to the legislation, but the influx of liberal Democrats proved sufficient to pass the There is no “end. in sight.“‘0 Thus, Mun-

26 ger and Fenno concluded their study of the interest loans for parochial schools. The ve- struggle for federal aid up to 1961. surveying hemence of its demands and the controversy the dismal past and speculating on the future. thus created rapidly produced a similar inflexi- Rarely do cautious social scientists commit bility among parochial aid opponents. The is- themselves so fully in predictions, but rarely sue had been revived in full force. and mem- have they had such strong basis for doing so. bers of Congress were barraged with “hundreds When the Kennedy Administration entered of thousands of constituent messages.“‘J office, the hopes of federal aid supporters This did not prevent the Senate from acting were running high, and with good reason. For favorably on the bill, however. The Senate was the first time in history, federal aid to educa- traditionally the more hospitable branch for tion was a top priority of the President. The federal aid programs. A solid core of northern Kennedy Administration assumed active lead- and western Democrats was committed to a ership of the effort to achieve a general aid federal aid bill, and Senators, in general, had bill. In addition, the House had passed an aid broader religious constituencies and thus more to education bill the year before-for the first flexibility on the issue. Wayne Morse (D-OR], a time in almost 90 years. Finally, the Rules Com- long-time federal aid supporter. skillfully mittee, which had been the principal institu- maneuvered the public aid and expanded tional obstacle in 1960, had been enlarged and NDEA bills through the Senate, avoiding racial liberalized through the efforts of Congressional issues along the way. leaders and the Administration. It was the House that assumed, once again, The Administration submitted a permanent. its classic role as graveyard to federal general multibillion dollar bill for salary and construc- aid legislation. The Education and Labor Com- tion assistance that was similar to the one the mi ttee advanced the legislation over unanimous Senate had passed in 1960. In hope of giving it Republican opposition, but the Rules Commit- wider appeal, the formula was broadened tee voted to delay action until the NDEA pro- somewhat, and the bill was tied to impact aid posal arrived. Despite its enlargement, the renewal. The major alteration. however, was Rules Committee remained a difficult hurdle that aid for parochial schools was explicitly for aid to education measures. Republicans denied. This proved to be momentous. As the and southern Democrats. adamantly opposed to first Catholic President, Kennedy felt unable to any general aid, comprised a near &jority, compromise on an issue so emotionally vofa- while federal aid supporters were deeply di- tile. As Sundquist observed: “Kennedy’s Cath- vided over religious issues. When the NDEA olicism had been the single most important is- bill arrived, with its parochial school loans, sue” in the campaign.41 the expected committee approval of general aid This provoked a bitter reaction from the did not follow. One parochial school supporter. Catholic hierarchy which sparked, in turn. a re- Rep. James Delaney (D-NY], refused to back surgence of religious controversy of great the compromise. and it failed in committee by magnitude. The issue had been relatively qui- one vote. escent during the 1959s. as long as policy cen- Far from representing simple obstruction. tered on temporary aid for construction alone. however, Sundquist suggests that the Rules The prospect of a permanent, massive infusion Committee action reflected considerable pres- of federal aid, however, raised “the stakes. sure from Congressmen. who were reluctant to and the church moved rapidly to rally its politi- take a public stand on the extremely divisive cal power.“42 In an attempt to head off Cath- issue: “Many members were happy to be re- olic opposition, White House aide Theodore lieved of the responsibility of recording their Sorensen and HEW Secretary Abraham Ribi- votes on the two bills. [Clongressmen were coff negotiated with church leaders on a com- shaking Delaney’s hand for hours afterward.“” promise. The Administration offered to expand With the failure of general aid, a hasty version the equipment loan sections of the NDEA to of the old Kelly construction aid proposal was include construction loans for parochial resurrected. Monger and Fenno called it an schools. However, the church became “locked “artful contrivance for the capture of 51% of in” to its demands for a major program of low the votes.“‘5 It included the reauthorization

27 of impact aid in an attempt to hold that popu- they gained both wisdom and hu- lar program hostage. But Republicans over- mility.‘* whelmingly rejected it as a subterfuge, and it was badly defeated on a parliamentary manue- One manifestation of this new posture was ver designed to circumvent the Rules Com- greater utilization of the categorical aid ap- mittee. proach. This was part of a “strategy of sub- Fallout from the 1961 experience was long traction, dropping off controversial features of lasting. Although the Administration resub- [a] bill to minimize opposition.“‘9 It had mitted its proposals the next year. Congress nearly succeeded with the construction aid took no action on them. As Sundquist ob- approach of the 1950% and it proved successful served: “nobody had any stomach for another with the NDEA. round of religious warfare.“@ Congressional Accordingly, the Administration bill intro- Quarterly announced in 1962 that: “Several duced in 1963 was an omnibus collection of education aid backers said they felt that the special aid proposals. It included scholarships entire subject was dead for the foreseeable and construction aid for colleges, and programs future.“4 Overlooked in this prediction, how- for libraries, adult education, and vocational ever, was the possibility that experience might education at the elementary and secondary produce fundamental attitudinal changes on level. General aid was even cast in a new light, the part of major participants in the educa- intended as “selective” aid for areas of need tional aid debate. It was abundantly clear that identified by the states. refusal to compromise would mean that no The Congress broke the large bill down into large-scale aid program would succeed. Sund- component parts and focused on the most at- quist writes that: tractive and least controversial sections. Col- lege construction aid was passed in 1963, along For the leadership on all sides-Cath- with vocational education. The next year olics, Protestants, NEA, tacticians in NDEA was extended, with its institutional the Administration and in Congress- equipment provisions broadened to include and for supporters of school aid among English, reading. history. geography, and civics the general public, the 1961 debacle as “defense related” fields. The stage w;ts then was a chastening ordeal from which set to focus on a broader aid bill.

“See Table 4. above, and Lucille Eddinger. “Federal Aid FOOTNOTES far ‘Impacted Areas’ Still Holds Vast Political Appeal,” National Journal, Washington. DC, January 31, 1970. pp. ‘Munger and Fenno. op. cit.. p. 101. 217-218. *Ibid. ‘IIbid. JQuoted in Donald B. Johnson and Kirk H. Porter. eds., ‘IEdgar Bedenbaugh and Kern Alexander, “Financial Notional Party Platforms. 1890-1972, Urbana. IL, Univer- Equalization Among the States from Federal Aid Pro- sity of Illinois Press. 1973, pp. 403,387. grams.” in Johns. Alexander. Stellar. eds.. op. cit., pp. 268. ‘Quoted in Munger and Fenno, op. cit., pp. 53-54. 280. Congressional Quarterly, Congress and the Notion. “In a divided opinion in 1947, the Supreme Court upheld a Volume I: 1945.1964, Washington, DC, Congressional state law permitting school districts to reimburse parents Quarterly Service. 1965, p. 1202. of parochial as well as public school students for bus 6Quoted in Munger and Fenno. op. cit., p. 84. transportation lo school. The doctrine appeared to be that ‘Flat grants are based on population rather than need. parochial school participation in some supplemental ser- ‘Far instance, the AFT referred to the NEA legislation as vices would be upheld, but clearly not direct federal aid “the bosses hill“ because the NEA included school ad- to such schools. Everson Y. Board of Education, 330 U.S. 1. ministrators as well as teachers in its membership. Wraves, op. cit. p. 556. sOwted in Muneer and Fenno. OD. cit.. D. 122. ~-James Sundquist. Politics and Policy, Washington, DC, din ibid., p. 126. Braokines Institution, 1968. p. 155. This section rests heavi- dinibid. ly on h&-account. pp. 10-11. ZOlbid., p. 157. y Tiedf, “Historical Development of Federal Aid *‘Quoted in ibid., pp. 165-166. Programs,” in Roe L. Johns, Kern Alexander. and Dewey %undquist argues that such antisegregation position-tak- Stallar. eds., Status and fmpocf of Educationof Finance ing by members of Congress on the Powell Amendment Programs, National Educational Finance Project Volume was increased because a comprehensive civil rights act IV. Gainesville. FL. National Educational Finance Proiect. had been delayed; this removed an alternative opportunity for expressing views on racial policy. Ibid., p. 169.

28 isQuoted in ibid., p. 170 1960 Republican Platform, which endorsed construction “Ibid., p. 171. aid but proclaimed: “Primary responsihilily for educa- 25Quoted in ibid., D. 173 tion must remain with the local communities and the 26lbid.. p. 174. state.. Any large plan of federal aid to education, such *‘Ibid., p. 176. as direct grants for teachers’ salaries. can only lead ulti- goQuoted in ibid. mately to federal domination and control of our schools.” IgQuoted in ibid., p. 178. Quoted in Munger and Fenno, op. cit.. p. 98. TL 85.864. section 401. The section adds, however, that: *‘See Philip i&rank. The Politics of Federal Aid lo Edu- “The Congress reaffirms the principle and declares that cation in 1965: A Study in Political Innovation. Syracuse, the states and local communities have and mutt retain NY, Syracuse University Press. 1967, p. 43. control over and principal responsibility for public edu- %funger and Fenno. op. cit.. p. 170. cation.” %undquist, op. cit.. p. 188. 3’Congressionol Quarterly, op. cit., p. 1201. ‘zlbid., p. 189. %undquist, op. cit., p. 179. “Ibid.. p. 192. Ybid., p. 182. ‘*Ibid. %funger and Fenno. op. cit., p. 134. ‘Wunger and Fenno, op. cit.. p. 168. %undquist. op. cit., p. 185. %undquist. op. cit.. p. 193. %bfunger and Fenno, op. cit., p. 165. “Quoted in ibid., p. 205. JiQuoted in ibid., p. 166. “Ibid.. p. 19.5. “Quoted in Sundquist, op. cit., p. 187. Compare this to the %h,ger and Fenno. op. cit., p. 179.

Chapter 4 Passage Of The Elementary And Secondary Education Act: The Long Awaited Triumph

he long awaited breakthrough in federal aid T to education was finally achieved with the passage of the Elementary and Secondary Edu- cation Act (ESEA) in 196Fi1 The act began a new era in federal aid to education, doubling the federal share of elementary and secondary education expenditures and establishing a new pattern of intergovernmental relationships in education. Programs to aid the educationally disadvantaged, provide instructional materials, promote educational innovation, support educational research. and assist state education agencies were all established by ESEA. The act was the product of complex political circumstances. Throughout the long history of the struggle for federal aid, Congress had been the traditional focus of activity. Yet, ESEA was plainly the product of executive initiative, part of a broad Presidential agenda to combat poverty. The 1964 elections played a crucial role in the passage of the legislation, but this electoral role was an indirect one that complemented executive brokerage. 1964 also witnessed passage of the Civil Rights Act, which silenced many of the racial controversies that had plagued earlier education proposals. Finally. to a considerable extent during its passage, ESEA was treated politically as though it provided general aid to education, yet its categorical character carried great implications for its later implementation.

31 POLICY INITIATION forces that had contended over federal aid in the past.“5 The main participants included representa- The conceptual roots of ESEA can be traced tives of the US. Catholic Conference (USCC) to two developments that occurred in 1964. One and the NEA.6 Commissioner Keppel was in was the introduction of legislation by Sen. an excellent position to work with these major Wayne Morse [D-OR] to add poverty and un- interests, having developed good relations with employment rates to the impact aid program them on previous legislation. Key Democrats formula. The so-called Morse-Dent Bill was from Congress were consulted in the early opposed by the Johnson Administration during stages of discussion. but the premise of the hearings in 1964; but, with the War on Poverty negotiations was that: “The actions Congress it played an important role in making the edu- would be likely to take in this [church-state] cationally disadvantaged a legitimate federal area [would be1 closely tied to what these concern in education. groups would accept or reject in any proposed The second precursor of ESEA was the 1964 bill.“’ Presidential Task Force on Education, one of The negotiations produced a number of “un- many task forces created by President Johnson derstandings” among the interest groups which to prepare legislative proposals for his next formed the basis of the education legislation. term in office. It was headed by John Gardner, The key breakthrough was acceptance of the then chairman of The Carnegie Foundation “child benefit” concept. Federal aid was to and later Secretary of HEW. The task force re- focus on educationally disadvantaged children port was not the central source of ideas later in both public and parochial schools: it was drafted into ESEA.* nor did it resolve the not to be considered aid to the school itself. political obstacles confronting federal aid. This principle was embodied in Title I of ESEA, However, it did lend legitimacy to subsequent which distributes federal funds directly to local federal aid legislation by recommending a school districts according to a formula based poverty focus for such assistance and urging on average state expenditures on education federal promotion of educational change. and the number of school-age children from By late 1964, President Johnson had decided low income families. Local districts become to make federal aid to education a top domestic eligible for this portion of aid upon &ate ap- priority for 1965. The President argued in his proval of their program to address the needs of subsequent education message that, “Poverty educationally deprived children. This includes has many roots, but the taproot is ignorance.“3 local arrangements to involve private school The major task of initiation was performed students through “child benefit” and “shared under the leadership of Francis Keppel, then services” programs. U.S. Commissioner of Education. All knew that Title I accounted for five-sixths of initial the primary obstacle would be to resolve the ESEA authorizations and was, in the words of church-state issue in federal aid. As one Con- Bailey and Masher: “ an ingenious balance gressman put it: “We were all sensitive to the of power among levels of government, an in- start of another holy war. Politically, not many terweaving of specific and ambiguous program of us can afford a religious war-at least those parameters. and a mingling of short and long- of us from two-religion districts.“’ Keppel as- range objectives.“* They add, however. that: sumed responsibility for developing a proposal “it alone would fully satisfy neither the Ad- that would do this, along with Douglass Cater ministration’s policy objectives nor the con- and Lawrence O’Brien of the White House staff cerns of all interest groups.‘+ Thus, it was and the planning staffs of OE, HEW, and the supplemented by four additional titles that Gardner Task Force. addressed other aims in different ways: Eidenberg and Morey write that: ” (Tlhe heart of the process that produced the ele- l Title II-School Library Resources, Text- mentary and secondary legislative formula books and Other Instructional Materials: was. a series of meetings and informal nego- provided grants to states, on the basis of tiations involving the principal groups and total school enrollments. for instruc-

32 tional materials for public and private December 1964, while the USCC publicly an- school students and teachers. All materi- nounced support when the legislation was pro- als must be approved for use in the pub- posed by President Johnson on January 16, lic schools. The Commissioner of Educa- 1965. tion was authorized to direct states’ A factor which proved crucial in establishing programs where state law prohibited its these negotiated agreements was the 1964 elec- involvement in parochial schools. tion. As Eidenberg and Morey assert:

l Title III-Supplementary Educational The election. changed the political Centers and Services: this title was de- conditions under which education signed to promote innovative education- policy would be made in 1966. It al programs. Services provided included changed this environment sufficiently special educational centers to supple- to move the two principal groups to ment regular school programs, guidance positions of tolerance and flexibility and counseling, and special instructional on a legislative program which they equipment. Project grants were made both would have opposed under dif- directly by the Office of Education (OE). ferent conditions’0 but with approval of the state educational agency (SEA) required. The election dramatically strengthened the Ad- ministration’s core of liberal Democratic sup- l Title IV-Educational Research and port in Congress, which enhanced its bargain- Training: authorized grants to universi- ing position with the groups. Furthermore. ties and other organizations to conduct while aid to education was not itself a central and disseminate educational research. issue in the campaign, it was generally believed that the election provided the President with a l Title V-Strengthening State Education mandate for action. Agencies: authorized grants to states to These factors combined to make the group improve statewide planning, educational representatives more flexible. The USCC data, personnel. and leadership. Author- feared that the Administration could push ized temporary intergovernmental per- through a version of President Kennedy’s 3961 sonnel exchanges between SEAS and OE. legislation, which provided federal aid entirely to public schools. Failing to cooperate. Cath- . Title VI-Restriction of Federal Control: olic representatives believed they might be included a provision that no federal of- written out of a massive and permanent federal ficial exercise supervision of curriculum, aid program.” The NEA. on the other hand, administration, personnel. or choice of feared that a failure to cooperate on the legis- instructional materials in any school lation would produce dire consequences during system. implementation. Its relationship with OE was less close under Commissioner Keppel, given ESEA was clearly a dramatic departure from his higher education background and stress on earlier education programs and proposals. It educational innovation. The NEA might so ali- identified new federal interests in education. enate OE as to jeopardize its access during the With authorizations of more than $1 billion in development of regulations. Given these moti- the first year, it was massive in size and scope. vations, the new “child benefit” policy formula By contrast. the Morse-Dent Bill had authorized allowed the groups to move from their uncom- spending $218 million, the 1963 Kennedy pro- promising positions of the past without directly posal authorized $375 million. Perhaps most contradicting them. It was a “new ball game.” important in the short run, it was the first aid Other factors besides the election acted to to education act supported by both of the prin- ease the process of consensus building as well. cipal interest group antagonists-the NEA and Keppel’s relationship with the White House the LJSCC. The NEA announced its support for demonstrated to the parties involved that he the hill’s concept of aid to private schools in acted under Presidential authority. Further-

33 more. by settling the question of federal aid to decision was made to rush the legislation segregated schools the Civil Rights Act of 1964 through Congress before agreements could un- had neutralized the troublesome racial issue. ravel and latent conflicts could emerge. Bills were introduced in Congress on January 12. 1965. the same day the legislation was revealed CONGRESSIONAL PASSAGE by the President. Initial efforts focused on the House side, where the dangers of latent opposi- Notwithstanding the coalition that had been tion were the greatest. Only ten days after its established and the apparent resolution of the introduction, hearings were begun on the pro- religious issue, Administration and Congres- posal in the House Education Subcommittee. sional leaders took nothing for granted in There was immediately some Congressional planning the strategy for Congressional pas- resentment of the policy process that was saga. They knew that many coalitions over fed- underway. The legislation had largely been eral aid to education in the past had collapsed developed in secret and then sprung on Con- en route to passage. Indeed, settlement of the gress with the expectation that it be passed im- religious issue highlighted difficulties that it mediately and unamended.33 The religious had overshadowed. Additional efforts were compromise had solved the major problem of taken to address these conflicts prior to Con- most Democratic aid proponents, but many re- gressional consideration. mained unhappy with the formula. The propen- sity of many Republicans to oppose parochial *The formula was designed both to focus school aid was exacerbated by the partisan funds on areas of poverty and still dis- atmosphere of the policy process. tribute some assistance to virtually every These issues began to emerge during the sub- Congressional district; committee bearings. The greatest dissatisfac- *new programs and funding were in- tion was with the Title I formula. Edith Green cluded for every level of government- [D-OR), a” important Representative on educa- federal, state, and local: tional matters, attacked the limitations on inter- *stress placed upon educational innova- state equalization in Title I; by tying federal tion, which appealed to certain parts of aid to state educational spending, this program the education community, was combined for the disadvantaged could be skewed toward with massive support of the educational wealthy but educationally active states. From establishment. the other side, complaints were expressed over Considerable administrative discretion re- the failure of the formula to include as disad- mained in the legislation on various matters of vantaged the children of welfare recipients controversial detail. As Bailey and Mosher whose level of income was above the $Z.OOO write: poverty limit. To include such children would tend to aid northern states with higher welfare Title I exemplifies a common payments. legislative technique for dissipating Another issue concerned the ambiguity of political opposition in the enactment the program of federal assistance to parochial phase of controversial laws. Congress schools under Titles II and III. Despite the con- created a” undefined area of adminis- cept of child benefit, actually providing paro- trative discretion for the Commissioner chial school teachers and students with equip- of Education and the states far more ment and facilities, without aiding the school extensive than mere supervision of fis- directly, promised to be difficult to administer. cal accountability and probity, and de- The need to make this concept operational layed to the implementation stage of threatened to reopen the religious issue once Title I the job of dealing with unre- again. Furthermore. although the major groups solved issues.‘2 had been presuaded to accept these provisions. some groups did not accept this technique for This left important ambiguities that could be separation of church and state. Both the Ameri- exploited by federal aid opponents. Thus, the ca” Civil Liberties Union and the American

34 Jewish Congress expressed concern over these would begin immediately following the hill’s provisions. passage.” These arguments proved successful. Finally, Republicans charged that several As one member of Congress remarked: titles of the act authorized undue discretion and interference in local education on the part [Wle just had to make the hard of federal officials, despite the act’s avowal to choice and face the reality that in 1965 the contrary. Similarly, the Council of Chief the issue was not good education pol- State School Officers (CCSSO] publicly op- icy versus bad. The question.. was posed Title II because of its provision for direct whether there was ever to be federal federal administration of the program where aid to the elementary and secondary states were unable to do so because of state schools of this nation. The 1965 bill, in law. According to Bailey and Mosher: all candor. does not make much sense educationally; but it makes a hell of a This “escape clause,” a concession to lot of sense legally, politically, and the nonpublic school interests, was re- Constitutionally. This was a battle of garded by many professional educa- principle. not substance, and that is the tors and members of Congress as an main reason I voted for it.” undesirable extension of federal authority. It provoked attacks on Title Subcommittee hearings were completed in II that were more concerted and deter- ten sessions in 12 days, often running into eve- mined than opposition offered to the nings and weekends. A few small changes were propriety of the proposed program made by the subcommittee. Most notably, it itself.” was clarified that educational materials under Title II were to be publicly owned and simply However, other aspects of the legislation, such loaned for private school use. Unable to affect as Title V assistance to state education agen- any changes, Republican members of the suh- cies, “may well have rendered more palatable committee boycotted the legislative markups, to !hem.. provisions of other titles which pro!es!ing the “hasty and superficial” treat- they disliked.“‘5 ment given the bill.19 Despite the acknowledged validity of several Markup in the full Education and Labor issues, few changes were made in the legisla- Committee began immediately upon receipt of tion. The Administration’s position was that, the bill. Issues raised at the subcommittee stage faults aside, the bill was one that could pass. It continued during the “formalities” of full com- had saved members from their primary fear of mittee consideration.20 Mrs. Green joined with crosscutting religious pressures, and major Reps. Charles Goode11 (R-NY) and Albbrt Quie substantive changes could unravel the multiple, (R-MN] in seeking to alter the legislation. The fragile compromises that comprised it. As the Democratic leadership resisted all changes. The AFL-CIO testified: bill was reported to the full House by the Committee with its last major Congressional al- I repeat.. let’s get started.. and teration: the formula was altered to include get a bill through here, and begin to get the children of welfare recipients who earned some money into our school systems more than the original income limit defining where we know it is badly needed, poverty. Eight Republicans dissented from the and then we can take another good Committee report. look and get closer to the goal that On March 22, the hill cleared one of its tradi- both you and I want; and we make no tional hurdles. the House Rules Committee, by hones about it, that we want a general an 8-7 vote. Floor consideration began eight education bill.‘6 days later. Membership polls by the House leadership indicated easy passage, but precau- Even before the bill was reported to the House, tions were taken against troublesome amend- subcommittee chairman Carl Perkins (D-KY) ments. Administration strategists were sta- promised that hearings on formula changes tioned in the House gallery to provide helpful

35 replies to difficult questions.2’ Reps. Green. ministration strategists that the Senate pass the Good4 and Quie again led the attack, Pro- bill exactly as the House had, in order to elimi- posed changes in the formula. which benefited nate the need for a House-Senate conference many members’ districts, were beaten back, as over differences. Such a conference would pro- were all other amendments. The bill passed vide an additional opportunity for opponents the House with no more changes on March 26 to block the legislation, as actually occurred in by a vote of 263 to 153. As one observer re- 1960. This was an extreme case of deference to marked: tactical considerations. Since the Senate is a coequal branch of government, its members The education bill was the most in- naturally desire an opportunity to influence teresting bill of the first session of the legislation. In order to provide a degree of sgth Congress, because of the broad Senate input, the House Education and Labor base of opposition that could have Committee report was deliberately written to resisted it, and the interesting way in reflect a number of Senate views. Additional which the bill was put together to topics were taken up independently in the negate each segment of the potential Senate Committee’s report. Thus, Senators opposition. It was essentially an in- were able to influence key elements of the teresting technical problem in legis- legislative record that would later form the lating.** basis of federal regulations and court decisions. During Senate consideration of ESEA. the For their part, some Republicans called it the bill’s formula again became an issue. An “Railroad Act of 1965.“23 amendment to alter it and benefit a majority of Senate consideration proved to be less event- states was easily defeated.24 The bill passed ful. Sen. Wayne Morse (D-OR), chairman of the the Senate on April 9, 1965, by a vote of 73 to Education Subcommittee, had agreed with Ad- 18.

*Bailey and Masher. op. cit.. p. 51. FOOTNOTES ‘Ibid. ,OEidenherg and Morey. op. cit., p. 86. i “Ibid. The maim exceotion to this was ESEA Title III, educa- “Bailey and Masher, op. cit.. pp. 50-51. tional ir&ovatio~, about which there is general agreement ‘aBailey and Masher write that “. key staff members of that the Gardner Task Force was Ihe crucial innovator. Ihe education committees in both houses were frequently See. for example, Stephen K. Bailey and Edith K. Masher, consulted. but most of the key Senators and Congressmen ESEA: The Office of Education Administers ~1 Low. Syra- knew only what they read in the newspapers.” Ibid.. p. 61. cuse. NY, Syracuse University Press, 1968. p. 54. ‘

36 Chapter 5 New Controversies and Old: The Politics Of Implementation

resident Johnson signed ESEA into law on P Aprd‘. 11,196, in the one-room Texas schoolhouse where he had once taught. With his usual flair for the dramatic, he called it “the greatest breakthrough in the advance of education since the Constitution was written.“’ Passage of the act culminated more than 90 years of active struggle to achieve large-scale federal involvement in education. However, the politics of federal involvemenf did not cease with this achievement. There began, instead, a new phase marked by novel problems of implewmen- tation and recurrent issues of race, formula. and federal control. ESEA also established a pattern for future enactments. Subsequent proposals tended to mirror its focus on educational reform. adopting either a concern for the disadvantaged or for educational innovation. These areas defined a new rationale for federal involvement in education that could be adapted to other problems. Thus, following ESEA. passage of new programs to aid the disadvantaged included education for the handicapped, bilingual education, and Indian education. Pro- grams designed to stimulate state and local activity in new educational areas included environmental. ethnic, and career education.

ISSUES IN IMPLEMENTING AMBIGUOUS LAW ESEA was an artful political compromise. Largely for this reason. it was a difficult pro-

37 gram to implement. As former Commissioner The complexity of the program added to of Education, Harold Howe, remarked: these difficulties. Even had there been agreement on purpose. administration of the law ESEA was the only type of federal ac- would have been complicated. The act con- tivity in education which was likely to tained five separate titles, each with a different be politically viable in 1965. I doubt objective, funding mechanism, clientele, and that anyone could have dreamed up a intergovernmental relationship. Title I alone series of education programs more was a web of administrative complexity. By- difficult to administer but ESEA passing the states, it distributed federal funds was not designed with that in mind.2 directly to the county level through a formula based on average state education expenditures Inconsistent goals had been combined. and and poverty levels. Within counties, funds were potential conflicts bad been deliberately disre- to be distributed among school districts on the garded in order to ease passage of the act. basis of relative poverty. Once in the school Indeed, there was even disagreement as to system, however, the focus was to be on educa- whether the program constituted general or tionally deprived children, regardless of in- categorical aid. Many perceived the bill as come status. Local programs to assist such chil- general aid to education. This was certainly dren then required approval, not by the Office true of many in Congress. according to Eiden- of Education (OE] directly, but by the state berg and Morey: “. The participants in the education agency on the basis of federal guide- federal aid fight in 1965 all acted as though and lines. spoke as if the issue to be decided was whether the federal government would enter the field of EDUCATION AND CIVIL RIGHTS general aid to education.“3 It was true as well of local school officials. “, [A] number of With the implementation of ESEA. aid to local educational agencies interpreted ESEA as education became linked with federal desegre- a general aid to education bill,” write Bailey gation efforts, and racial controversy emerged and Masher: Yet, the structure of the program as a central issue in the program. This had not was categorical. a characteristic that was cru- been anticipated. Prior to 1964. federal desegre- cial to the bill’s passage. Title I, for example, gation efforts were centered in the’ federal was intended to benefit the educationally dis- court system. The Supreme Court had led the advantaged. Together with the legislation’s way in 1954 with the prohibition of educational stress on innovation, many expected this pro- segregation in the Brown decision. Implementa- gram to prod local government, to spur education of this decision was carried on by the tional reform. However, the Title I category courts under the mandate of “all deliberate was very broad, similar to a block grant. A re- speed.” Citizens dissatisfied with the speed of cipient class was identified, but the range of progress in their school district could bring suit possible services was practically “endless.“5 for enforcement, but this case-by-case method The ambiguity in the legislation gave con- was slow.’ siderable latitude for determining the actual The breakthrough was provided in the Civil content of the program in the program’s imple- Rights Act of 1964. This act prohibited dis- mentation. This placed great responsibility on crimination in public accommodations, em- the Office of Education. The situation was fur- ployment, and education, and it provided for ther complicated in other ways. The Office of federal enforcement through the legal system. Education was, itself, largely divided over the Most importantly for federal aid to education. proper interpretation of the act. Personnel however. Title VI of the act prohibited dis- hired under the Kennedy and Johnson Admini- crimination in any federally assisted program. stration tended to favor an activist federal role. Beryl Radin asserts that this provision of the Veteran employees of the office, however. gen- act was something of a legislative accident: erally favored a more restrained federal “The title had been originally inserted into the posture, based upon their conception of a ser- bill by the Kennedy Administration for bar- vice-oriented agency. gaining purposes: the John Kennedy assassina-

38 tion and the subsequent Johnson honeymoon been settled by the Civil Rights Act the year be- gave the section real life.“7 At the least, legisla- fore. It was not assumed that ESEA would be- tive intent concerning the enforcement of the come the crucial tool in implementing it. Some provision was ambiguous: have since questioned its effectiveness in this regard.” However, a recent study by Gary Or- “one of the powerful elements field places ESEA at the heart of southern de- within the legislative coalition-the segregation efforts: labor unions, church groups, and the NAACP-had a clear picture of a path The enforcement of the 1964 law that would be required for federal of- broke the logjam of resistance., As ficials to proceed from the status quo President Johnson left office in 1969 a to the goal enunciated in Title VI. The number of the goals of civil rights lead- minimal debate on the measure within ers were in sight. By the fall of 1965 Congress also reflected the failures of most southern school systems had exe- the contending interest groups in- cuted plans more demanding than volved in the lobbying to focus on the those won by litigation. The next year, administrative imperatives of the HEW toughened its requirements. As title. The Title VI issue [is] a” ex- President Nixon was sworn in, school ample of a policy area that took ad- assignment policies in the rural south ministrative form without a clear blue- were rapidly approaching parity with print for enforcement emerging those in the north.‘* through the legislative process.8 This served to enormously complicate the al- As a result, the provision was not vigorously ready difficult implementation problems of enforced in many federal grant areas.* ESEA and to strengthen political opposition to This was not the case in aid to education, the program. To the massive task of administer- however. where the linkage between federal ing a large and complex new law was added aid and discrimination was unavoidable, espe- the simultaneous requirement to enforce the cially in the south. ESEA became a major tool civil rights provision: in the enforcement of Title VI, as Radin observes: The task facing the Office of Educa- tion was staggering. It had to induce in the Department of Health, instant desegregation and to end pro- Education, and Welfare-and espe- grammatic discrimination in every cially in the education activities of the school district slated for the award of department-serious attempts were federal aid. Compounding the di- made to condition the federal dollar lemma was the fact that the Civil on nondiscrimination requirements. Rights Act provided no definitions of These serious efforts were made after segregation and discrimination. the enactment of ESEA.. Indeed, OE [T]he sheer volume of work involved spent many more hours. resources, and in processing the submissions of nearly effort in the Title VI requirements and 5,000 southern and border districts policies after the enactment of ESEA- severely impeded other USOE ef- almost a year after the 1964 Civil forts. [T]he fear that sizable blocks Rights Act was passed.10 of funds would not be distributed be- ca”se the necessary Title VI assur- There was a degree of irony in this result. One antes could not be negotiated and reason that ESEA avoided the troublesome processed in time brought the problem race issue in Congress in 1965. which had un- to crisis proportions.‘3 dermined so many federal aid attempts in the past, was the Congressional assumption that During the first year, OE guidelines for civil the federal aid and desegregation question had rights compliance allowed segregated school

39 districts to make a “good faith start.” relying legislative process and finally dropped. In- on voluntary desegregation plans, Funding cut- tended to “arrow the spending gap between offs were avoided. This strategy’s lack of effec- states, it had the perverse effect of increasing tiveness produced stronger aid requirements federal aid disparities by stimulating the most the next year.‘* Funding cutoffs for noncompli- affluent states. ance became more common. Additional formula changes benefited both Reactions to this effort were strongly “ega- groups but only by substantially raising the tive. The civil rights regulations greatly com- program’s authorization. One amendment al- pounded local disaffection with program con- lowed poorer states to use the national average straints arising from the categorical nature of of state school expenditures per child if this Title I. Moreover, in some instances the two was higher than their own average expenditure, sets of requirements were incompatible.‘5 thus increasing their relative share of funds. The result was a powerful Congressional reac- On the other hand, the low income definition tion: was raised to $~,ooo, which ajded the northern states. Both changes were to occur in 1968, but Congressional opponents turned bel- Congress later revoked the second change so ligerent when the agency made that it did not take effect. clear that it was actually aiming at Race issues dominated consideration of the transformation of the southern school legislation on the House floor. Eidenberg and systems. Southerners were shocked Morey write that: that HEW was prepared to take the almost unprecedented step of cutting off The preoccupation of the members large amounts of federal grants-in- with this issue was cause for some aid.‘” alarm among federal aid advocates and the Democratic leadership. They felt THE CONGRESSIONAL RESPONSE, they had enough votes to defeat any 1966 amendments to the bill except those involving 12ce.‘~ Due largely to Congressional dissatisfaction with the Title I formula when ESEA was An antibusing amendment was easily adopted, rushed through Congress in 1965, the program prohibiting any federal department or agency was given only a one-year authorization. Thus, from requiring “the assignment or transporta- it had to be considered again in 1966. In this tion of students or teachers in order to over- short time spa”, the Congressional environ- come racial imbalance.“‘* A small grant pro- ment was already in “marked contrast” to the gram providing aid to districts undergoing year before.” In addition to growing opposi- desegregation was eliminated. Most important- tion to HEW policies in the south, urban riots ly, major Administration opposition failed to and a” aborted Office of Education attempt to prevent House passage of the Fountain Amend- challenge de facto segregation in Chicago ment, which placed important procedural limi- served to heighten racial concern among many tations on OE’s ability to withhold school aid northern Congressmen. Furthermore. the grow- funds for discrimination violations. Senate ing war in Vietnam and the President’s falling modification of this provision prevailed. popularity had weakened the Administration’s however. standing in Congress. This was exacerbated Congress also established a number of new when President Johnson proposed a 50% cut in programs and earmarks in the ESEA. A new the popular impact aid program. Title VI was added to the act, authorizing a Congress was sharply divided over several program of federal grants to the states for the education issues. Republicans and southern education of mentally and physically handi- Democrats split with urban Democrats over the capped children. This program had bipartisan Title I formula. An incentive grant provision in support in the Senate and was accepted by the the formula designed to stimulate state educa- House in conference.20 Adult education pro- tion spending was contested throughout the grams were transferred to OE from the Office

40 of Economic Opportunity (OEO). Earmarks The prospects for basic change of ESEA were were established in the Title I program for the enhanced by serious divisions within the children of migrant workers and for children Democratic ranks. Southern Democrats. of attending Indian schools. Finally, Congression- course, remained thoroughly opposed to deal pressure for increased education spending segregation activities in the south. They held was strong. The Senate raised education autho- the balance of power in deciding the block rizations almost $1 billion above the Johnson grant issue. Northern Democrats continued to Administration’s request, and a $700 million in- be divided over the Title I education formula. crease was retained in the final bill. In addition. Rep. Edith Green (D-OR) had held critical hearings on the administration of ESEA THE CONGRESSIONAL RESPONSE, in the House Special Subcommittee on Educa- tion. Having investigated problems of funding, 1967 program organization, fragmentation, paper- The Congressional challenge to ESEA was work. and federal control, Mrs. Green had pre- even more serious in 1967. Federal control over pared a number of amendments to the educa- education became a central issue, while racial tion bill. controversy continued to jeopardize support The first amendment offered by Rep. Green for the legislation. Gary Orfield writes that: required that Title VI desegregation guidelines be uniformly enforced throughout the country. The mortal threat to the program This was adopted despite charges that it was suddenly became clear in early 1967. meant to kill the education bill. The Fountain House Democratic leaders were Amendment, placing procedural restrictions on shocked to learn that a Republican the cutoff of funds for desegregation violations, plan might well pass that would turn was passed once more. Another amendment ESEA into a kind of education revenue was passed that increased the formula allot- sharing.. In a long and dramatic ment of funds to poorer states in the south. fight the House leaders stalled the bill All of these alterations were favorable to the while education groups, the White south. This proved crucial in attracting suffi- House. and committee members cient southern support for ESEA to defeat the worked to put the coalition back to- Republican block grant proposalr For their gether again.2’ part, Democratic leaders and federal aid supporters had rallied to reconstruct their endan- In the 1966 election, Republicans reversed gered coalition. Quie had attempted to force the Democratic gains made in 1964 with a net the issue of federal control: “Are we going to increase of 47 seats in the House. The reinvig- give, step by step. more control to the Commis- orated Republican Party gave an education sioner of Education or are we going to restore block grant proposal strong support. It was state control?“23 In so doing, he had gained introduced in the House by Rep. Albert Quie support for his proposal from the state school (R-MN), third-ranking Republican on the Edu- officials, the Chamber of Commerce, and nu- cation and Labor Committee, and it had the merous small town school administrators who support of 12 of the 14 Republicans on the were upset over federal guidelines and paper- Committee. The block grant was an expression work. On the other hand, civil rights groups of concern over federal control of education. opposed limiting the federal role, as did most Under its provisions, Titles I, II, III, and V of big city school superintendents who feared a ESEA would have been consolidated into a loss of funds under state control and who often single grant to the states. It represented a fun- found state regulations as onerous as federal damental assault on the categorical character of ones. ESEA by: I’. leaving state and local school It was the church-state issue, however, which agencies to establish their own priorities and proved crucial in maintaining the federal aid to devise patterns for using the funds which coalition. Aid supporters feared the block grant best fit both their needs and their structure of would revive religious controversy in the education finance.“22 states, as they attempted to determine federal

41 aid priorities anew. Religious controversy ESEA survived a strong challenge in 1967, al- might then escalate and endanger federal aid it- though the federal role in education had been self. In short, the NEA. the Catholic Confer- weakened by the Green Amendment and the ence, the National Council of Churches. and limits placed on desegregation efforts. As Tom their Congressional allies preferred to retain Wicker wrote in The New York Times, how- an acceptable status quo rather than raise the ever: “The significant thing is that if the Repub- prospect of upsetting “the delicately balanced licans now intend to fight it out on this line compromise” and risking “a holy war.“*’ The then the ‘real issue’ of American politics is no Quie Amendment was defeated by a vote of longer whether government should act hut how 166 to 197. and at what level.“zs Moreover, as in 1966, a With the defeat of the Quie Amendment, Rep. number of new programs were added. One was Green introduced a compromise proposal giv- bilingual education (Title VII], designed to im- ing control of Titles III and V (supplemental prove the education of children with limited centers and state agency grants) to the states. English-speaking ability. This program was de- Despite Administration opposition, this developed in the Senate, “at the initiative of Con- centralization proposal was passed by the gress, particularly the delegations from Califor- House. The Senate attempted to weaken it, but nia and Texas.“*~ Another Senate initiative it was restored in the conference version of the was a program of grants for dropout preven- bill. As in the House, the Senate became caught tion [Title VIII]. Finally, ESEA Title VI (state up in controversy over racial issues. A weak- grants for the handicapped) was expanded to ened version of the Fountain Amendment and include funds for regional resource centers for an antibusing provision were finally passed by handicapped children, model centers for deaf- that chamber. blind children, and personnel recruitment.

‘Ibid.. pp. 146, 211. FOOTNOTES %ince 1964. most agencies of the federal government have given little more than rhetorical attention to the goal of nondiscrimination expressed in Title VI.” Ibid.. p. 7. ‘Quoted in Jerome T. Murphy. “The Education Bureaucra- ‘nIbid., pp. 7. 92. cies Implement Novel Policy: The Politics of Title I of “Bee. for example. Bailey and Musher, op. cit., p. 153. ESEA. 1965-72.” in Allan P. Sindler. ed.. Policy ond Poli- ‘*Orfield, op. cit., pp. 36.2. 281-282. tics in America. Boston, LLltle Brown % Co.. 1973. p. 161. “Bailey and Masher. op. cit.. pp. 144.148. ‘Quoted in ibid.. p. 194. ““In March 1986. OE issued a set of new requirements that ‘Eidenberg and Morey, op. cit., p. 91. Congressional clearly displayed a mood of impatience with the progress Quarterly called the act. “the first general aid to educa- of the previous year. In general. the tune end the sub- tion law.” Congress and the Notion, Volume II. op. cit.. p. stance of the revised guidelines were tough.” Ibid., p. 155. no. ‘SIbid., pp. 149-150. *Bailey and Masher, op. cit., p. 18.3. ‘-Orfield. DD. cit.. u. 237. *“The schools could reduce their class sizes. hire re- “Eidenb&i and Corey, op. cit., p, 186. medial reading teachers. buy special equipment, serve ‘*Ibid.. p. 195. breakfasts et school-the possibilities were endless,” “Quoted in ibid., p. 194. Congressional Quarterly. Congress and the Notion, Vol- ‘Orbid., pp. 19tl. 201. ume II, op. cit., p. 710. Murphy notes that: “The House “Gary Orfield. Congressional Power: Congress ond Social Committee Report on ESEA contained a ‘laundry list’ Change. New York. NY. Hacourt, , Brace, lovanovich. of 49 possible Title I expenditures ranging from reading programs to health services. .” Murphy, op. cit., p. 169. ZsQuoted in Eidenberg and Morey. op. cit.. p. 208. *See. for instance: Gary Orfield. Must We Bus?, Washing- *aQuoted in ibid.. p. 211. ton. DC. Brookings Institution, 1978. p. 362; and Beryl Z’The remarks of Speaker John McCormack [D-MA) and &din. Implementation. Change, and the Federul Bu- Rep. Hugh Carey (D-NY). respectively. quoted in ibid. reaucracy. New York. NY, Teachers College Press. 1977. Z’Quoted in ibid.. p. 213. p. lcl(1. “P.L. SO-247, Congressional Quarterly. Congress ond the ‘Radin. op. cit.. p. 58. See also p. 5. Notion, Volume II. op. cit.. p. 713.

42 Chapter 6 Federal Aid To Education Under Fire: The Nixon Years

hen the Nixon Administration came to of- w.flee III 1969, ESEA was a seriously troubled program. Its rationale was suspect, its performance questioned. There were flaws in the formula that were exacerbated by state and local practices. There were complaints that federal controls under the program were both too strong and too weak. As Samuel Halperin, one of the architects of the program under the Johnson Administration, remarked in 1970, little celebration greeted ESEA on its fifth anniversary:

Not among the ranks of federal budget makers and top policymakers, many of whom seem to doubt the act is “cost effective.” Not among educators. many of whom accept its funds but complain of excessive red tape and bureaucracy in order to obtain relatively little federal money. Not among the embittered parents of ghetto children, most of whom have seen pre- cious little change for the better in the quality of their children’s education. Not even among the Congressional liberals who were the act’s most dedi- cated advocates, but who are now em- barrassed by the critics and seem unable to counter with dramatic success stories made possible by ESEA.’

The problems which gave rise to these con-

43 terns were genuine. ESEA was possibly the most important goal of Title I than it is most evaluated federal program in existence. to insist that its most important objec- Thorough evaluation had been required by tive could be measured by counting the law, at the initiative of reformers such as Sen. number of hot lunches served.. or Robert Kennedy (D-NY], concerned with politi- the number of private school children cal accountability, and management reformers served.. To conclude on the basis interested in applying cost-benefit analysis to of standardized test scores that Title I social programs.2 Yet, evaluation efforts were is not (or is) “working” is not justified.5 surprisingly difficult to actually perform. “There are numerous reasons why efforts to Moreover, a 1969 study by the National Ad- evaluate Title I failed. The central cause is that visory Council on the Education of Disadvan- school districts had no incentive to collect or taged Children indicated that, however rare, report output data, and federal officials lacked successful compensatory education projects the political muscle to enforce evaluation could be devised.6 Defenders of Title I could guidelines. “3 Evaluation studies that were point to poor local administration or inade- done tended to produce discouraging results quate funding as the real culprits in cases of for program supporters. They showed that failure.7 Wirt and Kirst write that: “Indeed, achievement test scores of children partici- [civil rights organizations] felt that Title I pating in Title I compensatory education pro- never had a chance to bring about achievement grams were generally not significantly better gains.. because the money was being spent than those of similar children not participating for general aid and diverted from the special in the program. When improvements were dis- educational needs of disadvantaged children.“8 covered. they usually proved to be temporary. The political effect of the evaluation studies. As julie Roy Jeffrey summarized these studies: however. was clearly negative for ESEA. The distribution of funds under Title I was the lackluster results from large- equally controversial. To begin with, the pro- scale programs were suggestive.. gram spread funding very widely, despite its Compensatory education, as most of- poverty rationale. A school district needed ten organized. did not appear able to only 100 poor children or 3% of its enrollment overcome the effects of poverty with in order to qualify for federal aid. Untler this any predictability. It was obvious formula, 95% of the nation’s counties were eli- that Title I had not lived up to the gible.9 The interstate allocation of funds was rhetorical claims made for education criticized for the same reason and has con- in the early days of the War on Pov- tinuously been an issue of Congressional dis- erty.’ pute. As noted previously. the formula responds Such conclusions were not unanimously positively to state educational expenditures as shared. The objectives of the program were so well as to poverty, thus aiding the active but broad and varied that, apart from methodologi- wealthier states of the north. The 1967 change cal ease, it was unclear that test scores should in formula favored the south. but did not to- be the basis of evaluation. As McLaughlin ex- tally erase this tendency. In per capita alloca- plains: tions: an analysis of impact on achieve- The allocation per formula child is ment assumes increased achievement relatively low for counties that contain to be a program goal and that the treat- high proportions of eligible children. ment activities could conceivab!y have This is because the southern states, some effect on academic achievement. which have the lowest educational ex- Title I. however. evidences no such penditures. also contain most of the agreement among local programs on districts that have heavy concentra- either means or ends. It is little tions of low income children.‘* more meaningful to assume that better academic achievement is the single ESEA defenders could counter that, after the

44 1967 formula changes, Title I did have an equal- classroom carpeting, bedroom sets, izing effect, in contrast to most other federal football jerseys. HEW auditors. and state aid programs: estimated that Imisuse of funds] was “substantially greater” than 15% of Title 1 is markedly more redistribu- Title I’s total allocation.” tive than other state and federal aid programs. A recent study of aid In a “scathing” attack on OE’s administration programs in education, welfare, and of Title I, the report charged that: other areas suggests that Title I might be the most redistributive of all fed- The audit reports have brought to light numerous violations of the law eral domestic programs providing funds to jurisdictions. Title I fund- and have recommended that millions ing was shown to have a correlation of dollars be recovered by the federal government. Yet in only three cases of -0.76 with county per capita income. Only the food stamp program came has the Office of Education sought and close to equaling this apparent redis- received restitution of funds illegally tributive effort.” spent.. Even in the most flagrant cases.. the Office of Education has Nevertheless, the existence of this controversy failed to act.‘5 itself, with its charges and countercharges. served to weaken the program’s justification These critiques all gave essentially the same and support. reasons for the failure of federal officials to The issue of federal control over education enforce Title I guidelines. OE has traditionally continued to provide a third area of controver- been a weak organization which deferred to sy. The strength of the issue had been illus- the practices of state and local school officials. trated in the block grant contrdversy of 1967. The complexity of the Title I program tended Rep. Quie pressed the issue once more in 1969. to reinforce this posture. making effective fed- Paradoxically. however, most students of ESEA eral control through the program virtually im- have emphasized the degree of freedom exer- possible. The Office of Education established cised by local school officials and the limita- eligibility guidelines and criteria for local tions on federal oversight. As Milbrey Mc- projects. Enforcement of these was.left to the Laughlin observed: “In practice, many LEAS states, however, which frequently ignored [local education agencies] have used Title I them.‘6 Since Title I money was automatically funds as general aid, some quite blatantly and disbursed by formula. the only direct form of others by stretching the operational definition control was the drastic step of total cut off of of ‘category’ to its broadest interpretation.“‘2 aid. Jeffrey’s study of ESEA agrees: “. the Office The result was that practically no one was of Education did not dominate state and local satisfied with the ESEA. The circumvention of authorities. Local areas used funds as they compensatory education objectives displeased wished.“‘3 An important study by civil rights liberals and minority spokesmen. There was groups in 1969 reached similar findings. It uti- equal discontent among local school officials. lized internal HEW audits which disclosed: Certain federal regulations, such as Title VI, had been effective in changing established lo- numerous violations of the law cal practices. Furthermore. the categorical across the country. Title I supplied nature of ESEA and the mandate for evalua- general aid for 011 children in some tion produced considerable paperwork. restric- school districts, rather than focusing tions. and red tape. Frieden and Dunbar main- on the special needs of the disadvan- tain that the program’s data requirements for taged. Title I was used in place of state substantive evaluation surpassed those for fis- and local funds, rather than adding cal accounting and ignored the relatively supplementary services in others. In small share of federal funds in local education: addition, a variety of questionable, if “Data are required to cover the entire field of not illegal, purchases were made: endeavor: all activity, all revenues, 011 expendi-

45 tures, all evidences of need, work measure- The effort was modified, however, when Re- ment, and accomplishment.“” Moreover, Edith publicans and conservative Democrats suc- Mosher argues that the traditional autonomy ceeded in limiting the attempted “deep freeze” of education increased the “initial shocks” of authorization to only two years. federal regulations under ESEA. Many stan- Although dissatisfied with ESEA, the Ad- dard and accepted federal practices in other ministration had not yet developed an educa- functional areas appeared as “federal control” tion policy. ESEA was not mentioned in the in education: “When federal funding at long President’s 1969 domestic policy message. How- last became available, education was cata- ever, the Administration did have an estab- pulted into intergovernmental administrative lished policy on budgetary matters, so the arrangements that were already familiar in initial battleground became appropriations. other sectors, improvisational and unwelcome Actually, constraints on the education budget as they may have seemed to educators.“*~ Re- had begun to emerge before the Nixon Admin- gardless of outcome, Office of Education at- istration assumed office. Due to mounting fis- tempts to enforce program compliance height- cal pressure from the Vietnam War, education ened such local fears of control. appropriations began lagging seriously behind During the Nixon Administration, the dis- authorizations. By fiscal 1968. appropriations satisfaction with the program that had de- comprised only 43% of authorizations as the veloped in the final years of the Johnson federal fiscal role in education stabilized at Administration was reflected fully in Adminis- about 8% of all educational expenditures. Or- tration policies. Reviewing the education pro- field observes that “The original plan for a grams of the 60% President Nixon in 1970 rapidly expanding program accounting for a concluded that: “the best available evidence growing proportion of the nation’s school indicates that most of the compensatory educa- needs was abandoned in favor of operation at tion programs have not measurably helped a stationary level, with small increments of poor children catch up.“‘* The Administra- funds.“*’ tion’s response was a three-tiered attack on the The Nixon Administration challenged this federal role in education which lasted the stable funding pattern. In order to protect “the length of the Nixon Presidency. This included: already small range of fiscal options available confrontation with Congress over the education to the President,” the Administration broposed budget; the exploitation of racial politics; and a $450 million reduction in the previous year’s the promotion of education revenue sharing. education budget.** This was even further be- low the incrementally growing budget that all THE POLITICS OF THE had come to expect. The result had enormous EDUCATION BUDGET consequences for further Administration proposals. The entire education lobby was alien- Congress took the first action ofi education in ated in one swift blow. The Administration’s 1969. Anxious to protect the Great Society pro- action succeeded in overshadowing the deep grams, the House Education Subcommittee cleavages within the education community by rushed a five-year reauthorization to the floor. focusing attention on the common denomi- Orfield remarks that: nator of funding. In effect, it robbed itself of a major political resource for advancing future the committee leaders actively initiatives: mobilized the constituents of the programs they wished to continue, then Instead of exploiting the many po- used hearings and floor debate to pro- tential divisions within the education vide a platform for the pressure groups groups and within Congress, the Ad- they helped generate. Democrats ministration’s budget posture created were trying to force the issue and deny an unprecedented sentiment for the new President any significant in- unity.23 fluence on the basic school program throughout his first term.20 In response to the budget cuts, over 70 or-

46 ganizations formed the Emergency Committee than his education budget requested. This was for Full Funding of Education Programs to lob- increased another $450 million several months by their cause. It included the entire range of later when Congress passed the fiscal 1971 ap- affected interests: the major teacher organiza- propriation. President Nixon again vetoed the tions, the school board association, state school bill, but an “angry” Congress, facing re-elec- officials, Catholic and other religious groups. tion, overturned the veto. A major Congres- civil rights groups. the higher education lobby, sional-interest group initiative had thus over- the representatives of libraries, handicapped, coma stiff executive opposition and maintained and instructional material manufacturers, etc. incremental growth in the education budget. The formal chairman of the body was Eisen- Shortly thereafter, budgetary battles com- hower’s former HEW Secretary, Arthur Flem- menced once more. The Administration’s ing. The chief organizer and lobbyist, how- budget for fiscal 1973 remained stable despite ever, was Charles Lee, former staff member of inflationary erosion. Responding to the Con- the Senate Education Subcommittee [and, gressional mood, the normally conservative with former Sen. Wayne Morse. a key architect House Appropriations Committee approved a of the federal education effort]. major budget increase. With the support of the Lee directed a massive grassroots lobbying still active Full Funding Committee, the House effort at Congress. Included were “swarms” of added an additional $364 million on the floor- volunteer constituents-teachers, principals. primarily for Title I but including aid to li- school board members, librarians-buttonhol- braries, impact aid, adult education, and other ing Congressmen and packing the galleries programs. The Senate increased this further, during floor debates and votes. As Lee ex- and the House-Senate conference agreed to plained at the time: an $800 million increase over the Nixon budget. Our strategy consists of providing Making this an election issue, the President opposition Congressmen with backup vetoed the bill on August 16, 1972. This veto information.. After all we’re not was sustained. as was a subsequent veto of a talking about some insignificant group $300 million increase. Following his 1972 re- election victory, President Nixon embarked on of people. Teachers are one of the nation’s largest voting blocs. In 1972. a new attempt to control expenditures through the next Presidential election year, impoundment. The resolution of this issue shifted action to the courts. there will be more teachers than farmers at the polls.24 EDUCATION AND THE POLITICS OF Working through the summer and fall of 1969, RACE: LIMITING FEDERAL the lobby succeeded in gaining a $1 billion DESEGREGATION ACTIVITY increase over the Nixon Administration’s proposed education budget, overriding the presti- Active promotion of racial desegregation by gious Appropriations Committee on the House the Executive Branch halted after the Nixon floor in the process. Administration came to office in 1969. Nixon The President vetoed the education and had attacked these policies during the 1968 health appropriations bill on prime time tele- election and signaled his intentions when he vision in January 1970, and the Administration appointed John Mitchell, campaign manager mobilized its own lobby effort of House Re- and architect of his “Southern Strategy.” to the publicans in order to prevent a veto override. post of Attorney General. The Administration President Nixon refused to spend the addition- began by avoiding education fund cutoffs for al money even if it were appropriated. The noncompliance with the Civil Rights Act. When Administration’s efforts proved successful as the courts prohibited backsliding in the rural the override attempt failed, but that success south. however, the Administration shifted its proved temporary. Since fiscal 1970 was al- focus to busing and began supporting the foes ready half over by that time, the President of urban desegregation in Congress. Antibusing was forced to accept a subsequent emergency amendments came to dominate Congressional appropriation bill containing $500 million more and public attention in education, overshadow-

47 ing other important issues and programs passed by the House late in 1972. again by very through the early 1970s. wide margins. Lacking the votes to defeat it, In March, 1970, the Administration proposed Senate liberals adopted an earlier civil rights a $1.5 billion program to aid school districts tactic from their southern conservative op- undergoing court-ordered desegregation. The ponents. They filibustered the bill to death. so-called “Emergency Education Act” was to be The busing issue returned. however, in 1974. a temporary program, intended mainly for the Led by the Michigan delegation and supported south. “to reward while helping the white south by the Administration, the House again passed in its enforced surrender to integration.“25 Im- the sweeping antibusing amendments of 1971, portantly for urban areas. it prohibited using overcoming all attempts at compromise. The the money for desegregation busing. amendments were again defeated in the Sen- Senate liberals changed this bill into one that ate-by a one-vote margin-and the bill was would promote integration; the antibusing pro- modified in conference. Restrictions on the use vision was removed. Liberal ranks in the of federal funds for busing were adopted, and House, however. were split over the beginnings HEW enforcement powers were weakened, but of court-ordered desegregation in the north. As the limitations on the courts were softened. a result: Once more, liberal influence in the Senate and in the House Education and Labor Committee. The House went wild in a late even- from which the House conferees were drawn, ing session on November 4.1971. Mem- obstructed Administration and House attempts bers showed that they would pass any- at civil rights retrenchment. Orfield concludes thing labeled antibusing by giving of this period: whopping margins to a whole series of drastic limitations on both the courts The school issue showed the change and Executive Branch civil rights between Presidential and Congres- officials.26 sional leadership in civil rights., The Eisenhower and Kennedy Admini- The House added to the emergency aid bill a strations had gone to Congress for moratorium on court-ordered desegregation. It additional authority. and President forbade the use of any federal funds to sup- Johnson had used that authorfty port busing and forbade executive use of Title vigorously. President Nixon, however, VI to halt education funding of school districts came asking for a retreat. Though the violating a court busing order. Senate had long been the bastion of The Administration endorsed these House southern power, it was now the main actions. It proposed additional legislation to arena for defense of school desegrega- limit court-ordered desegregation, including tion initiatives. The House seniority restrictions on legal remedies and the reopen- syste? had long been accurately de- ing of busing cases in the south. The Senate, nounced as a major barrier to racial however, ignored the President’s proposals justice. but it now served to protect and so qualified the House amendments as to civil rights programs from a hostile make them meaningless or ineffectual. Despite House majority.28 repeated “instructions” from the full House to stand firm, the liberal House conferees worked EDUCATION REVENUE SHARING: with the Senate to neutralize the antibusing REDUCING THE FEDERAL ROLE amendments. Greatly modified, the Emergency School Assistance Act, which was the major Education Revenue Sharing (ERS) was the categorical program initiated by the Nixon third component in the Nixon Administration’s Administration, was signed by an “angry” challenge to the established federal role in President.27 education. Although related conceptually and The President’s proposal to limit court-or- circumstantially to the budget and racial con- dered desegregation and busing, entitled the troversies, ERS constituted a far more compre- “Equal Educational Opportunities Act,” was hensive challenge. It proposed consolidating

48 all of the major federal grant programs in edu- facturers or bilingual aid supporters predicta- cation into one large grant-in-aid to the states. bly opposed the consolidation of existing Funds would be distributed automatically categorical programs in their area of interest. through a formula with almost total control However, r:>ajor support that might have been over the objectives and uses of aid given over mobilized Lnder other circumsfances was not to the states. Representing a coherent alterna- cultivated. ‘The Chief State School Officers tive to the categorical tradition in aid to educa- and the National School Boards Association tion, ERS had enormous implications for the indicated varying degrees of support for the federal role in education. Yet. it was not, in the concept but did not campaign actively for the end, a very influential proposal. It was so wide- plan. Crucial groups like the NEA could have ly and totally dismissed throughout the educa- gained from unrestricted federal aid but op- tion community that it never became the focus posed ERS. of controversy it potentially was. There were several reasons for this broad The immediate roots of ERS can be traced to opposition. First. prior Administration posi- a proposal made by Acting Commissioner of tions in education had alienated potential al- Education Terre1 Bell in the fall of 1970.29 lies. Budget cuts, in particular, had aroused Prior to assuming federal office, Bell had been grave suspicion of the Administration. ERS was state education commissioner in Utah, where interpreted by many in the education field as a he had become concerned with the degree of new budget control instrument. These suspi- federal intrusion into education. As he estab- cions were reinforced by impact aid cuts that lished a task force in OE to explore the concept were reflected in the block grant plan. As Rep. further. Secretary Elliot Richardson endorsed Quie (R-MN) observed: the idea in a speech to the Council of Chief State School Officers in November 1970.30 The Consolidation is politically acceptable proposal was then picked up by the White only if it carries the possibility of more House and incorporated into President Nixon’s money. The Administration approach massive “Special Revenue Sharing” initiative appeared to mean less money.as of 1971.3' The education revenue sharing (ERS) plan Similarly. Rep. John Brademas (D-IN) argued proposed consolidating 33 separate educa- that consolidation simply required more tion programs into one $2.6 billion grant pro- IIIOIEY “To spread that modest amount of gram.32 Funds were to be distributed to the federal money more broadly, and not target states according to a formula based on need it seems to me to be pouring a glass of water and population. States were given broad au- on the Sahara.“36 thority over the use of funds, establishing their Other issues were also important. Many in- own priorities and objectives. Federal ear- terpreted the rhetoric on federal control to marks were established in the program, how- mean federal withdrawal on civil rights. The ever, to direct state efforts into five general ERS plan would have been subject to Title VI areas: assistance for educationally disadvan- of the Civil Rights Act, but the Administration taged children. for handicapped children, for was limiting enforcement of this provision. vocational education, for support services, and Parochial school officials also opposed the for federally impacted areas. plan, as they had the Quie block grant in 1967. The ERS proposal was almost totally rejected for fear of reopening religious controversies by the Congress and educational interest that had been laid to rest. Despite their opposi- groups. Rep. Carl Perkins [D-KY), Chairman of tion to federal regulations, local and state the House Education and Labor Committee, school officials were divided over ERS since compared the program to “throwing money each level of government had its own distinct down ratholes.” Rep. Edith Green [D-OR], interests in education. Local officials disliked who had sponsored decentralization proposals state control and regulation as much as federal in 1967, called the proposal a “farce,“3 regulation. and they generally preferred to The opposition of certain interests had been maintain direct federal-local ties to education. expected. Groups like the audiovisual manu- Finally, members of Congress, even Republi-

49 cans like Quie, had not been consulted over Great Society drive that had dramatically in- the ERS plan. Most Congressmen resisted los- creased the federal role in education.. gave ing what control they had over existing federal way to trench warfare over the basic frame- aid. The targeted, categorical, innovative ap- work of that role. Congress’ achievement was proach to federal aid reflected the views of to preserve that framework.“4’ On the one many members that state and local educators hand, none of the most significant avenues for had failed in certain areas of education. Elimi- expanding or reshaping the federal role were nating categorical aid restrictions would simply taken. The federal government did not assume reinforce local educational priorities that Con- a one-third share of financial support for edu- gress disavowed. In short, ERS would have cation as the NEA advocated. The federal gov- altered both the structure and rationale of ernment did not assume a major new role in federal aid as it had evolved with great diffi- equalizin ’ educational expenditures as many culty over a long period of time-without, as advocated after the Serrono v. Priest case. in Orfield observes, “providing any clear bene- which the California Supreme Court, relying fits.“J’ on both the state constitution and the U.S. Con- ERS received a dismal reception in Congress stitution, ruled that the “quality of public edu- in 1971. Despite this, the plan was reintroduced cation may not be a function of the wealth in subsequent years with little change. It con- of.. a pupil’s parents and neighbors.“‘2 Nor tinued to be ignored by educators and Con- did the federal government adopt a leading gressional policymakers alike. Confident from role in advancing metropolitan desegregation. its heady victory in the 1972 election, the Ad- Rather. incremental program development ministration offered its 1973 version of the continued throughout the Nixon-Ford years. plan-“The Better Schools Act” as an all-or- This can be seen clearly in the case of pro- nothing proposition in education.38 Yet, grams for the handicapped and bilingual edu- months later. it continued to be ignored on Capitol Hill, and the take-it-or-leave-it stance was quietly abandoned. Table 8 Fear of a Presidential veto of education legis- FUNDING HISTORY lation in 1974, however, led to Congressional OF BILINGUAL EDUCATION initiation of a smaller compromise consolida- AND STATE HANDlCAPPEb tion in that year. In a House-Senate com- PROGRAMS, 1969-76 promise, seven categorical programs were (in millions of dollars) consolidated into two broader programs, in- St?& cluding: guidance and counseling and audiovisual assistance programs from NDEA and Handicapped state aid, supplemental centers. and library YBLV Bilingual Education Programa assistance from ESEA.39 This was a largely 1969 $ 7.50 529.74 symbolic gesture with little impact on federal 1970 21.25 37.48 involvement in education. A beleaguered Presi- 1971 25.00 46.13 dent accepted it, however, as “an important 1972 35.00 56.38 first step.“‘0 Even the symbolism was largely 1973 45.00 75.96 obscured by debate over antibusing amend- 1974 66.35 85.78 ments which overshadowed the 1974 education 1975 85.00 87.86 act. 1976 96.27 95.87

%liS do** not include federal aid to handicapped children THE NIXON-FORD YEARS provided under the Education cd the “andrcapped *cc which EVALUATED by 1976 was providing additional funds 01 $10 million. SOURCES: HOUSB Canmiftee on Education and Labor, S”b Despite years of continual challenge, the committee on Elementary. Secondary, and “ocafional muca- fiscal role of the federal government in education. Hearings on HR 15. Part 3: Bilingual Ed”caf;a”, pp. 424. 425 and Hearings on HR 15. Part 14: nus I--smte Hand;- tion emerged from the Nixon-Ford years SW- capped Program. 95th cm& ,*t sess.. 1977. p. 165. prisingly unchanged. In Orfield’s view: “The

50 cation. for example. Each was fairly small in and education budgets, both had appropria- 1968 but had grown to substantial size by 1976. tions approaching $100 million by that time Despite the struggle over categorical assistance (see Table 8).

FOOTNOTES in Education: Federal Impact on State Agencies, Chicago. IL, Public Administration Service. 1971. p. 52. ‘aEdith K. Masher. “Education and American Federalism: 7Quoted in Frederick M. Wirt and Michael W. Kirst. The Intergovernmental and National Policy Influences.” in Politico1 Web of American Schools. Boston, MA, Little. Jay Scribner, ed. The Politics of Education, Chicago, IL, Brown & co., 1972, p. 153. National Society for the Study of Education, 1977, p. 118. %e Milbrey Wallin McLaughlin, Evaluation and Reform: **Quoted in Orfield. Congressional Power. op. cit., p. 154. The Elementary and Secondary Education Act of 1965, ‘OIbid., p, 134. This section rests heavily on his account. Title I, Santa Monica, CA, Ranp Corporation. 1974. *‘Ibid., p. 133. albid., p. viii. *vhi,+----.. n.r~ 136.~-~~ IJulie Roy Jeffrdy, Education for the Children of the Poor. “Ibid., p. 137. Columbus. OH, Ohio State University Press, 1978. pp. 167. ZlQuoted in Lucille Eddinger. “CPR Lobby Profile: Full 173. Funds for Education?,” Notional Journal. Washington. DC. @McLaughlin, op. cit., pp. 40-41. November 1. 1969. p. 49. See also “Administration, Lob- ‘See Jeffrey, op. cit.. p. 167. bies Put Pressure on Capitol Hill to Vote ‘Right’ on Veto,” TExpenditures of $509 to $809 per child appeared lo be the Notional Journal. Jan&,, 24.1970. range necessary for successful programs. rather than the z%hn Osborne. ouoted in Orfield. Connressional Power. average $113 per child provided under Title I. Ibid.. p. 109. op. cit., p. 174.’ ’ ‘Wirf and Kirst. op. cit., pp. 163-164. =Ibid., p. 179. -Jeffrey, op. cit., p. 191. z’lbid., p, 182. P.L. 92-318. Title VII. ‘ONafional Institute of Education. Title I Funds Allocation: *‘Ibid.. p. 80. The Current Formula. Washington. DC, U.S. Government 2gEd Willingham, “Nixon Administration Seeks Massive Printing Office, 1977. p. vii. - Change in Federal School-Aid Procedures.” National l,Ibid.. pp. 93-94. Although the south, with its high concen- lawnal, Washin~Lan. DC. February I&1971, p. 324. tration of eligible (poor) children, receives less per eligi- anibid. ble child, it receives by far the most Title I dollars per atThis was a series of six large consolidations of existing school-age child. Furthermore. the region as a whole re- federal programs in community development, employ- ceives almost twice the Title I funds of any other region. ment and training. transportation, rural development. law Ibid,, pp. 13. 17. On Title I equalization, see also Beden- enforcement, and education. baugh and Alexander. op. cit., pp. 277-280. 3sH.R. 7796 and S. 1669,92d Gong.. 1st Sess.. 1971. -‘McLaughlin. op. cit., p. 23. SaQuoted in Karen DeWitt. “Administration Revenue-Shar- ‘,leffre”. OD. cit.. D. 136. ing Plan Unlikely to Get Passing Grade from Congress,” 4vlurph~. bp. cii.: p. 174. Notional Journal. Washington, DC, March 24,1973. p. 421. ?lRuby Martin and Phyllis McClure. Title I of ESEA: Is It s*Quated in Orfield, Congressional Power, op. cit., p. 166. Helping Poor Children?, Washington, DC. Washington Re- a@Quoted in ibid., p. 163. search Project of the Southern Center for Studies in Pub- *nOwted in ibid.. D. 186. lic Policy and the NAACP Legal Defense and Education l&d.. p. 197. . Fund. 1969, p. 52. As the management and enforcement 3aFor example, Assistant HEW Secretary Sidney Marland systems of ESEA have developed since the late 1960s, and announced in January 1973, that alternatives to ERS were as local districts have come to fully recognize that Title I “irrelevant.” “We stand an ERS. live or die.” Quoted in is not a program of general aid. such abuses have been DeWitt. op. hf.. p. 418. considerably diminished. See comments on the recent ad- 3eP.L. 93-389, Title IV. See Stafford Smiley, “The Ele- ministration of ESEA in Donald W. Burnes, “A Case Study mentary and Secondary Education Amendments of 1974,” of Federal Involvement in Education,” in Mary Frase Harvard Iournal on Legislation, 12. Cambridge. MA, April Williams, ed.. Government in the Classroom, New York, 1975. pp. i47-494. NY. The Academy of Political Science, 1978, p. 89. ‘aQuoted in Orfield, Congressional Power, op. cit., p. 169. -6Wirt and Kirst write that “lT]he performance of the “Ibid., pp. 164-165. states varies enormously. often depending. on the par- %errono Y. Priest, 483 P.2d 1241, 1244 [Cal. 1977). The U.S. ticular state political culture.” Op. cit., p. 159. See also Supreme Court, in a separate case-Rodriguez v. San An- Joel S. Berke and Michael W. Kirst. Federal Aid lo Educa- tonio-refused to uphold the principle elaborated in the tion: Who Benefits? Who Governs?, Lexington, MA, D.C. Serrano case. See discussion of the Rodriguez case in the Heath & Co., 1972. next chapter. “The Role of The Federal Courts in Edu- “Burton Friedman and Laird Dunbar, Grants Management cation.”

Chapter 7 The Role Of The Federal Courts In Education

he federal judicial role in education has be- T come extremely important since the early 1950s. Today, an average citizen in Boston, Louisville, or Denver might well consider the courts to be a more significant form of federal involvement in local schools than federal grants-in-aid or regulations. As Alan Cambell writes, “in the field of education, no. single public decision has had more impact than the Brown vs. [Board of Education of Topeka decision requiring the desegregation of the schools.“’ Similarly, John Hogan explains that:

The modern trend in decisional law is toward “education under supervision of the courts.” Not only do the courts today decide more cases affecting the schools, but also when they issue mandates, orders. and decrees they retain jurisdiction over the cases to assure that their orders are effec- tively carried out. The roots of this new judicial function can be traced to about 1950, when erosion of the “classi- cal view” of education as exclusively a state and local function began and when the federal courts. recognized that certain policies and procedures of the public schools failed to meet Con- stitutional requirements of the First and Fourteenth Amendments.z

53 Table 9 the Court declared segregated schools to be “inherently unequal” and thus in violation of FEDERAL COURT CASES AFFECTING the Fourteenth Amendment of the Constitu- SCHOOL ORGANIZATION, tion.5 This began the school desegregation ef- ADMINISTRATION, OR PROGRAMSa,, fort that revolutionized elementary and sec- 1789-1971 ondary education in the south and that has led in recent cases to intense court involvement in Federal Cowl the daily operations of certain schools through- PWbd cases d out the country. ins-lsssb 50 The degree of judicial intervention in educa- 1697-1906 15 tional administration did not increase immedi- 1907.1916 22 ately following the Brown decision. Rather, it 1916-1926 44 evolved over the course of the next 15 to 20 1926-1936 67 years. A degree of precedent for Brown, itself, 1936-1948 88 had been incrementally developed in a series 1946-19% 112 of cases concerning education before 1954.6 The 1658-1966 729 unequivocal ruling of Brown departed from 1967-lS71C 1.273 this incremental pattern of Constitutional interpretation, but the bold new interpretation was implemented slowly under the doctrine of “all deliberate speed.” As Martin Shapiro observes:

Perhaps the most startling thing about the whole school desegregation pattern was that between Brown II in 1955 and Swarm v. Charlotte-Mecklenberg in 1971, the record is relatively devoid of Supreme Court decisions implement- The judicial role in education has grown in ing great policy pronouncement.. both scope and scale. The increased influence Aside from its quite indefinite instruc- of the courts on educational policy over time tions on speed, the Court issued some can be clearly seen in Table 9, which traces the equally indefinite instructions on the trend in legal cases affecting education. In the substance of desegregation plans.7 five-year period from 1966 to 1971, there were nearly twice as many education cases as in the The task of enforcing local desegregation decade from 1956 to 1966 and approximately during this time was left to lower federal courts ten times as many cases than the 1946 to 1956 responding to complaints filed against individ- period.’ Correspondingly. the scope of court ual school districts. From time to time, the involvement has grown as well. Besides a cen- Supreme Court made unequivocal pronounce- tral focus on race discrimination in education, ments on the unconstitutionality of dual school court decisions affect major issues of church systems, but it left the specifics of implementa- and state, student and teacher rights, and cur- tion largely unexamined. Orfield describes the riculum. limitations that characterized this mode of enforcement: THE JUDICIAL ROLE IN SCHOOL DESEGREGATION The lawyers’ effort was prodigious but the results were meager, although The era of a major role for the courts in edu- eventually they did manage to elimi- cational policymaking can be traced most di- nate the unconstitutional “massive re- rectly to the Supreme Court’s decision in sistance” laws in most states. The Brown v. Board of Education’ in 1954, in which desegregation process began in larger

54 districts. The pace [was] accelerated crimination in education is that dual systems of slightly. by a supportive Kennedy education are unconstitutional. The concept of government, but only about one black “state action,” which is crucial in distinguishing child in 50 was in a desegregated de jure from de facto segregation-and thus school after ten years.8 establishing violation of the Fourteenth Amend- ment, has been broadened in cases such as Accordingly, effective enforcement of desegre- Keyes. It now includes both the maintenance gation largely awaited the Civil Rights Act of of segregated schools, previously common in 1964, which established new enforcement the south, as well as less extreme methods like mechanisms (such as federal aid cutoffs under racially motivated student assignments and Title VI) and provided federal enforcement school siting more typical of discrimination in personnel in the Departments of Justice and the north (as in Denver and Boston). Similarly, HEW. This proved fairly successful in the rural the legal remedies available to redress dis- south where blacks and whites often lived in criminatory practices have been expanded to close proximity: include a broad arsenal of techniques. ranging from court-ordered busing to determining The enforcement of the 1964 law teacher assignments, hiring patterns, school broke the logjam of resistance. By the construction. and educational programs. Thus, end of the Johnson Administration the scope of federal court involvement in edu- most of the rual south had desegre- cation where factors of racial discrimination gated and the Executive Branch initi- are present has grown extraordinarily large, as ative had stimulated much tougher major Constitutional scholars agree: judicial requirements.9 As southern school administrators After 1966. the locus of desegregation efforts compiled a record of bad faith and de- began shifting back to the federal courts. While lay, black groups presented more and the Departments of Justice and HEW dimin- more detailed desegregation plans to ished their desegregation activities under the the district courts for imposition on Nixon Administration,‘0 the Supreme Court those administrators. . . became increasingly active in questions of implementation. Although lower court implemen- Implementation became administra- tation of Brown had often been slow, by the tion in the most literal sense. Litigation late 1960s there had developed conflicting took the form of presenting alternative techniques and interpretations of implementa- detailed desegregation plans with the tion which required clarification. In 1968. the judge choosing one or the other or de- Supreme Court declared unconstitutional vising his own combination. The dis- “freedom of choice” and “free transfer” de- trict judge thus came to make decisions segregation plans which served to undermine on such things as school personnel integration. It required integration plans that management, building maintenance, “promise.. to work now.“” In 1969, the attendance reporting, and so on.15 Court pronounced an end to the policy of “all deliberate speed” and declared that “the ob- Local governance of the schools in ligation of every school district is to terminate some districts in the south has been dual school systems at once.“12 In 1971 the critically circumscribed (if not virtu- Court upheld the use of citywide busing to ally eliminated] where it has been achieve integration of a major urban school used by the people to perpetuate dis- system.13 And in 1973, the Supreme Court ac- crimination based on race. So funda- cepted a broader definition of discriminatory mental a matter as the right of a school practices in education with major implications district governing board to sell prop- for the north.34 erty has been placed under the neces- As defined by this series of cases, the current sity for prior court approval, as has Constitutional policy concerning racial dis- the decision to build and where to lo-

55 cate new school buildings, the appoint- tal or physical handicap, linguistic ability, sex, ment of principals and other key or wealth of neighborhood. school personnel, and so forth. Beginning in 1970, parental challenges to local education practices that excluded handi- In the area of school governance, capped children from a public education on the therefore, the requirements of the new grounds that they could not profit from an edu- equal protection encompass almost the cation began to meet with succass. Two prece- whole of the state Education Code.. .j6 dent-setting right-to-education lawsuits, decided on the basis of the Fifth and Fourteenth I” major metropolitan areas the Amendments, were Pennsylvania Association court decrees that require extensive for Retarded Children [PARCJ v. Common- busing in order to achieve racially bal- wealth of Pennsylvanio~* in 1971 and Mills v. anced schools have all the qualities of Board of Education of the District of Colum- social legislation: they pertain to the bi@ in 1972. In the former, PARC brought a future; they are mandatory; they gov- class action suit on behalf of all mentally re- ern millions of people: they reorder tarded children in a federal district court. The people’s lives in ways that benefit consent decree in that case stated that “provid- some and disappoint others in order to ing free education to nonhandicapped children achieve social objectives. I can think of while depriving youngsters with mental handi- no earlier decrees with these charac- caps of an equivalent right established a color- teristics in all our Constitutional his- able constitutional claim.“21 The Mills suit tory.” shortly thereafter extended the “right to an education,” as well as due process protection, It is noteworthy, however, that some poten- to all handicapped children, not just the re- tial expansions of federal involvement have tarded. Both of the cases, it should be noted, not been developed. Most importantly, the were decided prior to the passage of either distinction between de jure and de facto segre- Section 504 of the Rehabilitation Services Act gation has not been abandoned, despite the of 1973 or the Education for All Handicapped broadening interpretation of what constitutes Children Act of 1975. * state action. To date, de facto segregation has Other groups, such as non-English-speaking not been declared unconstitutional, even students and girls and women have not met though it is the primary cause of educational with such unequivocal success in their claim segregation in the north. Furthermore. the to a Constitutional guarantee of equality of Supreme Court has resisted expanding desegre- educational opportunity, although clear-cut gation efforts to include entire metropolitan cases of gross discrimination have been out- areas. Unless direct and substantial involve- lawed. For instance, a potential expansion of ment in discriminatory practices can be traced the equal protection rationale has not been de- to surrounding communities, the Court is un- veloped in cases relating to sex bias in educa- willing to overrule considerations of local tion. In particular, the Supreme Court has not autonomy in education.18 included sex with race in the special category of “suspect classifications” which demand “strict scrutiny” under the Equal Protection OTHER EQUAL PROTECTION ISSUES Clause. Such a classification would shift the burden of proof in sex discrimination cases Following the successful application of the from the normal presumption in favor of the Equal Protection Clause to cases of racial questioned educational policy, requiring a segregation. recourse to the newly receptive plaintiff’s demonstration of Constitutional courts was attempted by a number of other violation, to a presumption opposed to any groups claiming educational discrimination. sexual classification, absent a demonstration They argued that the legal reasoning that proof overriding state interest in the policy. Given hibited discrimination based upon race also the difficulty of defining sexual equality in applied to discrimination on the basis of men- cases other than those involving a demonstra-

56 ble exclusion, the courts have tended to rely that reliance on the local property tax to fi- on the Legislative and Executive Branches to nance education produced such broad dis- address most of the sex discrimination ques- parities in educational spending among school tions. Thus, the task of the courts has become districts as to preclude equal treatment under one of interpreting the broad language of legis- the laws. Since the properly tax is used widely lation such as Title IX rather than the language throughout the country to finance education, of the Equal Protection Clause. In these cases, the implications of this case for the structure however, the courts have appeared willing to and operation of American education were uphold the withdrawal of federal funds where ~IlOlTIlOUS. grant recipients fail to comply with federal The Supreme Court, however. repudiated law.22 this Constitutional interpretation. It refused to A similar pattern is evident in the Supreme apply the suspect classification to the educa- Court’s decision regarding bilingual education tionally deprived. Moreover, it declared that in Lou v. Nichols.23 In this case, the Court held education, while important, is not a basic Con- that the City of San Francisco violated Title VI stitutional right.27 It thus held that a decen- of the Civil Rights Act by failing to provide tralized system of education may reflect a special education for non-English-speaking legitimate state interest: children of Chinese descent. This ruling has meant that all schools that receive federal The Constitutional standard under grants are contractually bound to provide some the Equal Protection Clause is whether type of special instruction to non-English- the challenged state action rationally speaking children by virtue of the Civil Rights furthers a legitimate state purpose or Act. Importantly, however. the Court did not interest.. We hold that the Texas base its decision on the Fourteenth Amend- plan abundantly satisfies this stan- ment, as the plaintiffs had requested, nor did dard.28 it require bilingual education as the only pos- Perhaps in response to the difficulties of de- sible remedy. It thus rendered the issue suh- segregation cases. and lacking surer Constitu- ject to Congressional alteration through a tional guidance, the Court also argued that it change in the law. One legal scholar argues lacked capacity to make judgments iq this area that this “choice of legal standards was not in- superior to those of state and local authori- consequential.“*’ Rather, ties2* For all of these reasons, it chose re- straint over an extension of Fourteenth Amend- Lau’s reliance on federal statute ment guarantees to the area of educational rather than the Equal Protection finance. Clause may have presaged a new mode There is a certain irony in the Court’s re- of interplay between courts and legis- sponses to the plaintiffs in these cases. Most of latures. The courts have established the groups pressing claims have received a Constitutional minima concerning most sympathetic hearing by the Court and frequent- of the equal opportunity claims. It is ly a favorable ruling. Many of the decisions, in now the province of the political sys- fact, have had tremendous operational and tem to give more detailed meaning to financial implications for school districts. At the minima and to secure the resources the same time, the hope of educational reform- needed for their implementation.25 ers that equal opportunity goals could be achieved more quickly and more completely The judicial unwillingness to expand equal through the courts than through the political protection guarantees has been most pro- process has not been realized. The courts have nounced in the area of educational finance. become increasingly uneasy about expanding The Supreme Court’s position was clearly enun- Constitutional guarantees in the face of subtle ciated in San Antonio v. Rodriquez in which and controversial questions of equal protec- the Court refused to overturn the Texas system tion, and there appears to be a growing sensi- of educational finance on equal protection tivity to the limitations of judicial solutions to grounds.26 The plaintiffs in this case argued political problems of distributive justice.

57 THE FIRST AMENDMENT CASES: l the granting of tax exempt status for prop- RELI’GION AND FREE SPEECH erty used only for religious purposes,*2 . the lending of state-approved textbooks to Another major area of judicial involvement parochial school students.33 in American education involves First Amend- However, direct state aid to parochial schools ment issues. There are two broad categories has been held unconstitutional, as has a state here: [l] Issues of church and state, based upon program of tuition tax credits to parents of the establishment and free exercise clauses of parochial school children.34 the Constitution, which read: “Congress shall A second cluster of religion cases has in- make no law respecting a” establishment of re- volved educational curriculum and procedures. ligion, or prohibiting the free exercise thereof.” Since 1920, the Court has affirmed the right of These clauses have important implications for parents to send their children to private rather parochial school finance and public school cur- than public schools, although this right is not riculum and procedures. (2) Issues concerning absolute.35 The Court has also upheld Ye- freedom of expression in the schools, derived leased time” programs of religious instruction from the Constitutional dictate: “Congress shall in which students are allowed to leave public make no law.. abridging the freedom of schools for a portion of the school week to at- speech.” Largely by virtue of recent cases, this tend religious instruction elsewhere.36 In a tre- clause now has implications for educational mendously controversial case. however, the issues like free expression by students and Supreme Court struck down state laws requir- teachers and certain other matters of student ing recital of prayers in the public schools.37 rights. The Court declared that only the “objective” study of religion. “part of a secular program of RELIGION AND THE SCHOOLS education,” would be permissible in the public schools.38 State laws that prevent the teaching Apart from racial discrimination, this may be of Darwinian theories of evolution have also the most important and far reaching area of been held unconstitutional.39 court involvement in education. The object of With the number of conflicting decisions on court activity has been to balance the poten- religious questions. attempting to determine tially conflicting implications of the establish- the composite influence of the Court dn the ment and free exercise clauses. On the one church-state issue in education is difficult. hand, the Supreme Court has not allowed gov- One scholarly observer has concluded that, on ernmental support of a particular religion or balance, the Court’s decisions have been religion in general. On the other hand, the weighted toward secularism: Court has sought to avoid a situation of governmental hostility toward religion. This ten- With the exception of permitting states sion has led the Court to experiment with a to provide bus transportation and number of legal guidelines in this area: a wall books to students attending private of separation between church and state, gov- schools, the Supreme Court has reli- ernmental neutrality, and no excessive en- giously struck down all other attempts tang1ement.30 to aid sectarian elementary and sec- One cluster of religious cases has dealt with ondary schools. Further, the objective questions of governmental aid to parochial study of religion.. seems to encour- schools. This issue created long-standing polit- age a mental attitude of distance and ical difficulties for Congress in the develop- reservation with regard to religion, the ment of federal aid to education, and it has very opposite of commitment. The im- proved complicated for the courts as well. In plicit message. is. that religion Everson Y. Boord of Education, 31 the Supreme should be approached from the out- Court upheld a New Jersey law allowing pub- side, as a cultural phenomenon. lic transportation reimbursements to parents of Thus, despite the Supreme Court’s parochial (as well as public] school children. statement that public schools may not The Court has also upheld: promote a religion of secularism, its

58 rulings in many respects seem to leave and secondary education has grown enormous- the schools with no alternative but to ly in recent decades. The courts have become offer at least a nonmilitant form of se- deeply involved in certain areas like race dis- cularism:0 crimination. and the scope of issues touched on EDUCATION AND FREE SPEECH by the courts has grown broad. As van Gee1 argues. however, the depth of judicial involve- This area has been less developed Constitu- ment in many areas is shallow and irregular: tionally than church-state relations, but certain issues have been ruled on here. In general, the The breadth of involvement of the Supreme Court has dealt with questions involv- federal courts in shaping the educa- ing free expression by students and teachers tional program to which children may and the extent to which schools can impose cer- be exposed is impressive.. They in- tain ideas and values on students and teachers, volve themselves in the religious, poli- versus promoting an educational “marketplace tical, and cultural content of the school of ideas.“” Specifically, the Court has ruled program as well as concern themselves that state laws requiring students to salute the with the minimal adequacy of the flag or pledge allegiance violate the First school program.. But breadth of in- Amendment.‘* Much more recently, the Su- volvement should not be mistaken for preme Court has recognized the right of stu- depth of involvement. In many respects dents to express political beliefs in school in a the courts have restrained themselves. nondisruptive manner, such as wearing m-m- placing sharp limits on how far they bands to protest the Vietnam War. The Court are willing to go in executing these declared that “It can hardly be argued that various roles.4B either students or teachers shed their Constitu- tional rights to freedom of expression at the A marked tendency toward judicial modesty schoolhouse gate.“‘3 now characterizes many Supreme Court de- Similarly, state laws requiring that teachers cisions: disclaim membership in the Communist Party or disavow advocacy of the violent overthrow Many of the post Rodriquez deci- of the U.S. government have been found un- sions reveal a renewed respect for the constitutional, although teachers can be re- shadowy but nonetheless real demar- quired to pledge to uphold the Constitution.44 cation between Constitutional problem The Supreme Court has also upheld teachers solving and problem solving general- wearing armbands and refusing to salute the ly.. Today, courts are inclined to flag. As Tyll van Gee1 summarizes the Court’s stay their hand, relying on the political holdings on free speech in education: “[T]o an process to resolve questions of distri- extent, the schools must remain open forums butive justice as these affect the allo- for the expansion of political ideas-even cation of particular goods such as edu- those with which the school board officials cation:’ disagree.“‘5 Thus, while the courts will remain important THE JUDICIAL ROLE IN EDUCATION: federal actors in elementary and secondary AN OVERVIEW education, the judicial boldness of earlier decades seems to have moderated since the Federal court involvement in elementary Rodriquez decision.

FOOTNOTES Interest. Lexington, MA, D.C. Heath 8 Co.. 1874. pp. Q-10. ‘Ibid., p. 7. ‘347 U.S. 430 (1854). lQuoted in Michael W. Kim, ed., The Politics of Education ‘This reads. in part: “No slate shall, deny to any per- 01 the Local, State. and Federal Levels. Berkeley. CA. son within its jurisdiction the equal protection of the McCufchan Publishing Corp.. 1870, p. 322. laws.” ‘John C. Hogan, The Schools. The Courts. and The Public *Sweott v. Painter. 339 U.S. 829 (1950); and McLaurin Y.

59 Oklahoma State Regents, 339 U.S. 637 (1950). ““Education. is not among the rights afforded explicit ‘Martin Shapiro and Douglas Hobbs, The Politics of Con- protection under our federal Constitution. Nor do we find stitutional Law, Cambridge, MA, Winthrop Publishing Co.. any basis for saying it is implicitly so protected.” Son An- 1974, p. 509. tonio Y. Rodriquez. in Shapiro and Hobbs. op. cit.. p. 481. ‘Orfield, Must We Bus?, op. cit., p. 362 **lb& p. 483. 3Ibid. ‘gIbid.. pp. 481482. See also joel S. Berke, Answers to In- ‘nIbid.. pp. 280-281. equity: An Analysis of the New School Finance, Berkeley. “Green Y. County School Board, 391 U.S. 430 (1968). Mon- CA, McCutchan Publishing Corp.. 1974. roe Y. Board of Commissioners, 391 U.S. 377 [I%%), quoted ‘OShapiro and Hobbs. op. cit.. p. 240. in Shapiro and Hobbs. op. cit., p. 522. w30 U.S. 1 (1947,. x2Alexunder Y. Holmes City Board of Education, 396 U.S. 32Walz Y. Tox Commission, 397 U.S. 644 (1970). 19 (1969]. quoted in ibid. ‘lBoard of Education Y. Allen, 392 U.S. 371 (1971). ‘“Swarm Y. Charlotte-Mecklenburg, 402 U.S. 1 (1971,. “Lemon Y. Kurtzman. 403 U.S. 602 f19711. and Committee “Keyes Y. School District #I, Denver CO, 413 U.S. 189 for Public Education and Religious iib&y Y. Nyquist, 413 119731. U.S. 756 119731. i’ihapiro and Hobbs. op. cit.. pp. 510. 511. 3’For example, the schools must meet state standards. “Hogan. op. cit., p. 155. Pierce v. Society of Sisters, 268 U.S. 510 (&WI]. “Archibald Cox, The Role of the Supreme Court in Ameri- ‘%rach Y. Clouson. 343 U.S. 306 (19%). con Government, New York. NY, Oxford University “Engel Y. Vitale. 370 U.S. 421 (X%2]. press, 1976, p. 77. %chaol District of Abington Y. Schempt. 374 U.S. 203 18Milliken Y. Bradley, 418 U.S. 717 (1974). (1963). in Shapiro and Hobbs, op. cit., p. 254. “Pennsvlvania Association for Retarded Children fPARCl ‘9Epperson v. Arkansas. 393 U.S. 97 (1968). Y. Co~manweolth of Penn~ylvanio, 343F. Supp. 2?9 1E.D: -Tyll van Geel, Authority to Control the School Program, PA, 1972, (consent decree). Lexington, MA, Lexington Books, 1976. pp. 29.22. 2QMills Y. Board of Education of the District of Columbia, “Ibid. 348 F. supp. 866 (D.D.C. 1972). 4ZWest Virginia State Board of Education Y. Barnette, 319 2’David L. Kirp. “Law. Politics. and Equal Educational Op- U.S. 624 (1943). This was one of the early cases in which portunity: The Limits of Judicial Involvement.” Harvard the Court began extending the provisions of the Bill of Educational Review. 47, Cambridge, MA, May 1977, p. 130. Rights to the states, by virtue of the Fourteenth Amend- **Ralph Stern. “Public Education.” The Urban Lawyer, ment. 10. Summer 1978. p. 503. ‘aTinker Y. Des Moines School District, 393 U.S. 503 (1969). 2aLau Y. Nichols, 414 U.S. 563 (1974). quoted in Shapiro and Hobbs, op. cit., p. 428. zAKirp. op. cit.. p. 134. *‘Keyishian Y. Board of Regents. 385 U.S. 589 (1967). -Ibid. “Tyll van Geel, op. cit., p. 28. “Son Antonio Independent School District Y. Rodriquez, ‘sfbid.. pp. 41.42. 411 U.S. 1 (1973). *‘Kirp. op. cit., pp. 132, 136.

60 Chapter 8 Contemporary Issues Of Federal Involvement In Education

y the end of the lwos, the agenda of educa- B.tmnal issues had shifted dramatically. No longer was there much serious debate over the appropriateness of any federal role in education, even though in earlier decades that controversy had clearly dominated, By 1980, neither the existence nor the categorical nature of ESEA was in jeopardy, although the specifics of the program were still being altered regulaclfi Because of improvements in’the administration of the program and in the allocation of formulas, Title I money was generally considered to be fairly successfully targeted to concentrations of children of low income families, and in contrast to the earlier years of the program, Title I funds were not being used as frequently for general aid. Furthermore, at least some Title I programs had been shown to have a significant positive effect on learning.’ However, the cost of these improvements in the program was a diminution of the discretion that had previously been afforded state and local officials and, to a certain extent, even federal program administrators. For example, the Education Amendments of 1978 illustrated the tendency of Congress to write increasingly detailed legislation and to specify carefully administrative procedures in planning and in expending and monitoring funds. Originally consisting of only nine pages, Title I now requires 47 pages to authorize the same basic program. Moreover, that legislation also dis-

fil mantled what little program consolidation had lation has increased in ways dispro- been established in the 1974 amendments and portionate to the amount of federal created some 16 new special-purpose programs, dollars received. [S]lowly, in- such as metric education-illustrating the con- exorably, and incrementally, the fed- tinuing Congressional preference for categori- eral government is taking over educa- cal progranx2 tion. Especially since 1965, the country In large part the focus of controversy shifted has moved-almost every year-to- away from ESEA because. although state and ward a national system of educa- local discretion in the administration of ESEA tion., By 1980 the phenomenon of had been reduced. it is still relatively well “federal takeover” may appear to be funded. In contrast, some of the newer regula- an understatement of the problem.3 tory programs impose huge costs on states and local school districts but provide little federal This represents a powerful indictment of cur- reimbursement. Thus. the focus of controversy rent federal policies in education. It is largely has shifted to federal regulation of education. based on new federal laws requiring increased Additional items on the education agenda by educational access and services for the handi- the end of the decade were the creation of a capped, new protections of student rights. and federal department of education and the at- various protections against race and sex dis- tempted enactment of elementary and second- crimination. Numerous problems have been ary tuition tax credits. Both issues could well associated with such requirements, including: have important implications for the federal role in education in future years and will be *Large scale costs of compliance: new laws discussed in more detail in this chapter. benefiting the handicapped have been identified as particularly expensive, posing “a huge financial burden for school dis- FEDERAL REGULATION OF tricts.“’ ELEMENTARY AND SECONDARY EDUCATION: A CONTINUING *Alteration of local priorities and proce- CONTROVERSY dures: this includes providing new programs and services for federal farget As previously shown, federal control of groups [like the mentally and physically education has been a matter of concern from handicapped]: equalizing services and pro- the earliest federal aid proposals. Federal grams, as in the case of girls’ sports under regulation has been a central issue of imple- Title IX; and adopting new procedures on mentation since 1965. Initial regulations re- the access and distribution of student rec- sulted largely from three factors already dis- ords under the Buckley Amendment. cussed: the categorical character of ESEA. the requirements of program evaluation. and the *Vast amounts of new paperwork: the Title VI civil rights provisions. Recently, how- House Committee on Education and Labor ever, additional regulations and grant condi- has noted that: tions have been attached to federal aid to education, mostly of an “across-the-board” nature The enormous amount of paperwork (thus, applying to federal assistance in general]. involved in administering federal edu- These new regulations have prompted a recent cation programs has become a major article entitled “The Federal Takeover: Should source of complaints from state and the Junior Partner Run the Firm?,” in which local participants in federal pro- the Illinois Superintendent of Schools writes: grams. One state superintendent testified that federal education pro- state and local taxes together still grams are responsible for 84% of the account for more than 90% of the dol- data burden in that state, although the lar outlay for public schools in this federal government provides only 7% nation. Yet the amount of federal regu- of the state’s total funds for education.5

62 Although it is difficult to gauge the genuine school authorities prepare an individualized extent and seriousness of problems caused by educational program for each handicapped federal regulatory efforts, the situation so con- child. It also establishes due process proce- founds the traditional notion of local control dures to guarantee the educational rights of of education that it demands close examination. handicapped students and promotes the “mainstreaming” of handicapped children.‘0 The RECENT ADDITIONS TO funding formula authorized the federal government to pay for 5% of the cost of services in the FEDERAL REGULATION first year, with the percentage increasing to a New regulations affecting elementary and permanent 40% in 1982. However, because ap- secondary education include both measures propriations have not equaled the authoriza- aimed specifically at educational institutions tion levels, the federal government is currently and across-the-board regulations which affect subsidizing only 12% of the cost to states and the broad range of federal grant recipients. An local school districts. example of the former is the federal regulation that addresses sex discrimination practices in THE POLITICS OF REGULATION education. Title IX of the Education Amend- ments of 1972 states that no person: “shall, on There is general agreement that Congress has the basis of sex, be excluded from participating been primarily responsible for most of the in, be denied the benefits of, or be subjected to recent regulatory provisions in education. discrimination under, any educational program Cronin is absolute on this point: “[T]he Con- or activity receiving federal financial assist- gress, far more than HEW, has written in the ance.“6 At the elementary and secondary level. need for dozens of new reports and regula- this act has had particularly important implications.“” Samuel Halperin, former Assistant tions for vocational, athletic, and extracurricu- Secretary of HEW, agrees, adding that grow- lar programs. For example, the provision of ing budgetary pressures in Washington have equal sports facilities and programs for girls made regulation increasingly attractive: has been a major focus of attention. Another example of a recent regulation Congressmen see themselves as hav- aimed at educational institutions is the Family ing been elected to legislate. Con- Educational Rights and Privacy Act of 1974 fronted with a problem and a sho&g (FERPA], or the Buckley Amendment.’ This act that other levels of government are concerns access to student records in the local “defaulting,” their strong tendency is schools. Specifically, it requires that schools to pass a law. Ten years ago, money permit student and parental assessment of the was Washington’s antidote for prob- accuracy of records, while at the same time lems. Now, the new fiscal realities.. limiting disclosure of records to others. mean that Congress provides fewer An example of an across-the-board require- dollars. Still determined to legislate ment affecting federal grant recipients is the against problems, Congress uses sticks Rehabilitation Services Act of 1973, which re- instead of carrots.‘2 quires that federal grant recipients provide increased access to the handicapped. Section The crucial Congressional role in educational 504 of the act states that “no otherwise quali- regulation can be seen in the legislative his- fied individual shall be excluded from tories of these laws. Title IX of the Education participation in. any program or activity re- Amendments of 1972,‘3 which prohibits sex ceiving federal financial assistance.“8 This act discrimination in educational admissions, facil- has been supplemented in elementary and ities, and practices. was authored by Rep. secondary education by the Education for All Edith Green (D-OR) following Congressional Handicapped Children Act of 1975.9 Among hearings that indicated sex discrimination other things, this law requires that participating problems in education.” For the most part, states provide a “free and appropriate educa- education groups considered the issue of rela- tion” to all handicapped children and that local tively minor importance.‘s In fact, apart from

63 its effect on college admissions, the implica- lative history and broad language of tions of Title IX were overlooked by Congress the provision prevented federal agen- as well as the interest groups. As Fishel and cies from developing regulations and Pottker explain: required Congress to further define its intent in a 1974 amendment to the Re- Without any organized opposition, habilitation Services Act.20 and with Green pressing hard for adoption, the conference committee Even the Education for AI1 Handicapped Chil- quickly adopted Title IX without giving dren Act, which was four years in the making much consideration to its eventual and the object of a massive lobbying campaign impact.” by special educators and parents of handicapped children, was passed by Congress over It was treated mainly as a symbolic gesture, strong Presidential objections. The original leaving legislative intent undefined: impetus of the act was twofold. First. it was designed to assist handicapped children whose When Congress passed Title IX in needs were not being met by the states. Con- 1972, it was voting for a general princi- gress was concerned with reports that half of ple of equality; the specific implica- the nation’s handicapped children were receiv- tions of the law were understood by ing an inadequate education and that many few members of Congress., Con- were receiving no education at a1L2 Secondly, gress made no attempt to provide a it was designed to relieve the fiscal pressures clear and complete definition of what on states and localities resulting from court constituted sex discrimination in edu- cases dealing with the education of handi- cation. As a result, the real public de- capped children. 22 The act provided grants to bate on the issues involved in eliminat- support the education of the handicapped, ing sex discrimination followed, rather while drawing heavily on the legal decisions than preceded, the passage of the for objectives and procedures in the law.23 law.” The Ford Administration opposed the legislation for two reasons. It first of all believed Hasty Congressional consideration charac- the provision of education to the handicapped terized other regulatory enactments as well. to be a state and local responsibility.24 Second- FERPA was introduced and adopted as a floor ly, it opposed the large authorizations pro- amendment to the General Education Provi- posed in the bill-over $2 billion in the Sen- sions Act of 1974 by Sen. James Buckley (R- ate by 1979. almost $4 billion in the House. A NY). Stimulus for the law came from studies veto was threatened. In response, the legisla- and court cases documenting recordkeeping tion’s authorizations were drastically reduced abuses in elementary and secondary educa- (to $100 million in 19761, and the federal role tion.‘a However, the amendment “had not was altered from relieving the state-local fiscal been the subject of Congressional hearings,” burden to providing an “assist.” Despite the and “professional educators were not involved concern about the regulatory aspects of the in drafting the original legislation or even legislation, which were retained despite the aware of its existence.“‘9 It originally proved massive cuts in authorizations, the bill passed so defective that it was amended by Congress Congress by huge majorities and was reluctant- within a matter of months. ly signed by President Ford. Section 504 of the Rehobilitotion Act, which Thus, Congress has clearly dominated in the prohibits discrimination against the handi- formulation of regulatory policy in education. capped by federal grant recipients, presents Frequently, the legislation to emerge from Con- another example. gress has been vaguely worded and hastily considered, leaving the bureaucracy with the [It1 was subjected to no public hear- difficult task of interpreting and implementing ings and few floor debates of any sub- the law. Executive Branch agencies are often stance.. Moreover the scanty legis- confronted by strong Congressional statements

64 of lofty purpose. with little guidance for weigh- the Congress has not been altogether impervi- ing costs and benefits in implementing them. In ous to this critical political feedback. Various the case of FERPA. the Privacy Commission Re- measures to address regulatory problems have port observed that: been advocated or advanced. The Buckley Amendment underwent some alteration. and Because there had been no national Title IX was nearly modified by Congress as debate or public hearings on the meas- well. Education block grant proposals con- ure, and only a minimum of Congres- tinue to be offered as solutions to federal regu- sional debate, neither the affected lation, although they have fared poorly in parties,. nor the Department of Congressz8 Health, Education, and Welfare, which More importantly, these critiques of federal had to develop regulations to imple- involvement have influenced the reauthoriza- ment the act, received much guidance tion of federal aid. To date, fundamental on the manner in which the act should changes in programs and regulations have not be interpreted.25 been made, but the Congress has shown increased sensitivity to regulatory problems. The same was true of Title IX: Hearings were held by the House Education Subcommittee on Paperwork Problems in Fed- Because of the absence of an exten- eral Aid.** As the Committee report observed: sive legislative history, exactly what Congress had intended when it passed The committee has uncovered in- the law was unclear in many areas. stances of inefficient, duplicative, and Because of the absence of any kind of useless federal data collection which consensus, DHEW policymakers felt can be remedied without harming free to decide issues as they thought, the integrity of federal data collec- best from legal and policy perspec- tion.30 tive.xz6 The 95th Congress passed several provisions for reducing federal paperwork requirements. The failure of Congress to weigh the trade-offs such as allowing a single state plan for all edu- inherent in regulatory provisions may not cation programs.31 In April 1980, the Depart- be corrected in the agency charged with en- ment of Education issued general regulations forcement. Rochelle Stanfield suggests that this that apply to all direct grant and state-admin- has been the case with regulations on the han- istered education programs. The new regula- dicapped: tions seek to consolidate and simplify more than 1,000 separate program regulations and [The] head of the technical assist- definitions, many with differing requirements, ance unit of the [HEW] Office of into one set of regulations. Although these ac- Civil Rights. argues that. the costs tions only begin to address the regulatory is- [of the section 504 regulations] are ir- sue, they do suggest a potential for response. relevant. because basic civil rights are involved. His colleague. who A FEDERAL DEPARTMENT OF wrote Sec. 504 regulations added: EDUCATION “Someone’s rights do not depend upon someone else’s ability to pay. It is a In 1975, as a Presidential candidate, Jimmy matter of the right to participate in Carter promised to create a separate depart- American society.“2’ ment of education to bring more visibility to educational issues and better coordination The regulatory measures have aroused consid- among federal education programs. Carter’s erable concern among state and local education pledge helped to earn him the first NEA Presi- officials, as the comments of State Superin- dential endorsement in history. Rather than tendent Cronin, noted earlier. make clear, and uniting the education community, however. the

65 reorganization proposal only served to widen programs were scattered across a number of existing divisions-between the traditional pro- different federal agencies and departments, fessionally oriented NEA and the labor- coordination was difficult to achieve. More- oriented American Federation of Teachers over, they argued, the organization of educa- (AFT], between the elementary and secondary tion programs within HEW was inefficient. education groups and the higher education Most authority for administering federal edu- groups. between public school supporters and cation programs was vested in the Office of the private or parochial school supporters. and Commissioner of Education, which was organi- among the multitude of organizations that zationally subordinate to the feeble post of represent a particular clientele group [such as Assistant Secretary for Education in HEW. handicapped children or ethnic minorities] On the other hand, some opponents of the and compete for a limited education budget. proposal within the education community ar- The AFT opposed a separate department as gued that what strength education did have did the National Catholic Education Associa- rested on its coalition with labor and civil tion, several higher education groups and rights groups. They feared that if education was prominent university presidents. and a variety removed from HEW that coalition would suf- of labor and civil rights groups. The NEA. on fer, leaving education in a weaker position. the other hand, led a broad coalition of While admitting to the lack of coordination groups. including five other major elementary among federal education programs scattered and secondary education groups.32 several throughout the more than 40 federal agencies, major higher education groups, many of the the coalition against the department believed advocates for special categories of children, there were less drastic ways to achieve coordi- and some labor groups such as the United nation and reduce duplication, such as enhanc- Auto Workers. ing the authority of the already existing coor- The education community agreed that educa- dinative mechanism, the Federal Interagency tion suffered from low visibility within the Committee on Education. Finally, they argued bureaucracy, that education programs were that rather than increasing the budget for poorly coordinated, and that funding levels education, passage of a new department would were inadequate. The source of contention substitute for increased funding of education was, and still is, how these problems can be programs. I alleviated.33 Proponents of the reorganization Vigorous opposition to the department also argued that a cabinet-level secretary would came from various constituencies of programs give education greater prestige, and ultimately slated for inclusion. Veterans opposed the in- a larger budget.34 In their view, the inclusion clusion of the large Veterans Administration of education within HEW resulted in execssive student assistance program in the department; cuts because education represented an abnor- civil rights groups opposed placing Head Start mally large proportion of the department’s and civil rights enforcement personnel in the “controllable” expenditures: department; Indian groups opposed the addition of Indian education programs; many sci- The allocation of resources that oc- ence and higher education representatives curs within a department where un- opposed the addition of NSF programs; and controllable increases amount to $15 nutritional groups opposed the inclusion of to $20 billion annually is unfavorable child nutrition programs. All feared the disrup- to a fair consideration of the education tion of traditional relationships in a new or- budget, most of which is controllable ganizational environment and the subjection of and therefore bears the brunt of down- their priorities to those of the new depart- ward budgetary pressures.35 menLz6 Within the Carter Administration, support In addition, many argued that an education was uneven. For instance, Joseph A. Califano. department represented a more rational ap- then Secretary of HEW, was adamant in his proach to the administration of federal educa- opposition to the plan and argued that it would tion programs. Because education and related eliminate any possibility of coordinating edu-

66 cation programs with those in health and wel- on a series of controversial amendments per- fare. Several of the agencies with programs mitting prayers in the schools, banning busing, that might have been moved to the new depart- and prohibiting affirmative-action quotas in a ment, such as the National Science Foundation, last-ditch effort to prevent passage. Amid great also voiced their opposition to the proposal. uncertainty among interested parties, the bill On the other hand, many top education offi- finally passed the full House by a margin of cials, the Office of Management and Budget only four votes. Following more procedural (OMB), and the White House Staff favored it. delays, final legislation was approved in Con- Given the lack of unanimity in the Executive ference where the controversial House amend- Branch, without President Carter’s active sup- ments were quietly dropped.s9 port it is likely that the proposal would have As finally passed, the new Education Depart- failed as did the 130 previous Congressional ment (ED] consists of the programs formerly proposals for a separate department. housed in the education division of HEW as In Congress, the proposal gained more favor well as HEW’s Rehabilitation Services Office, in the Senate than the House. A bill that would and the education and vocational rehabilitation have included many of the disputed programs responsibilities of HEW’s Office of Civil Rights. was pushed by Sen. Abraham Ribicoff [D-CT] In addition, the Defense Department’s over- in 1978. Although several of these programs. seas dependent schools, several science educa- including child nutrition and Indian education, tion programs from the National Science Foun- were dropped from the bill in floor considera- dation, and the college housing loans programs tion, the legislation passed the Senate. How- from the Housing and Urban Development De- ever, it died in the House due to insufficient partment were transferred to ED. Absent from time at the close of the session.*’ the new department are the Head Start pro- By the time the legislation was reintroduced gram. veterans education, Indian education, in spring 1979, the opposing sides had readied child nutrition programs, and the major educa- themselves for a long and intense battle. A tion programs of the Labor Department. scaled-down version of the bill again was Early signals indicate that the struggle to passed in the Senate, as the fight in the House implement the new department will prove as intensified. House opponents argued vocifer- difficult as its passage. Secretary Shirley M. ously that a new department would not im- Hufstedler must attempt to reconaruct the prove administrative problems, especially fragile coalition of interests that was ripped since the bill now excluded most of the pro- apart in the bitter enactment battle. According grams outside of HEW. Conservatives main- to one commentator. “months of heated lobby- tained that its creation would result in in- ing on the measure split some longtime allies creased federal regulation and control of and united some traditional enemies.“40 Many education, despite the supposed safeguards in of these groups and much of the education the bill. According to one report. “Opponents bureaucracy are already alienated because are primarily concerned that creation of the Hufstedler chose a top management team made department would result in complete federal up of many noneducators and aIso failed to elimination of traditionally independent local solicit as much input from the lobbyists and schools.“38 The Carter Administration, laying bureaucrats as they would have liked.” Addi- aside intangible issues like visibility and tionally, after only a few months on the job. prestige, focused its arguments on the manage- she invoked the wrath of several key members ment question. OMB Director lames T. Mc- of Congress by ignoring their disapproval of Intyre. ]r., forcefully argued before Congress regulations for four education programs. In a that establishment of a separate department strongly worded letter urging the Secretary to would allow increased savings in administra- reconsider, Rep. Carl Perkins [D-KY) stated tive costs, reductions in personnel, and the that, “We can think of no more arrogant ccmrsa elimination of several layers in the bureau- of action for the Administration to take. We cracy. Even then, the bill cleared the House can also think of no more irresponsible action Government Operations Committee by a single which you and your department can take.“‘2 vote, and on the House floor, opponents tacked Moreover, President Ronald Reagan promised

67 during his election campaign to work for the facing a Carter veto, an Administration-backed elimination of ED should he he elected. If expansion of college student grants and loans these early signs are a clue to the future, the to include middle class families was passed in department may find itself in a difficult politi- the waning moments of the 95th Congress.‘* cal position in an environment increasingly Supporters of the tuition tax credits included hostile to social programs in general and edu- both Republicans and Democrats, the latter cation programs in particular. being largely parochial school proponents:5 Catholic educators, faced with declining paro- TUITION TAX CREDITS chial school enrollments, lobbied vigorously for the measure, arguing that the very existence In 1978, Congress came close to approving a of their parochial school system was at stake. program of federal tuition tax credits that They argued that tax credits would promote would have applied to both postsecondary and educational diversity and competition by halt- elementary and secondary education. The pro- ing the steady decline in the number of private posal, if approved, would have provided a schools. Additionally, the credits have tre- credit against the federal income tax for every mendous political appeal since they would pro- full-time student enrolled in any eligible educa- vide much needed tax relief to the middle class. tional institution. Bills to provide tuition tax However. according to its defenders, the credit relief to college students and their parents had would not work to the advantage of only the passed the Senate three times before, but each middle class, because it would allow many time they were blocked in the House Ways more minority group members to attend non- and Means Committee.43 What was new in 1978 government schools. Finally, by not requiring was the extension of the bill’s benefits to new bureaucracies or paperwork, it was ar- parents of elementary and secondary students. gued, tax credits would not contribute to If passed, the legislation would have repre- governmental growth. As Sen. Packwood (R- sented a major new federal financial commit- OR), a chief sponsor of the legislation, wrote: ment to education. Supporters are expected to continue their struggle in the 1980s. Because an Stripped of the veneer, the sole issue elementary and secondary education dredit is a question of philosophy: Should we would provide an incentive for more parents leave the choice [of educational a&is- to send their children to private schools, the tancel to the individual, given the sim- tax credit has tremendous implications for the ple incentive on the income tax or balance between public and private education. should we leave the decision to hu- In 1978. a Congressional election year domi- reaucrats with the maze of regulations nated by “Proposition 13 tax-cutting fever,” and forms that come with direct gov- support for tuition tax credits grew among ernment grants?” House members. A bill extending benefits to both private school students and postsecondary Opponents of the tax credit include many students was passed by the House in June of liberal Democrats as well as many members of that year. The bill would have allowed fami- Congress who oppose parochial school aid. In lies of private school students to deduct a maxi- the past, some fiscal conservatives have also mum of $50 of their tuition costs from their opposed the tax credit concept as an enlarge- federal income tax, with the limit rising to ment of federal involvement in education. Puh- $100 by 1979. College credits were once again lit school supporters working through the Na- passed by the Senate, but a major lobbying tional Coalition to Save Public Education, a effort by the Carter Administration and by the coalition of some 40 elementary and secondary, public school lobby blocked the elementary labor, civil rights, and other organizations, and secondary school proposal in that cham- mounted a late-starting but massive lobbying ber. A conference committee compromise effort during the 1978 legislative struggle. They failed when the House voted down the legisla- argued that tuition credits would undermine tion because it lacked the elementary and the public schools by subsidizing middle class secondary credits. With any form of tax credit and white flight from the schools, while adding

68 to the number of substandard private schools, First Amendment of the Constitution, especially those established to avoid integra- and destroy the diversity and genius of tion. Moreover, they argued, that like nearly our system of public education.“’ all tax credits the benefits would accrue to the middle and upper classes, rather than the needy, and therefore would represent a dra- On the advice of HEW, Treasury, and OMB of- matic shift in federal school aid away from ficials, President Carter opposed the enactment equalizing opportunity and toward general as- of tax credits at any level of education. His sistance. Another concern was the cost of the threatened veto was an important obstacle to measure. which the Congressional Budget Of- passage. fice estimated would reach $1.797 billion in Despite the 1978 failure of the bill, support three years. Opponents disputed claims that the for tuition tax credits and other forms of pri- credit would not increase bureaucracy and vate educational assistance is still alive. Sen. paperwork. pointing to the need for certifica- Daniel P. Moynihan (D-NY] attempted in 1980 tion of private school students qualifying for to attach an amendment to the “Higher Educa- the credit. Finally, opponents of the measure tion .Reauthorization Bill” that would have ex- argued that it constituted a violation of the tended eligibility for the Basic Educational Op- Constitutional separation of church and state, portunity Grants to students in private an issue on which the Supreme Court has yet elementary and secondary schools. The Sen- to rule definitively. Se”. Ernest F. Hollings ate, however, rejected the amendment by a (D-SC) summed up the arguments of the op- solid margin despite Moynihan’s argument that ponents this way: his proposal differed from the 1978 bill by focusing benefits on families with incomes of Careful study convinced ma that that less than 5~0,000. proposal would turn our nation’s edu- In the 198os, the issue of tuition tax credits cation policy on its head, benefit a is likely to remain on the agenda, especially if few at the expense of many, prolifer- disenchantment with the, public schools and ate substandard segregation academies, with increased taxes continues to grow. What add a sea of red ink to the federal defi- form the debate will take is unclear, but it is cit, violate the clear meaning of the certain to remain highly charged. j

‘P.L. 93.389, as amended by P.L. 93.568. FOOTNOTES 0P.L. 93.112. ‘P.L. 94.142. ‘See. far instance: Nalional Institute of Education. Com- Wew York Times, February 15. 1978. p. A-31. pensatory Education Study: A Final Report from the No- “Cronin, op. cit.. p. 4. tionnl Instifufe of Educofion. Washington, DC, U.S. Gov- ‘*Samuel Haloerin. “Federal Takeover. State Default. Or a ernment Printing Office, 19’78; James J. Vanecko and Family Problem?.” in Halperin. ed.. op. cit.. p, 19. Nancy L. Ames, Who Benefits from Federal Education ‘aFor a more extended discussion of Title IX. see Volume Dollars?. Cambridge, MA, Abt Books. no date: Burnes, VI of this report. The Evolution of o Problematic Portner- op. cit.: and Robert Goettel. “Federal Assistance to Na- ship: The Feds ond Higher Ed. tional Target Groups: The ESEA Title I Experience,” in “U.S. House of Represenfatives. Hearings Before the Michael Timpane. ed.. The Federal Interest in Financing House Special Subcommiftee on Education. Committee Schooling, Cambridge. MA, Ballinger. 1979. pp. 1X3-208. on Educofion ond Labor, Discrimination Agains Women. “Albert L. Alford. “The Education Amendments of 1978,” 91st Gong., 2nd Sess. (1979). American Education, 15, March 1979, pp. 6-14. See also ‘IEdith K. Masher. Anne H. Hastings. Jennings L. Wagon- David G. Savage. Education Lows of 1978. Arlington. VA, er, Jr., Pursuing Equal Educational Opportunity: School National School Public Relations Association. 1978. Politics and the New Activists, New York, NY, ERIC “Joseph Cumin. “The Federal Takeover: Should the Junior Clearinghouse on Urban Education, 1979, p. ‘21. Partner Run the Firm?.” in Samuel Halperin, ed., Federol- “Andrew Fishel and Janice Pottker. National Politics and ism at the Crossroads: Improving Educational Policy- Sex Discriminolion in Education. Lexington. MA, D.C. making, Washington. DC, Institute for Educational Lead- Heath and Co.. 19%‘. p. 191. ership, 1976. pp. 2-3. “Ibid., p. 193. ‘New York Times. January 39, 1978, p. 1. “Russell Sage Foundation. Guidelines for the Collection. rHouse Committee on Education and Labor, Excerpt of o Maintenance, ond Dissemination of Pupil Records, Report Report on the Educational Amendments of 1978, 95th of a Conference on the Ethical and Legal Aspects of Gong.. 2nd Sess. 119781, e. 134. School Record Keeping. June 12.14. 1972: National Com- 4.L. 92-318, mittee far Citizens in Education, Children, Parents, and School Records, 1974. edition). Washington, DC, February 28. 1978. p. 52564. ‘*From “Personal Privacy in an Information Society: The a6Bill Peterson, “Education Fight: ‘Turf’ Politics of Reor- Report of the Privacy Protection Study Commission.” ganization,” Washington Post, january 17.1978. p. A-Z. reprinted in U.S. House of Representatives. Hearings Be- 3Warrison Donnelly. “Education Department Opponents fore the Subcommittee on Elementary. Secondary, and Force Bill Off House Schedule,” Congressional Quarterly Vocational Education of the Committee on Education and Weekly Reports, Washington, DC. October 7, 1978, p. 2752. Labor on H.R. 15, Part 9: Family Educational Rights and 3Ybid. Privacy Act of 1974. 95th Gong.. 1st Sass. (19771, pp. 130. ‘5ee Rochelle Stanfield. “Getting the E Out of HEW-The 131. Trauma Has Only lust Begun.” National Journal. Washing- 20Advisory Commission on Intergovernmental Relations. ton, DC, October 6, 1979. pp. 1649-1651: Rochelle Stanfield, Categorical Grants: Their Role and Design. Report A-52. “They’ve Taken the E Out of HEW-But Its New Home Washington, DC, U.S. Government Printing Office, 1978. Isn’t Ready Yet,” Notional Journal, Washington, DC. p. 237. March 1. 1980. pp. 352.356; and Harrison Donnelly, “Edu- ~‘Congressionol Quarterly Almanac, 1975. Washington, DC. cation Department Wins Final Approval,” Congressional Congressional Quarterly Service, 1976. p. 651. Quarterly Weekly Reports, Washington. DC, September ‘zSee above section entitled “Other Eoual Protection 29.1979, p. 2112. Issues.” ‘%tanfield. “Getting the E Out of HEW.” op. cit., p. 1649. “JoAnn Englehardt. “The Education of All Handicapped “See Christopher Connell. “Hufstedler at the Wheel,” Children Act: Opening the Schoolhouse Door.” New York Change, 12. April 1980, pp. 40-41, and Samuel Halperin. University Review of Low and Social Change, 6, Winter “The Department of Education: Last hut Not Least,”

--~,9m -. “~r. 46~--. Change, 11, November-December 1979. pp. 35.37. z’Congressional Quarterly Almanac, 1975. op. cit.. p. 653 IThe complete letter is reprinted in Education Times, Illbid. )une 16,1980, p. 1. 2”Fishel and Pottker. op. cit., pp. 197. 115. “See Congressional Quarterly. Congress and the Notion, “Rochelle Stanfield. “Brinninn the World to the Disabled- Volume 11. op. cit., p. 72. The Feds Start to Get To&h?’ National lournal, Washing- “See “Tuition Tax Credit Fails Under Veto Threat.” Con- ton. DC, February IS. 1978. p. 273. gressional Quarterly Almanac. 1978. Washington, DC. *‘A recent education block grant amendment offered by Congressional Quarterly Service, 1979, pp. 245.256. Rep. John Ashhrook (R-OH) failed in the House by a vote 45Rochelle Stanfield. “Education Report: The Taxpayers of 79.290. Notably. however. such proposals would not Revolt. Education Aid for Everybody?” Notional Journal, have much effect on across-the-hoard regulations. Washington. DC. April 1. 1978. pp. 509.514. Senator Robert *W.S. House of Representatives. Hearings before the Sub- Packwood. “The Accessible Dream: Financing Education- committee on Elementary. Secondary, and Vocational al Needs.” Commonsense. 1, Summer 1978. pp. 39.62. Education of the Committee on Education and Labor “Bob Packwood. “Tuition Tax Credits: A Philosophical on H.R. 15. Part 2: Paperwork Problems in Elementary Question,” letter to the Washington Post, April 27, 19%. and Secondary Education, 95th Gong.. 1st Sess. (1977). “Ernest F. Hollings, “The Case Against Tuition Tax Cred- aOCommittee on Education and Labor. op. cit.. p. 135. its.” Phi Delta Koppon. 60, December 1978, p. 277. For a “Alford. op. cit., p, 11 and Savage, op. cit.. p. 112. fuller treatment of the pros and cons of tuition tax credits. ITogether with the NEA. the American Association of see also: Daniel Patrick Moynihan, “The Case for Tuition School Administrators, the Council of Chief State School Tax Credits.” Phi Delta Koppan. 60, December 1978, pp. Officers, the National Association of State Boards of Edu- 274-276; Rochelle Stanfield, “The Taxpayers’ Revolt. Part cation, the National Congress of Parents and Teachers, II-Education Aid for Everybody?” Notional Journal. and the National School Boards Association are known Washington. DC. April 1, 1978, pp. 509.514: Rochelle Stan- as the “Big Six.” field. “Political Maneuvering Over Tuition Tax Credits.” %ee Rochelle Stanfield. “There’s a Lesson to he Learned National Journal. Washington. DC, luly 22. 1978. pp. 1157. Over a Department of Education,” National Journal. 1159: Albert Shanker, “Tuition Tax Bill Must Be De- Washington. DC, ]uly 23, 1977, pp. 1149.1153. feated” [weekly advertisement of the AFTI, New York “Harrison Donnelly. “Separate Education Department Times, March 5. 1978: David W. Breneman and Susan C. Proposed.” Congressional Quarterly Weekly Reports, Nelson, “Education and Training,” in loseph A. Pechman, April 22. 1978, p, 990. ed.. Setting Notional Priorities: Agenda for the 1980s. 3”Rufus Miles. Jr., quoted in Congressional Record (daily Washington, DC, Brookings Institution. 1980. pp. 217.220.