Volume I 

Volume II 

Volume 111 

Volume IV 

Volume V 

Volume VI 

Volume VII 

Volume V//l 

Volume IX 

Volume X 

YlllimiXl 

THE FEDERAL ROLE IN THE FEDERAL SYSTEM: 

THE DYNAMICS OF GROWTH 

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 

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 

Public Assistance: The Growth of a Federal Function 

Reducing Unemployment: intergovernmental Dimensions of a National 

Problem 

intergovernmentaiizing the Classroom: Federal involvement in Eiementary and Secondary Education 

The Evolution of a Problematic Partnership: The Feds and Higher Ed 

Protecting the Environment: Politics, Pollution, and Federal Policy 

Federal Involvement in Libraries 

The Federal Role in Local Fire Protection 

An Agenda for American Federalism: Restoring Confidence and Competence 

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 

Hearings 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 

T he Advisory Commission on Intergovernme&l Relations (ACIR] was established by 

Public Law 380, which was passed by the first 

session of the 86th Congress and approved by 

the President on September 24, 1959. Section 2 

of the act sets forth the following declaration 

of purpose and specific responsibilities for the 

Commission: 

Sec. 2. Because the complexity of 

modern life intensifies the need in a 

federal form of government for the 

fullest cooperation and coordination 

of activities between the levels of government, and because population 

growth and scientific developments 

portend an increasingly complex society in future years, it is essential that 

an appropriate agency be established 

to give continuing attention to intergovernmental problems. 

It is intended that the Commission, 

in performance of its duties, will: 

(I) bring together representatives of 

the federal. state, and local governments for the consideration of common problems. 

(5) encourage discussion and study 

at an early stage of emerging public 

problems that are likely to require intergovernmental cooperation. 

(6) recommend, 

Foreword 

within the framework of the Constitution, the most desirable allocation of governmental 

functions, responsibilities, and revenues among the several levels of 

government.. 

Pursuant to its statutory responsibilities, the 

Commission has from time to time been requested by the Congress or the President to 

examine particular problems impeding the effectiveness of the federal system. The 1976 renewal legislation for General Revenue Sharing, 

Public Law 94-488, mandated in Section 145 

that the Commission: 

study and evaluate the American 

federal fiscal system in terms of the 

allocation and coordination of public 

resources among federal, state, and 

local governments, including, but not 

limited to, a study and evaluation of: 

(1) the allocation and coordination of 

taxing and spending authorities between levels of government. including 

a comparison of other federal government systems. (5) forces likely to affect the nature of the American federal system in the short-term and longterm future and possible adjustments 

to such system, if any, which may be 

desirable, in light of future developments. 
The study, The Federal Role in the Federal 

System: The Dynamics of Growth, of which the 

present volume is one component, is part of the 

Commission’s response to this mandate. Staff 

were directed to: (a] examine the present role 

of the federal government in the American federal system: (b] review theoretical perspectives 

on American federalism. the assignment of 

functions. and governmental growth; and (c) 

identify historical and political patterns in the 

development and expansion of national governmental domestic activities. This case study 

on the federal role in elementary and secondary education is one of seven prepared by 

Commission staff pursuant to this assignment. 

Abraham D. Beame 

Chairman 

iv 
Acknowledgments 

T’ his volume was prepared by the governmental 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 Commission staff, especially David R. Beam, 

project manager, and Cynthia Cates Colella, 

analyst, reviewed the manuscript and provided 

helpful suggestions. Delores Dawson and Kathleen M. Behringer valiantly performed the 

secretarial tasks involved. 

Special thanks go to the following scholars 

who reviewed and commented on a preliminary 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 .............................. 

The Growth of Federal Involvement ......................... 

Regulations and the Courts ................................ 

Chapter 2. Creation of a Federal Role in Education-The Early 

Phases, 1785-1940 .................................. 

The Ordinances of 1785 and 1787 and the Early Federal 

LandGrants ........................................... 

Federal Aid to Education in the Reconstruction Era ............ 

The Federal Department of Education ....................... 

The Hoar Bill ............................................ 

The Land Grant Proposals ................................. 

Federal Cash Grants for Education .......................... 

Federal Aid to Education, “The First Phase” .................. 

Federal Aid in the Early 20th Century ....................... 

Chapter 3. The Contemporary Period: Categorical Assistance and 

The Drive for General Aid .......................... 

Impact Aid .............................................. 

Federal Aid for School Construction ......................... 

The National Defense Education Act: A New Program of 

Specialized Federal Assistance ........................... 

Federal Aid and Presidential Politics, 1959-60 ................. 

More Years of Failure-Federal Aid Controversies. 1961-64 ..... 

Chapter 4. Passage of The Elementary and Secondary Education 

Act: The Long Awaited Triumph ..................... 

Policy Initiation .......................................... 

Congressional Passage .................................... 

Chapter 5. New Controversies and Old: The Politics of 

Implementation ................................... 

Issues in Implementing Ambiguous Law ..................... 

1 

2 

8 

11 

11 

12 

13 1 

13 

14 

15 

16 

17 

19 

21 

22 

23 

25 

26 

31 

32 

34 

37 

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. Number of School Districts, 1929.30 to 1976-77 

3. Estimated Expenditures of Public Elementary and Secondary 

Schools, by Source of Funds, 1959-60 to 1977-78 

4. Federal Funds for Selected Elementary and Secondary Education 

Programs and Related Activities, 1960.78 

5. Federal Elementary and Secondary Education Programs and Fiscal 

Year 1977 Appropriations to Date, by Major Purpose 

2 

.4 

.5 

.6 

.7 
6. Public Law 874.1950-51 and 1959-60 

7. Federal Funds for Elementary and Secondary Education, Fiscal 

Years1957.60 . . . . . . . . . . . ..~.. 

8. Funding History of Bilingual Education and State Handicapped 

Programs,1969-76 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

9. Federal Court Cases Affecting School Organization, Administration, or Programs. 1789-1971 

10. National Public Opinion Surveys Concerning General Federal 

Aid to Education, 1943-61 

11. National Public Opinion Surveys Concerning Federal Aid 

to Parochial Schools, 1938-64 

12. Proportion of Federal Aid Supporters Favoring Various 

Programs,1961 . . . . . . .._...................~............ 

13. Congressional Origins of Federal Regulations 

Charts 

1. Percent of Illiteracy in the Population, by Race: 

United States, 1870-1969 

2. Number of High School Graduates for Each 100 Persons 17 Years 

of Age: United States. 1869-70 to 1976-77 

Figures 

1. Federal Programs for Elementary and Secondary Education 

and Related Activities, 1787)1979 

2. Historical Summary of Rationales for Federal Involvement 

inEducatIon . . . . . . . . . . . . . . 

.22 

.25 

50 

.54 

.73 

73 

.73 

.76 

3 

3 

8 

80 

ix 

Chapter I 

The Scope Of Federal Involvement 

In Elementary And Secondary Education 

It used to be soid that the Minister of Education 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. ’ 

H owever exaggerated, this anecdote suggests 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 

1979, the federal government spent $6.7 billion 

on elementary. secondary, and vocational education.3 Outlays in 1980 are expected to be over 

$7.3 billion.’ These funds are provided in approximately 50 federal programs directly concerned with elementary and secondary education.s 

Equally important is the character of federal 

involvement. The federal government has assumed an activist posture in education, which 

has served to magnify the impact of its modest 

fiscal role. Most federal programs stress national purposes which Congress believes have 

been inadequately addressed by state and local 

authorities. These objectives may even he at 

odds with local priorities. There are programs 

designed to: 

l aid the economically, physically, and 

educationally disadvantaged: 

l provide auxiliary educational and social 

services; 

l promote new educational skills; 

l stimulate educational innovation: and 

l support educational research. 

In addition, these federal grant programs are 

conditioned by laws and regulations designed 

to eliminate racial and sexual discrimination 

and to promote student rights and the rights 

of the handicapped. Finally, the federal courts 

have had an important and growing influence 

on a variety of state and local educational 

practices. particularly in cases of court-ordered 

desegregation. 

THE GROWTH OF FEDERAL 

INVOLVEMENT 

Until World War II, the permanent federal 

role in elementary and secondary education 

was almost negligible. The propriety of any 

federal involvement remained an issue of contention well into the 1950s. Federal spending on 

elementary and secondary education lagged far 

behind that of most other domestic functions, 

including the less visible field of higher education. Federal spending did not reach $100 million until 1947, and the federal share of educational expenditures was less than 3% until 

1950 (see Table lj. Only in vocational education was the federal presence very significant, 

and even this did not represent a very large 

commitment of funds. 

In these years prior to significant federal involvement, American education was undergoing dramatic development and change. Illiteracy rates fell precipitously as compulsory 

public education became widespread [see 

Chart 1). The number of high school graduates 

grew steeply in return [see Chart 2):The organizational structure of education was also 

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 

‘\ 

‘. ‘\ 

60 . 

'. Black and other races' 

'. l . / 8. 

‘\ 

E ‘. 

g 

40 '. '. 

l! 

'\ 

'. 

'. 

'\ 

20. TOM '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. 
Table 2 

NUMBER OF SCHOOL OISTRICTS, 

1929.30 to 1976-77 

.schod Year School Districts' 

1929-30 -2 

1931-32 127,531 

1933-34 -2 

1935-36 -2 

1937-36 119,001 

1939-40 117,106 

1941-42 115,493 

1943-44 111,383 

1945-46 101.382 

1947-40 94.926 

1949-50 63.716 

1951-52 71,094 

1953-54 63,057 

1955-56 54,659 

1957-56 47.594 

1959-60 40,520 

1981-62 35,676 

1963-64 31,705 

1966-66 26.983 

1967-66 22.010 

1970-71 17,995 

1972-73 IS960 

1973-74 16,730 

1975-76 16,376 

1976-77 16,271 

'Includes cqerating and nonoperating district*. 

zoata not auaiwde. 

NOTE: Beginning in ,959-m includes Alaska an.3 Hawaii. 

SOURCE: vs. oeparml*nt Of Health. Education. and Welfare, National canter ‘Or Education StatiStiCI, o,gest 0, Ed". 

catlo" sta,i*,ics 197% WaShlngtO". DC. U.S. Go"er"ment 

Printing affim, 1979, p. 61. 

many school districts as had existed 30 years 

before. During the next ten years. this number 

was reduced by almost two-thirds again (see 

Table 21. Meanwhile, the state role in educational finance more than doubled between 1930 

and 1950 [see Table 1). After several years of 

stability, the state role has begun rising again 

in recent years. As both state and federal involvement have grown lately, the local share in 

funding education has fallen to less than 50% 

(see Table 3). 

Despite years of concerted efforts, a federal 

program of general aid to education was never 

enacted. When significant growth in the federal 

role occurred in the 1950s and 60% it was in the 

form of targeted or limited purpose aid for 

specific national objectives. By 1960, a categorical pattern of federal assistance was well 

established. At that time, the major federal aid 

programs were: 

. assistance to federally affected areas, or 

impact aid: $258 million; 

l vocational education: $45 million: 

*instructional equipment, National Defense Education Act: $62.7 million; and 

. auxiliary nutrition, the school lunch and 

milk programs: $305.5 million [see Table 

4J. 

The major breakthrough in federal aid to 

education. however, came in 1965 wifh the 

passage of the Elementary and Secondary Education Act (ESEA). This landmark legislation 

added several additional programs of federal 

assistance in five titles: 

Title I -Educationally deprived 

children 

Title II -School library resources 

Title III -Supplemental education centers 

Title IV -Educational research 

Title V -Strengthening state educauon 

agencies 

ESEA was largely responsible for raising the 

federal contribution to education from $1.1 billion in 1963-64 to $3.0 billion in 1967-68. This, in 

turn. increased the federal percentage of public 

education expenditures from 5% to 9% [see 

Table 3). 

Contrary to the expectations of many, the 

federal percentage of public educational expenditures did not continue to grow beyond 

this point. Since 1967, it has remained in the 8% 

to 9.5% range, varying somewhat from year to 

year. While federal expenditures have risen incrementally in dollar terms, they have only 

kept pace with inflation and state and local 

spending. Within this federal sphere. however. 

several new programs have been added. Federal aid to support the education of the handicapped began on a small scale in the early 

1960s and has since become a major federal 

program category. with outlays of $589 million 

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 

Total Public 

FBdWal 

state 

Local 

All Other 

Total Public 100.0 100.0 

Federal 4.6 5.1 

state 35.4 35.9 

LOCal 59.6 56.6 

All other .4 .4 

1659-60 1961-62 

3 15.9 3 38.7 

.7 .9 

5.6 6.7 

9.5 11.0 

.2 .l 

1963-64 1965-66 1967-66 1969-70 

(Amounts h Billions of Current Dollars) 

$ 21.6 3 26.5 $ 33.2 $ 41.0 

1.1 2.1 3.0 3.4 

8.0 9.6 12.1 15.6 

12.4 14.7 18.0 21.7 

.l .I .l .l 

(Percentage Distribution) 

100.0 100.0 100.0 100.0 

5.0 8.0 9.0 a.2 

37.2 36.3 36.5 36.6 

57.4 55.3 54.2 52.9 

.4 .4 .3 .3 

1971.72 

$ 46.3 

4.6 

18.0 

25.6 

.I 

100.0 100.0 100.0 100.0 

9.5 8.9 9.2 9.4 

37.2 41.1 43.7 44.9 

53.1 49.8 47.0 45.6 

.2 .2 .l .I 

1973-74 

$ 51.2 

5.1 

23.5 

26.5 

.I 

1975-76 1977-79 

8 71.1 $ 82.7 

6.5 7.8 

31 .I 36j I 

33.4 37.7 

.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’ 

Educationally 

Deprived Children’ 

Consolidated Programs5 

BSlngual Education 

School Assistance in Federally 

A”ected Areas 

aallic Vocational 

Edducatlo” programs6 

Education for Ihe 

Handicapped’ 

Emergency School Aids 

Follow Through 

Indian Education 

0”ice 0‘ Educalion Salarles 

and Expenditures9 

School Lunch and Milk 

Program* 

63,529 54,821 71,489 915.174 

746,904 

63,529 54.821 71.489 168.270 

258,198 282,909 334.289 409,593 506,372 656,372 648.608 568,626 596,884 810.300 

45,179 51,762 64,503 118,396 

72 246 2.616 4.918 

5.291 

250.197 271,282 370,619 399.209 514.057 519.043 

16,793 

7,437 

47,846 87,933 89.947 152.050 328,463 

10,608 92,214 196,045 204,027 265,860 

2.024 46,595 39,825 57.300 

15,694 42,046 57,862 

11,608 12,664 14,251 25,901 

305.512 366.900 411,700 421.900 

1.436.732 1.487.792 1,869,081 1.766.412 2.166.322 2,586.118 

1,049,116 

367,616 

1.170,355 1.570.388 1,460.058 1,760.814 2,129.400 

291,246 272,883 266,000 326,006 334.173 

6,192 26,010 36,354 79,502 122.545 

40,906 47.714 84,694 77.411 117.618 132,450 

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 

similar rapidity in recent years (see Table 4). 

Several additional smaller programs (such as 

environmental education) plus support for educational research and innovation and the 

Emergency School Aid program designed to assist schools undergoing the process of desegregation, round out the current federal aid to 

education effort. In Table 5, these programs are 

categorized according to five general strategies, and the level of fiscal support for each 

purpose is indicated. 

REGU~TIONS AND THE COURTS 

While the relative share of federal expenditures in education has remained constant in 

recent years, regulations and grant conditions 

attached to federal aid have become increasingly important. This process began largely 

with ESEA. Because Title I is distributed to 

about 95% of the nation’s school districts, it 

provided a vehicle for enforcement of the antidiscrimination objectives of the 1964 Civil 

Rights Act. Title VI of the Civil Rights Act proFigure 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 commodities 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, 

1 

training, and demonstrations in vocational education. 

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 recipients of federal grants-in-aid. This linkage 

with ESEA proved important in stimulating the 

desegregation of many school systems in the 

south. 

Other federal grant conditions have also hecome important. The Rehabilitation Act of 

1973 and the Education for AJJ Handicapped 

Children Act of 1975 have had major consequences for American schools. These laws have 

mandated increased educational access to the 

vices as elimination of architectural barriers 

and the “mainstreaming” of handicapped children. Despite impressive growth in federal aid 

to assist local schools in meeting these aims, 

federal funds have fallen far short of compliance costs, and the effects upon local educational procedures and priorities have been suhstantial. Federal law has also affected local 

practices dealing with access to educational 

records, through the Family Educotionol Rights 

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.) 

1970 

1972 

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. 

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. 

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 

education has grown significantly in recent 

years. The obvious example, of course. has 

been the effort made by federal courts to eliminate practices of racial segregation and discrimination in the public schools. This began 

with the Brown decision in 1954, which outlawed segregated schools, and it continues to 

be the primary subject of court interest and influence in education. Additionally. however, 

the courts have been important in: 

l religious issues-prohibiting public 

school prayers and defining relations between government and parochial schools; 

l issues of student rights-from verbal expression to dress codes: 

l curricular matters-concerning treatment 

of sexual, cultural. and political issues: 

l instructional matters-from bilingual 

education to the use of corporal punishment. 

In these areas and others. informed observers 

agree that the role of the federal courts has become an increasingly noteworthy aspect of federal involvement in education. 

FOOTNOTES 

‘Kenneth Prewilt and Sidney Verba. An Introduction to 

American Government, New York, Harper and Row. 1976. 

p. 42s. 

*Millike” Y. Bradley. 418 U.S. 717 at 741.742 (1974). 

%xecutive Office of the President. Office of Management 

and Budget, The Budget of the United Stales Government: 

Fiscal Year 1981. Washington, DC, U.S. Government Printinn Office. 1980.0. 582. 

IACIR staff estimate based on program descriptions contained in “Guide to OE-Administered Programs. Fiscal 

Year 1978.” American Education. 14 (March 19781, pp. 27. 

35; and in Executive Office of the President. Office of 

Management and Budget. Special Analyses: Budget of the 

United States Government: Fiscal Year 1979. “Special 

Analysis J: Education.” Washington. DC, U.S. Government 

Printing Office, 1978. This includes. primarily. programs 

intended for state and local education agencies. Related 

programs intended primarily for institutions of higher education are not included. 

‘OMB. The Budget: Fiscal Year 1981. op. cit., p. 431. 

10 
Chapter z 

Creation Of A Federal Role In EducationThe Early Phases, 17851940 

A lmost one hundred years of bitter controversy 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, through11 
out the 19th and 29th Centuries, education was 

highly valued as a means to social opportunity 

and advancement. 

The system of education which arose was a 

highly decentralized one. Decentralization of 

education was consciously affirmed in the assignment of governmental roles under the Constitution. By virtue of the Tenth Amendment, 

public education was recognized to be a state 

and local function, along with most other areas 

of positive governmental activity such as public 

safety, health and morals. The founders’ explicit rejection of a national university denotes 

the totality of this decentralization. Hence, governmental involvement in education in the preCivil War era was almost wholly state and 

local activity. 

The single area in which the federal government assumed significant responsibility for education was in the promotion of education in 

the western territories. National involvement 

in this area began under the Articles of Confederation, with the Land Ordinance of 1785. It 

specified that the Northwest Territories 

(bounded by the Ohio River and the Great 

Lakes), which had been ceded to the national 

government by the states, were to be surveyed 

and divided into townships of 36 sections each. 

The proceeds from the sale of one section in 

each town was to be devoted to the maintenance of local public schools. 

The Northwest Ordinance of 1787 also served 

to promote education in the territories. This ordinance established procedures for territorial 

governance. Among its varied and numerous 

provisions, it declared that: “Religion, morality and knowledge being necessary to good 

government and the happiness df mankind, 

schools and the means of education shall forever be encouraged.“2 

Land grants for education were continued 

under the Statehood Acts, beginning with the 

Ohio Enabling Act of 1802. As under the 1765 

ordinance. the proceeds of one section from 

each township was granted for the support of 

local education. Later, states received two sections or even four sections per township. In all, 

the federal government granted 98.5 million 

acres to the states for public schools.3 

The extent to which these early federal grants 

constituted a federal commitment to education 

has been a matter of some dispute. Sidney 

Tiedt ~asserts that the Northwest Ordinances, 

“affirmed [a] policy of governmental support of education.“’ However, public lands 

policy, rather than education itself, was clearly 

the central consideration of Congress. Some 

observers. therefore, believe that the promotion of education through the early land grants 

was merely incidental to the basic goal of making the west attractive to settlement: 

The advocates of federal support of 

public education have sought to rely 

on various federal actions, back to the 

Ordinance of 1785, to confirm a federal 

obligation in this field. However a review of the record shows that neither 

any separate action nor the entire collection of them together was motivated 

by a primary concern with public education as such. There were always 

other objectives for the realization of 

which education was used as a 

medium.5 

Interestingly, Gordon Lee concludes that the 

early federal land grants affecting education: 

“were not enacted in response to public pressure. Rather they were the products of farsighted statesmanship or the results of what 

was considered sound political maneuv&ring.“” 

FEDERAL AID TO EDUCATION IN 

THE RECONSTRUCTION ERA 

The real beginning of the drive for general 

aid to education came in a burst of federal activity following the Civil War. At this time, the 

federal Bureau of Education was established, 

and major proposals for federal aid were advanced in Congress in 1870. 1872, 1879. 1884. 

1666, and 1888. While all of them were directed 

mainly at conditions in the south, these bills 

ranged in scope from temporary federal assistance to a proposed national system of education. All were Congressional. and primarily 

Senate, initiatives. Each chamber of Congress 

passed a federal aid bill at least once, hut 

neither did so concurrently. Finally, after 1890 

and years of unsuccessful struggle. the issue of 

federal aid largely subsided for over two 

decades. 

Two conditions established the context of 

12 
post-Civil War education legislation. One was 

control of the government by the Republican 

Party, which was committed to an activist federal role in a number of,fields.’ This was particularly true of the “Radical” Republicans, 

who favored strong federal intervention in the 

Reconstruction era south. 

The second important influence on the federal aid debate was the post-war condition of 

the south. As Gordon Lee writes: 

At no time in the nation’s history before the 1930s has the need for federal 

support of education been so acute, as 

widespread. and as widely recognized 

as in the years immediately following 

the Civil WX.~ 

Poverty and illiteracy in the south were widespread, particularly among the newly emancipated slaves. For example, in the late 1660s. an 

estimated 42% of the south’s population was 

illiterate, including 1.6 million whites and 2.7 

million blacks.* The region lacked resources 

for dealing with these problems, and its institutions lay in ruins from the war. As a result. federal responsibilities were extensive in the 

south, even before the federal aid to education 

debate. They included military occupation. the 

establishment of federally sponsored governmental institutions, and the operation of the 

Freedmen’s Bureau, which by 1866 had assumed certain educational responsibilities in 

addition to providing food, shelter. and employment to impoverished blacks. 

THE FEDERAL DEPARTMENT OF 

EDUCATION 

An early step toward federal aid was the creation of the Federal Department of Education 

in 1867. This department was established: 

for the purpose of collecting such 

statistics and facts as shall show the 

condition and progress of education in 

the several states and territories, and 

of diffusing such information” relative 

to school administration, methodology, 

etc., as shall “promote the cause of 

education throughout the country.“‘0 

Legislation to create the department was 

introduced by Rep. James Garfield (R-OH) in 

1666. It received endorsement by the National 

Association of State and City School Superintendents and the National Education Association (NEA). Lee notes, however, that: “The interest of the press. both lay and professional. 

was minimal.“” 

The Congress was divided over the legislation. Some supporters wanted a much stronger 

bill, granting the department power to establish 

and enforce minimum national standards in 

education as a part of the Reconstruction effort. A state education group wrote soon after 

passage that: ‘I.. we fear that there are men 

in Congress who would like to erect this department into a central authority with compulsory powers. “‘2 On the other hand, there was 

considerable opposition in Congress to the creation of any federal agency dealing directly 

with educational concerns. On constitutional 

and states rights grounds, these opponents recognized no legitimate federal role in education 

whatsoever. 

Despite strong opposition, a subcabinet level 

Department of Education was established in 

1867, due to Garfield’s “ceaseless efforts” and 

Republican control of the south. President 

Johnson signed the bill “only after he had received definite assurances that centralization 

of education was not intended.“” A powerful 

attempt to kill the department the following 

year wrought major changes in it. The department was reduced to obscure bureau status in 

the Department of Interior, where it remained 

for many years. Its staff and budget were cut. 

although its functions remained the same. 

Despite these difficulties, Lee suggests that 

the education agency experience was important 

in two respects. First. it helped to “crystallize 

the sentiments of legislators and to some extent 

of educators” on the question of federal involvement in education. Secondly, it led to the 

creation of Congressional committees on education. “The importance of this development 

can hardly be overestimated.“” 

THE HOAR BILL 

The most extreme federal aid to education 

proposal was also the first to receive serious 

consideration by Congress. On February 25, 

13 
1870, Rep. George Hoar (R-MA) introduced a 

bill “to establish a national system of education.” Specifically, the bill sought to require a 

national system of general public education, to 

be operated by the states in accordance with 

federal standards. States that failed to create 

such systems were subject to direct federal intervention to correct their deficiencies. In such 

delinquent states, national authority was provided for the appointment of a federal superintendent of state schools; for the building of 

schools: for the production of textbooks; and 

for institution of a direct tax upon inhabitants, 

to be distributed according to census data on 

illiteracy. Proceeds from the sale of certain 

public lands were also to be distributed on this 

basis. 

In reporting the bill from committee, Hoar 

described its aims as follows: 

The purpose of this bill, by which it 

is for the first time sought to compel by 

national authority the establishment of 

a thorough and efficient system of public instruction throughout the whole 

country. is not to supersede, but to 

stimulate, compel, and supplement action by the state.‘5 

Its focus was clearly to address the massive illiteracy of the south. The bill sought particularly to ensure the education of blacks, but its 

federal aid provisions dealt with southern poverty as well. 

Reaction to the Hoar Bill was “of small proportions” hut “almost universally unfavorable.“‘e “Violent blasts of denunciation” were 

issued by education interests like the NEA, 

which supported unrestricted federal educational assistance instead.” Catholic opposition 

more or less established the church’s position 

toward federal assistance for the next century. 

It saw in the Hoar Bill a design “to suppress 

Catholic education, gradually extinguish Catholicism in the country. and to form one homogeneous American people after the New England evangelical type.“‘8 Aside from such organized responses. however, there was little 

public attention given the bill. Lee states that: 

The press had not yet become aware 

that the issue of federal relations to 

education was worthy of its notice. 

Most newspapers. carried no mention of either the education problem or 

the effort in Congress to alleviate it.” 

Consistent with this mainly negative reaction, 

the Hoar Bill failed utterly in the House. Hoar 

defended its Constitutionality on the basis of 

the spending power and on the guarantee of a 

republican form of government.*” He argued 

that republican government was impossible 

when, “only one-fourth of the persons who 

are growing up to assume the function of citizens will be able to read and write.“>’ Congressional opponents, however. successfully attacked the bill’s Constitutionality on the basis 

of the Tenth Amendment. They maintained that 

it was antidemocratic, over centralized, open 

to fraud. and reflected no public demand. 

The ultimate result of the bill was probably 

counterproductive to the cause of federal aid. 

although it did serve to heighten the issue’s 

salience in Congress. It acted to polarize the 

federal aid issue and to raise suspicions. As a 

result of the Hoar Bill, Catholic opposition to 

federal aid in general became adamant. The 

white south grew wary. In future proposals. aid 

proponents would be burdened by remembrance of a national system of education and 

the fear that federal aid could pose the first 

step. 

THE LAND GRANT PROPOSALS 

Two aid to education proposals were important during the remainder of the 1870s: one 

passed in the Senate and one in the House. 

Both differed sharply from the interventionist 

character of the Hoar Bill, seeking instead to 

use the revenues from public land sales for the 

benefit of education. 

One bill, introduced into the House by Rep. 

Legrand Perce (R-MS] in 1872. provided for the 

creation of a permanent national fund for education consisting of the net proceeds from the 

sale of public lands. Moneys were to be distributed to all states that provided free public 

education to children between the ages of six 

and 16. The use of these funds was limited, 

however, to the provision of teachers’ salaries, 

leaving operating and construction costs of 

education to the states. In what became a 

14 
continuing issue in education legislation, the 

bill was amended on the House floor to prohibit the withholding of federal aid from segregated schools. 

Similar legislation was introduced into the 

Senate in 1879 by Sen. Ambrose Burnside (RRI), This bill also proposed the creation of an 

educational fund composed of the proceeds 

from public land sales, and it distributed 

moneys in similar fashion. In an attempt to attract additional support, however, the Burnside 

proposal made land grant colleges eligible for 

one-third of the education grants. 

These pieces of legislation failed to arouse 

much interest from either the general public or 

organized groups such as farmers and laborers. 

Lee observes that even educators were divided 

over the issue of federal aid.22 The NEA and 

the Bureau of Education, however, supported 

the legislation fully: “The two most vehement 

champions of federal aid to common school 

education. and particularly aid through the use 

of land sale proceeds during the 1870s were the 

National Education Association and the Bureau 

of Education.“23 

The parties differed on the question of federal aid to education. but the issue was not an 

important one for them. Republican Presidents 

Grant and Hayes indicated some support for 

the concept, and Grant, moreover, supported a 

Constitutional amendment requiring that all 

states provide free. compulsory public education. For their part. the Democrats opposed 

federal aid in their 1876 party platform, reaffirming their traditional support for states 

rights and state responsibility for education. 

Other federal aid opponents included many 

educators in the northeast. which already 

possessed the nation’s best educational system 

and would not have benefited from a literacyrelated federal aid program. This region also 

had a strong private school sector that traditionally opposed federal aid. Catholic opposition to federal aid actually intensified during 

the 1870s. The church completely rejected the 

concept of federal involvement. In the case of 

the Perce Bill, there also existed Congressional 

opposition to its administrative procedures. 

which some thought to be unworkable. 

Both bills passed only in their chamber of 

origin. The Perce Bill became the only federal 

aid to education bill to pass the House of Representatives for half a century. Support from 

southern Republicans was crucial to this success. In contrast. the Burnside Bill passed the 

Senate overwhelmingly. This was due in part 

to its connection with the popular land grant 

colleges. Supporters also included many southerners, who had concluded that its benefits, 

which favored the south. outweighed their traditional regional and partisan objections to 

federal aid. 

FEDERAL CASH GRANTS 

FOR EDUCATION 

During the 188Os, the struggle for federal aid 

to education centered on the Blair Bill, which 

was introduced five times during that decade. 

It passed the Senate three times-in 1884. 1886. 

and 1888. Lee wrote that this legislation represented both “the climax of the 19th Century 

struggle to obtain federal aid,” and “the beginning of current activity in this area.“24 

The bill submitted by Sen. Henry Blair (RNH) throughout the 1880s remained in most respects the same. The federal aid provided was 

to be explicitly temporary, a ten-year program 

to meet “emergency” conditions in the south. 

In a major departure from the past, federal assistance was to be in the form of direct cash 

grants, rather than land grants or prdceeds, to 

be distributed according to state illiteracy 

rates. Also significant were the scope and number of grant requirements which conditioned 

state eligibility for federal aid. States were required to match the amount of federal assistance in their own spending on education (a 

condition which was thought to cause hardship 

for poorer southern states]. States were further required to provide: ‘I. by law, a system 

of free common schools for all of its children 

of school age, without distinction of race or 

color, either in the raising or distributing of 

school revenues or in the school facilities 

provided.“*5 

As in previous legislation, the maintenance 

of segregated schools was permitted under the 

hill for reascms of political necessity, but federal assistance was to be equitably apportioned 

between black and white schools. State reports 

were required to deal with this and other matters of expenditure and attendence. Minimum 

subjects to be taught were indicated. Finally. 

15 
aid was to be spent on school operations. It 

was not permissible in most instances to use 

federal assistance for school construction. 

According to Lee, the Blair legislation attracted “widespread” public interest, although 

he notes that: “educators were far more active 

and vocal.. while groups less directly concerned were, in sane instances, apparently 

completely disinterested.“*@ These educators 

were crucial in advancing the cause of federal 

assistance to education: “For the first time. the 

education profession, in an organized way and 

on a national scale, led the fight outside of 

Congress for federal aid.“27 This was particularly true of educators in the south, for whom 

the benefits of legislation were particularly 

great. At the urging of the Commissioner of 

Education, the NEA agreed to support direct 

appropriations in 1662, reversing its earlier endorsement of land grants. Other supporters included President Chester Arthur, who announced his support for the legislation in his 

annual messages to Congress in 1662 and 1883. 

Opponents of federal aid to education remained many, however. A sizeable number of 

educators continued to oppose the concept, and 

these continued to come largely from the nortbeast. Catholic opposition remained very strong. 

At one point, Blair labelled his opponents. 

“organs of Jesuitism,” while the Catholic Journo1 said of Blair: “a hatred of Catholicity 

[is] a concealed but powerful motor in all his 

acts.“28 While the federal aid issue was not 

central to the political parties, Democratic 

predilections were to oppose federal aid to 

education as involving questionable Constitutionality and infringing upon states’ rights. As 

President Cleveland remarked: The preservation of the partitions between proper subjects of federal and local care and regulation is 

of such importance under the Constitution.. 

that no consideration of expediency or sentiment should tempt us to enter upon doubtful 

ground.29 Several southern Democratic Governors. however, supported federal aid provided 

that it bad no federal strings. 

III Congress, party positions were weak 

enough to allow many Democratic Senators to 

vote for the legislation in 1884 and 1886. The 

House, however. exhibited “complete inactivity” over federal aid. This was due in part to 

opposition by the Speaker and parliamentary 

obstruction, but primarily it reflected southern 

opponents’ “fear of the difficulty of controlling 

more educated Negroes.“30 

FEDERAL AID TO EDUCATION, 

“THE FIRST PHASE” 

After 1890, the federal aid to education issue 

largely died out in Congress for several decades. By this time, new growth and development in the south moderated regional income 

disparities and enabled the south to deal more 

adequately with its own educational needs. As 

illiteracy rates fell, the rationale for federal 

intervention on behalf of republican government eroded. At the same time, the Republican 

Party curtailed its protective activities on behalf of blacks. 

The federal aid debate in the era before 1896 

was clearly colored by unique circumstances of 

the times. However, the events of these years 

resulted in several important consequences 

that continued to shape the campaign for federal aid in the years ahead. First, the federal 

Bureau of Education was created.31 Although 

its role was small, it served to permanently establish a degree of federal involvement in 

elementary and secondary education. The federal aid struggle also created a committed education lobby. By the 1880s. educational groups 

like the NEA bad become the principal supporters of federal aid. 

Finally, the early federal aid controversy 

aroused fundamental issues that would continue to divide Congress until the 1960s. Central 

to these was the issue of federal involvement 

itself. Opponents viewed federal aid as an unconstitutional interference in a state and local 

function, “the first step in the direction of complete national control of education.“3z As Lee 

concludes in his overview of the 1870-90 period: 

Perhaps most important of all was 

the evidence, in Congress and public 

debate, of the overpowering importance of considerations of constitutionality, states’ rights. and centralization 

or federal control. Throughout the 

period and on a nationwide scale, decided and determined opposition to 

national control of education was constantly manifested. To many, main16 
tenance of local prerogative loomed 

far larger than educational improvement; to many more, independence 

from federal control was essential to 

that improvement.33 

The federal aid to education issue aroused a 

lasting religious controversy as well. Federal 

aid proponents at the national level commonly 

supported free. compulsory education at the 

state and local levels. Segments of the religious 

community, especially the Catholic Church, believed that federal aid would upset the balance 

between public and parochial schools. Other 

advocates of private education, like the presidents of Harvard and Columbia. similarly 

viewed federal aid as a threat to private education. 

A third persistent issue to arise was race A 

primary motive for federal aid throughout the 

Reconstruction Era was to provide for the education of southern blacks. Over time, support 

for highly interventionist federal policies on 

behalf of blacks waned. From the Perce Bill on, 

political necessity demanded that federal aid 

reconcile itself to segregated school systems in 

the south. But federal aid legislation continued 

to insist that blacks and whites benefit equitably from federal assistance. 

FEDERAL AID IN THE EARLY 

20TH CENTURY 

Vocational education was the focus of aid to 

education efforts in the early years of this century. This objective was attained in 1917 with 

the passage of the Smith-Hughes Act, which established a program of federal aid to support 

agricultural, industrial, and home economics 

education at the secondary school level. Grants 

totalling $1.7 million in 1917 were made to the 

states on a matching basis, for expenditures on 

teachers’ salaries, curricular developments, 

and administrative costs in accordance with 

state plans. Spending on construction and facilities was prohibited. The Smith-Hughes Act hypassed the Office of Education and established 

the Federal Board of Vocational Education to 

administer the program.34 

Vocational education programs continued to 

grow incrementally from that point on. New 

authorizations and enactments were passed by 

Congress in 1929, 1934, 1936, 1946, 1963, and 

1968. The George-Borden Act of 1946 expanded 

vocational education programs and transferred 

administration of the programs to the U.S. Office of Education. Later enactments significantly increased federal spending on vocational education (see Table 41, reduced the early 

focus on agriculture, and increased emphasis 

on the disadvantaged.35 

Passage of the Smith-Hughes Act and the discovery of mass illiteracy during the World War 

I draft prompted revived interest in general aid 

to education. In 1919, the Smith-Towner Bill 

was introduced in Congress. It proposed creating a cabinet department of education and a 

program of federal aid intended to combat illiteracy and to promote physical education and 

the “Americanization” of immigrants.36 This 

bill and subsequent ones were endorsed by 

President Wilson, the NEA, and women’s 

groups, but such legislation never gained committee approval in Congress. After 1925. education supporters focused solely on the establishment of an education department. but this approach met with no more success. A 52-member 

National Advisory Commission on Education 

was appointed in 1929 to study the federal role 

in education. It recommended general aid to 

education in its 1931 report, but given the Depression and President Hoover’s opposition to 

the plan, no such action was taken. 

The governmental fiscal crisis created by the 

Depression turned the focus of federal aid advocates to emergency assistance. Proposals 

were made in Congress for loans or direct aid 

to schools, but little action occurred until many 

state school systems “were near collapse” in 

1934.3’ “A rush of bills” followed, and the 

House Education Committee reported a bill 

providing $75 million in relief to the schools.38 

However. concerns were expressed about 

emergency aid becoming permanent, and no 

consideration of the legislation was made by 

the full House. Many more emergency and 

permanent aid bills for the direct relief of education followed in succeeding years, but all 

failed to advance. 

A number of New Deal programs did have an 

important impact on education, however. In 

1934, Harry Hopkins of the Federal Emergency 

Relief Administration estimated that 40,000 

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 

‘See Sidney Tiedt, The Role of the Federal Government in 

Education, New York, Oxford University Press, 1966. 

p. 14. 

2John Mathews and Clarence Berdahl. eds.. Documents 

and Readings in American Government, New York. NY, 

MacMillan, 1928. p. 484. 

Tiedt. op. cit.. 1). 17. The lamest wants were made to western s&s. Aleska. alone. erece%ed approximately onefifth of this total sum. 

‘Ibid. Similarly, Gordon Lee asserts that: “[Flundamental 

commitments to the principle. of federal responsibility 

for educational activity. actually antedated the adoption of the Constitution. i.e.. The Ordinances of 1785 and 

1787.” Gordon Lee, The Struggle for Federal Aid: First 

Phase. 1879-1899, New York, Columbia University Teachers College. 1949, p. 27. 

SHarley Lutz, representing the National Association of 

Manufacturers. quoted in Tiedt. op. cit.. p. 77. 

*Lee, op. cit., p. 11. 

‘This was apparent in the passage of the Homestead Act, 

the Merrill Act, the railroad land grants. and the creation 

of the Departments of Agriculture and (temporarily] 

Education. 

‘Lee. op. cit.. p. 2. This section is based largely on Lee’s 

account. 

*Ibid.. p. 32. 

lOQuoted in ibid., p. 21. 

“Ibid.. p. 23. 

I’lbid.. pp. 26.27. 

“Ibid. -- 

‘*Ibid. 

‘*Quoted in ibid., p. 42. 

‘(Ibid., pp. 43-44. 

‘IIbid.. p, 45. “The policy of complete nonsupporf for the 

Hoar Bill. coupled with equally strong approval of less 

extreme meaS”reS.. was typical of most education 

groups.” Ibid.. p. 46. 

,aQuoted in ibid., p. 47. 

‘PIbid. 

ZoArticle IV. section 4. which reads: “The United States 

shall ,guarantee to every state a republican form of governnlen,: 

“Lee. op. cit.. p. 50. 

2zIhid.. p. 138. 

2’Ibid.. p, 64. 

*‘ibid.. p, 88. 

*IQuoted in ibid., p. 91. 

*‘Ibid.. pp. 94, 99. 

l’lbid.. p. 169. 

ZaQnoted in ibid.. p. 121. 

asQuoted in ibid,, p. 145. 

34bid.. p. 159. 

alThis later became the Office of Education. 

12Lee. op. cit.. P. 113. 

=Ibid.. b. 165. 

raThis is an indication of the low esteem in which the Office of Education was held at the time. Followine its demotion from departmental status in 1969. the of&e led 

an obscure and uncertain existence for much of its life. 

For years it was a bureau in fhe Interior Department It 

was later shifted to the Federal Security Agency, and 

finally. to the Department of Health. Education. and Welfare [HEW] when that department was created irr1953. 

350” vocational education, see Tiedt, op. cit.. pp. 23-24; 

W. Brooke Graves, American Intergovernmental Relations. New York, NY, Charles Scribner’s Sons, 1964. pp. 

595.597, 522.526: and Frank 1. Munger and Richard F. 

Fenno, Notional Politics and Federal Aid to Education, 

Syracuse. NY. Syracuse University Press, 1962. 

*‘Munga and Fenno. op. cit.. p. 5. Much of the following 

section is based on their work. 

“Ibid.. p. 6. 

3’lbid. 

3’lbid. 

18 
Chapter 3 

The Contemporary Period: 

Categorical Assistance 

And The Drive For General Aid 

W’ Ith the failure to obtain temporary federal 

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 Elementary 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. President 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 

at this time. The Democratic Party platform did 

not endorse federal aid until 1944, when it 

stated: “We favor federal aid to education administered by the states without interference 

by the federal government.“3 In contrast, the 

1940 Democratic Platform stated only that: “We 

shall continue to bring to millions of children, 

youths, and adults, the educational and economic opportunities otherwise beyond their 

reach.” For their part, the Republicans did not 

mention aid to education in contemporary platforms until 1948. 

The only federal aid program to pass at this 

time was the Lonhom Act of 1941. This provided 

federal payments in lieu of taxes to local 

school districts affected by World War II military mobilization. Funds under the act were 

available for school construction, auxiliary 

services, and nursery schools. 

When the general aid issue was raised in 

Congress in 1943, it achieved somewhat more 

success. The Hill-Thomas Bill was approved by 

the Education and Labor Committee and considered on the Senate floor. It was the first 

general aid bill to advance that far since 1890, 

but it quickly became enmeshed in racial controversy. The legislation contained an NAACP 

supported provision requiring that federal assistance be equitably divided by the states between black and white schools where segregation was maintained. However. the bill lost its 

southern support and died when an amendment was added requiring that such states 

equitably apportion their own funds between 

segregated schools in order to qualify for federal aid. The amendment was successfully opposed by the NAACP itself because it jeopardized federal assistance. 

Similar legislation was introduced into the 

Senate in 1945, hut two important developments 

significantly altered its reception. First, the 

legislation was cosponsored by Sen. Robert 

Taft of Ohio, an influential Republican. Taft 

had opposed federal aid in 1943 because he believed it would entail federal controls. He had 

argued then that, because an important goal of 

the legislation was equalization of educational 

spending, it would logically follow that recipient states should equalize their own education 

expenditures: ” certainly if the purpose of 

the federal subsidy is equalization, then we 

must necessarily impose federal regulation 

which will bring about equalization.“’ 

By 1945, Taft had altered his position. He had 

become convinced that federal aid to education 

was a necessary and useful program.5 Moreover, Munger and Fenno attribute his change, 

in part, to a belief that the Office of Education 

could be trusted not to interfere with the educational activities of state and local governments: 

The record of the federal Office of 

Education has been very good. It has 

relied almost entirely on state boards 

of education. It has a history of not 

interfering in any way with their administration and of conducting a very 

simple 0perationP 

Finally, the Thomas-Hill-Taft Bill provided essentially “flat” grants to the states, rather than 

equalizing grants. thus removing this basis for 

federal intervention.’ 

The flat grant formula reflected the NEA 

position on the distribution of federal aid because it appealed to the organization’s broad 

constituency. However, it inspired the second 

important development affecting the 1945 education legislation-a major split between the 

two largest teacher organizations. The American Federation of Teachers (AFT) promoted a 

separate bill in 1945. and again in 1947 and 1949. 

It contained a more equalizing formula, a requirement that 75% of federal aid be spent on 

teachers’ salaries, and assistance to parochial 

schools. This legislation divided the education 

community and raised the religious issue once 

agaim8 Both developments weakened support 

for federal aid. 

Despite these difficulties, the Thomas-HillTaft Bill was approved by the Senate Committee in 1946. It was reintroduced in 1947 and 

passed by the Senate in 1948. Federal aid legislation introduced in the House had not yet 

cleared the Education and Labor Committee. 

When the Senate passed the bill again in 1949, 

however, it appeared that the House might finally grant approval to a federal aid bill. Support had grown in the Democratic Party in recent years. The party platform expressed support for federal aid in 1944 and 1948. and President Truman supported it in his 1948 budget. 

20 
The World War II draft had again dramatized 

the problem of illiteracy. and the post-war 

“baby boom” was beginning to exert pressure 

on the nation’s school systems. 

However, the House Committee was much 

more divided over the federal aid issue than 

was the Senate Committee. The chairman of its 

Special Subcommittee on Federal Aid to Education, Graham Barden (D-NC], was conservative and essentially opposed to any federal aid 

proposals. “A Democrat in name only,” one 

Democratic member of this committee described hima Barden rejected the Senate proposal and introduced his own bill, eliminating 

state reports on federal aid expenditures and 

expressly prohibiting any assistance to parochial schools. This latter possibility had been left 

open to the states by the Senate bill in such 

supplementary areas as school transportation 

and textbooks. 

Possibly by design, the parochial aid provision created an uproar of controversy that 

killed the legislation. Many liberal Democrats 

from Catholic constituencies refused to support 

the bill, including the chairman of the full 

Education and Labor Committee, John Lesinski (D-MI), who called it “anti-catholic,” 

“bigotry.“‘0 Lesinski added: “It is my opinion 

that he [Barden] drew it up that way purposely 

because he didn’t want any aid to education 

and wanted to kill it.“” Monger and Fenno 

explain that: 

The controversy exploded into dramatic national headlines when Mrs. 

Eleanor Roosevelt criticized Francis 

Cardinal Spellman of New York City 

for precipitating the religious conflict 

and the Cardinal replied: “lY]our record of anti-Catholicism stands for all 

to see. .” and described her newspaper columns as “documents of discrimination, unworthy of an American 

mother.” The bill never emerged from 

the full House Committee.‘2 

Attempts to resolve the issue over the next 

two years failed as crosscutting issues effectively divided federal aid supporters. To some 

extent, the purpose of federal aid became an 

issue in itself. Distribution of aid to the states 

on a population basis weakened the rationale 

for federal involvement. Yet, some aid supporters from poor districts in the north could 

not support equalizing formulas that discounted such localized need and sent aid predominantly to the southern states. Essentially, 

however, the deep religious controversy that 

had been aroused over aid to parochial schools 

caused the greatest problems. It proved so contentious and disruptive that Congressmen 

sought to avoid the issue altogether. Thus. for 

the next ten years. Congressional attention 

turned from the question of general aid to narrower proposals. 

IMPACT Al D 

This process began in 1950 with the passage 

of two laws providing federal assistance to 

“areas affected by federal activities.” The concept, which had been established under the 

Lonhom Act of 1941, was contained in Public 

Laws 815 and 874. providing construction and 

operating grants respectively. The programs appealed to Congress in several ways. The rationale for federal involvement was very clear, 

at least in principle. Large federal installations, 

such as military bases, may add to local demand for services without contributing to the 

local tax base. Thus, even staunch wnservatives and general aid opponents have supported the program as a payment in lieu of 

taxes.l3 Moreover. impact aid has had strong 

defense overtones, since military installations 

were a prime stimulus of the program. Importantly, the act was passed during the Korean 

War. The program has also had important 

“pork barrel” aspects which have heightened 

its appeal to Congress. These have grown to the 

point that, by 1970, 385 of a total 435 Congressional districts contained schools receiving 

impact aid funds. Finally, school districts like 

the program and have fought to enlarge it. Districts which receive funds compare it to a program of general aid to education; there are virtually no federal strings attached to local use of 

the money. 

Since their initial passage, the impact aid 

laws have been popular but controversial programs. They grew rapidly through the 1950s. 

when the number of eligible school districts 

more than doubled and the amount of federal 

grant money increased six times, from almost 

21 
$30 million in 1950 to $178 in 1959 (see Table 6). 

Impact aid continued to grow rapidly throughout the next decade as expenditures reached 

over $650 million in over 4,500 school districts 

by 1970. 14 The program’s “immense political 

appeal”‘5 in Congress and among educators 

has been responsible for this growth. However, 

the program has been criticized by every President from Eisenhower to Carter, and it was 

literally embattled during the Nixon years. All 

have criticized the program’s massive distribution of funds without reference to need and its 

loose definition of federal impact. For example, a study of federal aid equalization 

found that the impact aid construction program 

“has no fiscal equalizing tendencies,” while 

the maintenance program often <‘serves as a 

large subsidy for the more wealthy.“” 

FEDERAL Al D 

FOR SCHOOL CONSTRUCTION 

Throughout the 1950s. subsequent attempts to 

achieve a major federal aid program focused 

on federal assistance for school construction. 

This was a Congressional strategy which allowed federal aid supporters to avoid the controversy and deadlock of religious issues. Unlike general aid, which might be spent on a 

variety of auxiliary educational activities, no 

one advocated including parochial schools in 

a federal construction program. This was assumed to be unconstitutional.” Moreover, 

building construction, which is necessarily a 

short-term and concrete activity, seemed to be 

an area where federal intervention would be 

unlikely to entail federal controls. 

Another factor adding to its political appeal 

was that construction aid concentrated on the 

Table 6 

most visible component of what aid supporters 

argued was an educational crisis. The post-war 

“baby boom” had created a population bulge 

that was enrolling in elementary school during 

the early 1950s. This resulted in substantial 

classroom shortages. The Office of Education 

estimated that there was a national shortage of 

370,000 classrooms in 19.54.” Responding to this 

shortage was difficult and burdensome for 

many local communities who looked for federal assistance. 

Educational interest groups at first retained 

their commitment to general aid. They accepted 

this Congressional initiative to break the federal aid deadlock only with reluctance. As 

construction aid ,became the central issue of 

the 19509, however, they reconciled their objectives with reality. No sooner was this accomplished to ,quiet the religious issue than racial 

controversy returned with a fury. Along with 

the continuing opposition of some to any program of major federal aid, division over racial 

questions succeeded in blocking Congressional 

action. 

A construction aid proposal was introduced 

in the Senate in 1949, after the failure of general aid had grown apparent. Hearings were 

then held in both the Senate and the House. 

The provision was given a boost during the 

19.52 election campaign when candidate’ Dwight 

Eisenhower endorsed federal aid for classroom 

construction during a television address.19 Upon election, however. President Eisenhower 

advocated only “Congressional study” of the 

school problem.*0 The following year. 1954. he 

proposed creation of the White House Conference on Education to further study the issue, 

and he decided to await the recommendations 

of this conference and those of the Commission 

on Intergovernmental Relations before acting. 

The Republican-controlled Congress took no 

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. Following the Supreme Court decision to outlaw 

school segregation in Brown v. Board of Educa22 
tion in 1954, the National Association of 

Colored People (NAACP) altered its position 

on federal aid. Previously, it had supported 

federal aid proposals that equitably apportioned aid between segregated schools. Now. it 

advocated that states conform to the Brown 

decision in order to qualify for aid. This was 

enough to kill the bill in the Senate where 

Committee Chairman Lister Hill [D-AL] shelved 

the legislation. 

A construction aid bill did advance in the 

House, despite delaying tactics there by another southern committee chairman, Graham 

Barden (D-NC]. Known as the Kelly Bill, this 

proposal was a compromise which added construction grants to the Administration’s loan 

program. It passed the committee in 1955 after 

an antisegregation amendment by Rep. Adam 

Clayton Powell [D-NY) was defeated. Education and labor groups, major Democratic Party 

figures, and President Eisenhower all opposed 

the Powell Amendment as au obstacle to the 

education bill. Powell argued, however. that 

the Supreme Court had fundamentally altered 

the situation for considering federal aid to 

education: 

Negro people have waited many, many 

years for this hour of democracy to 

come and they are willing to wait a 

few more years rather than see a bill 

passed which will appropriate federal 

funds to build a dual system of Jim 

Crow schools in defiance of the law.21 

Before it reached the House floor in 1956, the 

aid bill was given a surprising boost by the 

Administration’s Conference on Education, 

which supported federal aid. But the legislation 

was killed when the Powell Amendment was 

adopted on the floor. Conservative aid opponents, hoping to cripple the bill, were joined 

by liberal Republicans and “overwhelming” 

numbers of large city Democrats in supporting 

the Powell Amendment. Despite their support 

for federal aid and the pleas of Democratic 

leaders and education groups, liberals supported the amendment as a moral issue. The 

NAACP had proclaimed in that election year 

that: “Any vote against the Powell Amendment 

is a vote in favor of segregation.“z* Defeat of 

the bill was assured when the Administration 

withdrew its support of the compromise following defeat of another amendment to equalize its formula. This removed any hope of obtaining enough Republican support to offset the 

total opposition of the south, and the bill died. 

Similar legislation advanced in Congress the 

following year. President Eisenhower continued to voice support for temporary construction aid during the 1956 election, and he announced at the NEA convention in April 1957: 

“It is my firm belief that there should be federal help to provide stimulus to correct an 

emergency situation.“23 The Administration’s 

proposal again differed from that of Congressional Democrats, once more providing less 

money and a more equalizing formula. However, Department of Health, Education, and 

Welfare (HEW) Assistant Secretary Elliot 

Richardson established a compromise with the 

House Education Subcommittee, which was 

approved by a strong bipartisan majority of 

the full committee. 

The fragile coalition supporting this bill once 

again collapsed on the House floor. The Chamber of Commerce launched a successful campaign challenging the need for federal assistance. It argued that state and local governments 

were successfully dealing with their own educational needs. More importantly, the 

“marked” absence of straightforward Presidential endorsement of the compromise bill 

produced doubts of genuine Presidential support.24 Last minute maneuvers by Republican 

and Democratic leaders to assuage these doubts 

failed, and the legislation once again died, by 

a vote of 206-203. A flurry of bitter charges 

and recriminations followed. 

THE NATIONAL dEFE&E 

EDUCATION ACT, A NEW PROGRAM 

OF SPECIALIZED 

FEDERAL ASSISTANCE 

The deadlock in the struggle for educational 

assistance was broken temporarily by the 

passage of the Notional Defense Education Act 

(NDEA) in 1956. The NDEA was a large and 

multifaceted law composed of numerous programs of specialized aid, all focusing mainly on 

the improvement of math, science, and foreign 

language instruction. The bill’s success grew 

23 
out of the atmosphere of national crisis 

aroused by the successful orbit of the Soviet 

Sputnik satellite. Its programs were tailored by 

Administration and Congressional legislative 

craftsmen to ride the resulting wave of public 

concern over the nation’s education system. 

“I ask you, sir, what are we going to do about 

it?“2S This, quotes James Sundquist, was the 

opening question at President Eisenhower’s 

news conference following the Russian orbit of 

Sputnik. He notes: “The President’s response 

that day did not mention education.“26 However, upgrading the nation’s system of scientific 

education soon became the focus of policy 

response. 

Elements of what became the NDEA were in 

various stages of development when Sputnik 

occurred. Years before, President Eisenhower 

had indicated support for federal scholarships 

to increase the production of American scientists and engineers. A 1956 Library of Congress 

study urged the same, and Congressional hearings on the subject were underway at the time 

of Sputnik. At the same time, recommendations 

by the President’s Committee on Education Beyond the High School were being studied by an 

HEW task force. The task force, headed by 

Commissioner of Education Lawrence Derthick, proposed a program of high school guidance and counseling to identify talented students and a program of federal scholarships to 

aid them. State grants for the improvement of 

high school science and math instruction were 

added later. Under the guidance of HEW Secretary Marion Folsom and Assistant Secretary 

Elliot Richardson, these became the basis for 

the Administration’s response to the Sputnik 

crisis. That bill, called the “Education Development Act of 1958,” was introduced in Congress 

in January 1958. 

Meanwhile, similar proposals were being developed on Capitol Hill, where concerted efforts were underway to avoid the fatal controversies of prior federal aid legislation. Lister 

Hill (D-AL), the Chairman of the Senate Labor 

and Public Welfare Committee and an ardent 

supporter of federal aid, accepted staff advice 

that Sputnik be utilized to launch a new aid to 

education effort. National defense was made a 

rationale for the legislation, although Sundquist suggests this was rather disingenious: “In 

accepting the title ‘national defense education 

act,’ Hill observed that his colleagues would 

not dare vote against both national defense and 

education when joined in the same bill.“27 

Favored elements from the Administration’s 

forthcoming bill were joined with other Congressional proposals to form an attractive legislative package. The categorical approach to 

federal aid was adopted in order to minimize 

opposition to the hill. Hill instructed his staff 

to draft legislation which would avoid, “the 

Scylla of race and the Charybdis of religion.“28 

The Administration’s bill and the Hill-Elliot 

Bill were similar, and Congressional leaders 

worked closely with HEW in negotiating their 

differences. Both included major scholarship 

programs and other assistance for higher education, which focused loosely on stimulating 

the “defense-related” fields of math, engineering, and foreign languages. In elementary and 

secondary education, each bill authorized state 

matching grants to improve high school guidance and counseling, and each provided aid to 

states for enhancing instruction in the defenserelated fields. 

Congressional debate centered on scholarships for higher education. These were eventually replaced by loans. Beyond this, the political climate and strategy helped to minimize 

other obstacles. General aid proponeqts, like 

the NEA, were disappointed by the size and 

scope of the measure. Staunch aid opponents, 

such as Barry Goldwater, opposed the NDEA. 

They feared that it, like general aid, would 

soon lead to federal controls: “If adopted, the 

legislation will mark the inception of aid, supervision. and ultimately control of education 

in this country by federal authorities”29 Neither extreme proved successful, however, as 

the religious and racial issues were muted. 

Parochial school advocates won addition of a 

small program of loans to private schools. 

Antisegregation forces were dissuaded from 

pressing their cause on the popular and specialized education bill. Thus, skillful leadership and an atmosphere that favored action 

enabled the bill to “breeze” through both 

Houses of Congress. In the always difficult 

House, 30 southern and border Congressmen 

supported the bill, and Republicans split almost 

evenly. 

Although limited, the NDEA was an important piece of legislation. It demonstrated 

24 
Table 7 

FEDERAL FUNDS FOR ELEMENTARY AND 

SECONDARY EDUCATION, 

FISCAL YEARS 1957-60 

Fiscal Year 1957 1958 1959 1960 

Millions $128.3 $139.7 $170.7 $224.9 

SOURCE: Congressional ouarferly. congress B”d me Naho”, 

“d”me I: 1945-,964, Washington. DC. Congressional Q”arterly 

service, ,965. p. ,199. 

that, under certain circumstances, Congress 

could enact a major aid to education bill. 

Moreover, it established a new federal purpose 

in education: 

The Congress hereby finds and declares that the security of the nation 

requires the fullest development of the 

mental resources and technical skills 

of its young man and women. The 

national interest requires. that the 

federal government give assistance to 

education for programs which are important to our national defense.30 

The act also accounted for a major increase 

in federal spending on elementary and secondary education. Primarily due to the NDEA. federal spending on education (excluding impact 

aid and the school lunch and milk programs] 

rose from about $140 million before enactment 

to $225 million thereafter (see Table 7). 

Included in this package of NDEA programs 

were: 

. Title III: matching grants to public 

schools and ten-year loans to private 

schools for science, math, and foreign 

language equipment: authorization-$75 

million/year; total outlays from 1959-61 

-$109 million in grants, $2 million in 

loans: $6 million to state supervision and 

services. 

*Title V: grants to state education agencies (SEAS] for establishment and maintenance of high school programs of guidance and counseling; authorization-$15 

million/year; outlays 1959-61-$36 million. 

*Title VI: foreign language training for 

elementary and secondary school teachers; authorization-$725 million: threeyear outlays-$9.5 milliom3’ 

Also included were vocational education grants 

to states to train skilled teachers and aid to 

colleges and students to improve the training 

of elementary and secondary teachers in defense related fields. 

Senate Majority Leader Lyndon Johnson 

called the act “an historic landmark.” Sundquist agreed, 

not so much because of the specific 

provisions of the NDEA but because of 

the psychological breakthroughs it embodied. It asserted. more forcefully 

than at any time in nearly a century, a 

national interest in the quality of education that the states, communities, and 

private institutions provide.32 

FEDERAL Al D AND PRESIDENTIAL 

POLITICS, 1959-60 

School aid politics became strongly more 

partisan when considerations of general aid 

began once more in 1959. The fragile bipartisan 

compromises over construction aid in 1956 and 

1957 dissolved with the approach of the 1960 

Presidential contest. Despite this, the House 

passed a federal aid bill in 1960 for the first 

time in almost 90 years. It appeared then that 

federal aid to education might finally be enacted. But structural obstacles in Congress 

again combined with divisive issues to thwart 

the legislation. 

The process commenced immediately in 

1959. The complexion of Congress was considerably more liberal following the influx of 

northern and western Democrats in the 1958 

election. The Eisenhower Administration, on 

the other hand, assumed a much more conservative stance in its fiscal 1960 budget. Sharply 

limiting spending on new social programs, it 

proposed only a very modest program of longterm loans for school construction. 

This met immediate and total rejection by 

Congressional Democrats. who sensed an election issue at hand, and by the NEA which had 

never been fully satisfied with even a large 

25 
construction aid program. Sundquist reports 

that: 

The majority of Congressional 

Democrats had. by this time, joined in 

open alliance with the NEA.. [T]he 

NEA’s bill for a multibillion dollar 

program of aid for school construction 

and teacher salaries. was rapidly 

achieving the status of a party program 

measure among northern and western 

Democrats.33 

A $1 billion version of this bill passed the 

House Education and Labor Committee on a 

party-line vote. Supporters knew it was unacceptable to the Administration and the conservative House Rules Committee, but it served 

tactically to raise electoral interest and allow 

negotiating room.34 

Senate education supporters remained wary 

of raising religious controversy again through 

broader legislation. A construction aid bill 

passed the Senate Committee in 1959 despite 

NEA dissatisfaction. When it reached the Senate floor. Democratic leaders offered a general 

aid substitute that produced a tie vote along 

party lines. Vice President Richard Nixon was 

forced to break the tie and, thus. vote against 

teachers’ salaries in an election year. A scaledback version of the salary and construction aid 

bill was then passed by the Senate. With it 

came a new rationale for federal involvement. 

By 1960, the need for “emergency” school construction aid had lost considerable urgency. After all, education had survived for a decade 

without federal aid. Accordingly. the federal 

role in this legislation was envisioned to be a 

continuing, long-term contribution to educational improvement.35 

For practical reasons. however, the House 

Education Committee had returned to the 

emergency construction formula. Although received in partisan terms, this was able to pass 

the major procedural hurdle by a one-vote 

margin in the House Rules Committee. It subsequently became the first large-scale, aid to 

education bill to pass the House of Representatives since 1872. The Powell Amendment prohibiting aid to segregated schools was again 

attached to the legislation, but the influx of 

liberal Democrats proved sufficient to pass the 

bill regardless. Prospects for a compromise 

House-Senate conference bill appeared good 

at this point, with the House dropping the 

Powell Amendment and the Senate dropping 

teacher salaries. However, the bill died an 

unusual death when the Rules Committee reversed itself and refused to clear the legislation 

for conference. 

Presidential politics were blamed for this. 

Republicans were reluctant to have the bill 

vetoed in an election year. and the President 

gave no assurance that he would sign it. The 

NEA and some liberals. meanwhile, lost entbusiasm for a bill without teacher aid and, “preferred a campaign issue to a watered down 

bill.“36 As one Democrat complained later of 

the NEA: 

They are very disappointing. They 

want the moon. Their attitude is that 

they might as well try a big bite and go 

down fighting rather than to establish 

a new area of federal responsibility in 

a small scale reasonable way. 

They’re the worst, most ineffective 

lobby around.37 

As expected, the issue of federal aid to education did become an important issue in the 

1960 Presidential campaign. In campaign 

speeches, John Kennedy attacked Nixdn’s tiebreaking vote. Nixon defended his actions in 

the first televised Presidential debate, explaining: “When the federal government gets the 

power to pay teachers, inevitably. it will require the power to set standards and to tell 

teachers what to teach.“38 For its part, the 

NEA made clear where its sympathies lay, 

without endorsing Sen. Kennedy directly. Thus. 

the issue was clearly drawn during the election, 

although it is impossible to determine whether 

it had any importance in determining peoples’ 

Presidential choices. If it did, no popular mandate was expressed, given the extremely close 

election. Public opinion polls at the time, however, showed clear popular support for the 

general concept of federal aid.39 

MORE YEARS OF FAILUREFEDERAL AID CONTROVERSIES, 

1961-64 

There is no “end. in sight.“‘0 Thus, Mun26 
ger and Fenno concluded their study of the 

struggle for federal aid up to 1961. surveying 

the dismal past and speculating on the future. 

Rarely do cautious social scientists commit 

themselves so fully in predictions, but rarely 

have they had such strong basis for doing so. 

When the Kennedy Administration entered 

office, the hopes of federal aid supporters 

were running high, and with good reason. For 

the first time in history, federal aid to education was a top priority of the President. The 

Kennedy Administration assumed active leadership of the effort to achieve a general aid 

bill. In addition, the House had passed an aid 

to education bill the year before-for the first 

time in almost 90 years. Finally, the Rules Committee, which had been the principal institutional obstacle in 1960, had been enlarged and 

liberalized through the efforts of Congressional 

leaders and the Administration. 

The Administration submitted a permanent. 

multibillion dollar bill for salary and construction assistance that was similar to the one the 

Senate had passed in 1960. In hope of giving it 

wider appeal, the formula was broadened 

somewhat, and the bill was tied to impact aid 

renewal. The major alteration. however, was 

that aid for parochial schools was explicitly 

denied. This proved to be momentous. As the 

first Catholic President, Kennedy felt unable to 

compromise on an issue so emotionally vofatile. As Sundquist observed: “Kennedy’s Catholicism had been the single most important issue” in the campaign.41 

This provoked a bitter reaction from the 

Catholic hierarchy which sparked, in turn. a resurgence of religious controversy of great 

magnitude. The issue had been relatively quiescent during the 1959s. as long as policy centered on temporary aid for construction alone. 

The prospect of a permanent, massive infusion 

of federal aid, however, raised “the stakes. 

and the church moved rapidly to rally its political power.“42 In an attempt to head off Catholic opposition, White House aide Theodore 

Sorensen and HEW Secretary Abraham Ribicoff negotiated with church leaders on a compromise. The Administration offered to expand 

the equipment loan sections of the NDEA to 

include construction loans for parochial 

schools. However, the church became “locked 

in” to its demands for a major program of low 

interest loans for parochial schools. The vehemence of its demands and the controversy 

thus created rapidly produced a similar inflexibility among parochial aid opponents. The issue had been revived in full force. and members of Congress were barraged with “hundreds 

of thousands of constituent messages.“‘J 

This did not prevent the Senate from acting 

favorably on the bill, however. The Senate was 

traditionally the more hospitable branch for 

federal aid programs. A solid core of northern 

and western Democrats was committed to a 

federal aid bill, and Senators, in general, had 

broader religious constituencies and thus more 

flexibility on the issue. Wayne Morse (D-OR], a 

long-time federal aid supporter. skillfully 

maneuvered the public aid and expanded 

NDEA bills through the Senate, avoiding racial 

issues along the way. 

It was the House that assumed, once again, 

its classic role as graveyard to federal general 

aid legislation. The Education and Labor Commi ttee advanced the legislation over unanimous 

Republican opposition, but the Rules Committee voted to delay action until the NDEA proposal arrived. Despite its enlargement, the 

Rules Committee remained a difficult hurdle 

for aid to education measures. Republicans 

and southern Democrats. adamantly opposed to 

any general aid, comprised a near &jority, 

while federal aid supporters were deeply divided over religious issues. When the NDEA 

bill arrived, with its parochial school loans, 

the expected committee approval of general aid 

did not follow. One parochial school supporter. 

Rep. James Delaney (D-NY], refused to back 

the compromise. and it failed in committee by 

one vote. 

Far from representing simple obstruction. 

however, Sundquist suggests that the Rules 

Committee action reflected considerable pressure from Congressmen. who were reluctant to 

take a public stand on the extremely divisive 

issue: “Many members were happy to be relieved of the responsibility of recording their 

votes on the two bills. [Clongressmen were 

shaking Delaney’s hand for hours afterward.“” 

With the failure of general aid, a hasty version 

of the old Kelly construction aid proposal was 

resurrected. Monger and Fenno called it an 

“artful contrivance for the capture of 51% of 

the votes.“‘5 It included the reauthorization 

27 
of impact aid in an attempt to hold that popular program hostage. But Republicans overwhelmingly rejected it as a subterfuge, and it 

was badly defeated on a parliamentary manuever designed to circumvent the Rules Committee. 

Fallout from the 1961 experience was long 

lasting. Although the Administration resubmitted its proposals the next year. Congress 

took no action on them. As Sundquist observed: “nobody had any stomach for another 

round of religious warfare.“@ Congressional 

Quarterly announced in 1962 that: “Several 

education aid backers said they felt that the 

entire subject was dead for the foreseeable 

future.“4 Overlooked in this prediction, however, was the possibility that experience might 

produce fundamental attitudinal changes on 

the part of major participants in the educational aid debate. It was abundantly clear that 

refusal to compromise would mean that no 

large-scale aid program would succeed. Sundquist writes that: 

For the leadership on all sides-Catholics, Protestants, NEA, tacticians in 

the Administration and in Congressand for supporters of school aid among 

the general public, the 1961 debacle 

was a chastening ordeal from which 

they gained both wisdom and humility.‘* 

One manifestation of this new posture was 

greater utilization of the categorical aid approach. This was part of a “strategy of subtraction, dropping off controversial features of 

[a] bill to minimize opposition.“‘9 It had 

nearly succeeded with the construction aid 

approach of the 1950% and it proved successful 

with the NDEA. 

Accordingly, the Administration bill introduced in 1963 was an omnibus collection of 

special aid proposals. It included scholarships 

and construction aid for colleges, and programs 

for libraries, adult education, and vocational 

education at the elementary and secondary 

level. General aid was even cast in a new light, 

intended as “selective” aid for areas of need 

identified by the states. 

The Congress broke the large bill down into 

component parts and focused on the most attractive and least controversial sections. College construction aid was passed in 1963, along 

with vocational education. The next year 

NDEA was extended, with its institutional 

equipment provisions broadened to include 

English, reading. history. geography, and civics 

as “defense related” fields. The stage w;ts then 

set to focus on a broader aid bill. 

FOOTNOTES 

‘Munger and Fenno. op. cit.. p. 101. 

*Ibid. 

JQuoted in Donald B. Johnson and Kirk H. Porter. eds., 

Notional Party Platforms. 1890-1972, Urbana. IL, University of Illinois Press. 1973, pp. 403,387. 

‘Quoted in Munger and Fenno, op. cit., pp. 53-54. 

Congressional Quarterly, Congress and the Notion. 

Volume I: 1945.1964, Washington, DC, Congressional 

Quarterly Service. 1965, p. 1202. 

6Quoted in Munger and Fenno. op. cit., p. 84. 

‘Flat grants are based on population rather than need. 

‘Far instance, the AFT referred to the NEA legislation as 

“the bosses hill“ because the NEA included school administrators as well as teachers in its membership. 

sOwted in Muneer and Fenno. OD. cit.. D. 122. 

din ibid., p. 126. 

dinibid. 

pp. 10-11. 

y Tiedf, “Historical Development of Federal Aid 

Programs,” in Roe L. Johns, Kern Alexander. and Dewey 

Stallar. eds., Status and fmpocf of Educationof Finance 

Programs, National Educational Finance Project Volume 

IV. Gainesville. FL. National Educational Finance Proiect. 

“See Table 4. above, and Lucille Eddinger. “Federal Aid 

far ‘Impacted Areas’ Still Holds Vast Political Appeal,” 

National Journal, Washington. DC, January 31, 1970. pp. 

217-218. 

‘IIbid. 

‘IEdgar Bedenbaugh and Kern Alexander, “Financial 

Equalization Among the States from Federal Aid Programs.” in Johns. Alexander. Stellar. eds.. op. cit., pp. 268. 

280. 

“In a divided opinion in 1947, the Supreme Court upheld a 

state law permitting school districts to reimburse parents 

of parochial as well as public school students for bus 

transportation lo school. The doctrine appeared to be that 

parochial school participation in some supplemental services would be upheld, but clearly not direct federal aid 

to such schools. Everson Y. Board of Education, 330 U.S. 1. 

Wraves, op. cit. p. 556. 

~-James Sundquist. Politics and Policy, Washington, DC, 

Braokines Institution, 1968. p. 155. This section rests heavily on h&-account. 

ZOlbid., p. 157. 

*‘Quoted in ibid., pp. 165-166. 

%undquist argues that such antisegregation position-taking by members of Congress on the Powell Amendment 

was increased because a comprehensive civil rights act 

had been delayed; this removed an alternative opportunity for expressing views on racial policy. Ibid., p. 169. 

28 
isQuoted in ibid., p. 170 

“Ibid., p. 171. 

25Quoted in ibid., D. 173 

26lbid.. p. 174. 

*‘Ibid., p. 176. 

goQuoted in ibid. 

IgQuoted in ibid., p. 178. 

TL 85.864. section 401. The section adds, however, that: 

“The Congress reaffirms the principle and declares that 

the states and local communities have and mutt retain 

control over and principal responsibility for public education.” 

3’Congressionol Quarterly, op. cit., p. 1201. 

%undquist, op. cit., p. 179. 

Ybid., p. 182. 

%funger and Fenno. op. cit., p. 134. 

%undquist. op. cit., p. 185. 

%bfunger and Fenno, op. cit., p. 165. 

JiQuoted in ibid., p. 166. 

“Quoted in Sundquist, op. cit., p. 187. Compare this to the 

1960 Republican Platform, which endorsed construction 

aid but proclaimed: “Primary responsihilily for education must remain with the local communities and the 

state.. Any large plan of federal aid to education, such 

as direct grants for teachers’ salaries. can only lead ultimately to federal domination and control of our schools.” 

Quoted in Munger and Fenno, op. cit.. p. 98. 

*‘See Philip i&rank. The Politics of Federal Aid lo Education in 1965: A Study in Political Innovation. Syracuse, 

NY, Syracuse University Press. 1967, p. 43. 

%funger and Fenno. op. cit.. p. 170. 

%undquist, op. cit.. p. 188. 

‘zlbid., p. 189. 

“Ibid.. p. 192. 

‘*Ibid. 

‘Wunger and Fenno, op. cit.. p. 168. 

%undquist. op. cit.. p. 193. 

“Quoted in ibid., p. 205. 

“Ibid.. p. 19.5. 

%h,ger and Fenno. op. cit., p. 179. 

29 

Chapter 4 

Passage Of 

The Elementary And Secondary 

Education Act: The Long Awaited Triumph 

T he long awaited breakthrough in federal aid 

to education was finally achieved with the 

passage of the Elementary and Secondary Education 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 conceptual roots of ESEA can be traced 

to two developments that occurred in 1964. One 

was the introduction of legislation by Sen. 

Wayne Morse [D-OR] to add poverty and unemployment rates to the impact aid program 

formula. The so-called Morse-Dent Bill was 

opposed by the Johnson Administration during 

hearings in 1964; but, with the War on Poverty 

it played an important role in making the educationally disadvantaged a legitimate federal 

concern in education. 

The second precursor of ESEA was the 1964 

Presidential Task Force on Education, one of 

many task forces created by President Johnson 

to prepare legislative proposals for his next 

term in office. It was headed by John Gardner, 

then chairman of The Carnegie Foundation 

and later Secretary of HEW. The task force report was not the central source of ideas later 

drafted into ESEA.* nor did it resolve the 

political obstacles confronting federal aid. 

However, it did lend legitimacy to subsequent 

federal aid legislation by recommending a 

poverty focus for such assistance and urging 

federal promotion of educational change. 

By late 1964, President Johnson had decided 

to make federal aid to education a top domestic 

priority for 1965. The President argued in his 

subsequent education message that, “Poverty 

has many roots, but the taproot is ignorance.“3 

The major task of initiation was performed 

under the leadership of Francis Keppel, then 

U.S. Commissioner of Education. All knew that 

the primary obstacle would be to resolve the 

church-state issue in federal aid. As one Congressman put it: “We were all sensitive to the 

start of another holy war. Politically, not many 

of us can afford a religious war-at least those 

of us from two-religion districts.“’ Keppel assumed responsibility for developing a proposal 

that would do this, along with Douglass Cater 

and Lawrence O’Brien of the White House staff 

and the planning staffs of OE, HEW, and the 

Gardner Task Force. 

Eidenberg and Morey write that: ” (Tlhe 

heart of the process that produced the elementary and secondary legislative formula 

was. a series of meetings and informal negotiations involving the principal groups and 

the past.“5 

The main 

tives of the 

participants included representaUS. Catholic Conference (USCC) 

and the NEA.6 Commissioner Keppel was in 

an excellent position to work with these major 

interests, having developed good relations with 

them on previous legislation. Key Democrats 

from Congress were consulted in the early 

stages of discussion. but the premise of the 

negotiations was that: “The actions Congress 

would be likely to take in this [church-state] 

area [would be1 closely tied to what these 

groups would accept or reject in any proposed 

bill.“’ 

The negotiations produced a number of “understandings” among the interest groups which 

formed the basis of the education legislation. 

The key breakthrough was acceptance of the 

“child benefit” concept. Federal aid was to 

focus on educationally disadvantaged children 

in both public and parochial schools: it was 

not to be considered aid to the school itself. 

This principle was embodied in Title I of ESEA, 

which distributes federal funds directly to local 

school districts according to a formula based 

on average state expenditures on education 

and the number of school-age children from 

low income families. Local districts become 

eligible for this portion of aid upon &ate approval of their program to address the needs of 

educationally deprived children. This includes 

local arrangements to involve private school 

students through “child benefit” and “shared 

services” programs. 

Title I accounted for five-sixths of initial 

ESEA authorizations and was, in the words of 

Bailey and Masher: “ an ingenious balance 

of power among levels of government, an interweaving of specific and ambiguous program 

parameters. and a mingling of short and longrange objectives.“* They add, however. that: 

“it alone would fully satisfy neither the Administration’s policy objectives nor the concerns of all interest groups.‘+ Thus, it was 

supplemented by four additional titles that 

addressed other aims in different ways: 

l Title II-School Library Resources, Textbooks and Other Instructional Materials: 

provided grants to states, on the basis of 

total school enrollments. for instruc32 
tional materials for public and private 

school students and teachers. All materials must be approved for use in the public schools. The Commissioner of Education was authorized to direct states’ 

programs where state law prohibited its 

involvement in parochial schools. 

l Title III-Supplementary Educational 

Centers and Services: this title was designed to promote innovative educational programs. Services provided included 

special educational centers to supplement regular school programs, guidance 

and counseling, and special instructional 

equipment. Project grants were made 

directly by the Office of Education (OE). 

but with approval of the state educational agency (SEA) required. 

l Title IV-Educational Research and 

Training: authorized grants to universities and other organizations to conduct 

and disseminate educational research. 

l Title V-Strengthening State Education 

Agencies: authorized grants to states to 

improve statewide planning, educational 

data, personnel. and leadership. Authorized temporary intergovernmental personnel exchanges between SEAS and OE. 

. Title VI-Restriction of Federal Control: 

included a provision that no federal official exercise supervision of curriculum, 

administration, personnel. or choice of 

instructional materials in any school 

system. 

ESEA was clearly a dramatic departure from 

earlier education programs and proposals. It 

identified new federal interests in education. 

With authorizations of more than $1 billion in 

the first year, it was massive in size and scope. 

By contrast. the Morse-Dent Bill had authorized 

spending $218 million, the 1963 Kennedy proposal authorized $375 million. Perhaps most 

important in the short run, it was the first aid 

to education act supported by both of the principal interest group antagonists-the NEA and 

the LJSCC. The NEA announced its support for 

the hill’s concept of aid to private schools in 

December 1964, while the USCC publicly announced support when the legislation was proposed by President Johnson on January 16, 

1965. 

A factor which proved crucial in establishing 

these negotiated agreements was the 1964 election. As Eidenberg and Morey assert: 

The election. changed the political 

conditions under which education 

policy would be made in 1966. It 

changed this environment sufficiently 

to move the two principal groups to 

positions of tolerance and flexibility 

on a legislative program which they 

both would have opposed under different conditions’0 

The election dramatically strengthened the Administration’s core of liberal Democratic support in Congress, which enhanced its bargaining position with the groups. Furthermore. 

while aid to education was not itself a central 

issue in the campaign, it was generally believed 

that the election provided the President with a 

mandate for action. 

These factors combined to make the group 

representatives more flexible. The USCC 

feared that the Administration could push 

through a version of President Kennedy’s 3961 

legislation, which provided federal aid entirely 

to public schools. Failing to cooperate. Catholic representatives believed they might be 

written out of a massive and permanent federal 

aid program.” The NEA. on the other hand, 

feared that a failure to cooperate on the legislation would produce dire consequences during 

implementation. Its relationship with OE was 

less close under Commissioner Keppel, given 

his higher education background and stress on 

educational innovation. The NEA might so alienate OE as to jeopardize its access during the 

development of regulations. Given these motivations, the new “child benefit” policy formula 

allowed the groups to move from their uncompromising positions of the past without directly 

contradicting them. It was a “new ball game.” 

Other factors besides the election acted to 

ease the process of consensus building as well. 

Keppel’s relationship with the White House 

demonstrated to the parties involved that he 

acted under Presidential authority. Further33 
more. by settling the question of federal aid to 

segregated schools the Civil Rights Act of 1964 

had neutralized the troublesome racial issue. 

CONGRESSIONAL PASSAGE 

Notwithstanding the coalition that had been 

established and the apparent resolution of the 

religious issue, Administration and Congressional leaders took nothing for granted in 

planning the strategy for Congressional passaga. They knew that many coalitions over federal aid to education in the past had collapsed 

en route to passage. Indeed, settlement of the 

religious issue highlighted difficulties that it 

had overshadowed. Additional efforts were 

taken to address these conflicts prior to Congressional consideration. 

*The formula was designed both to focus 

funds on areas of poverty and still distribute some assistance to virtually every 

Congressional district; 

*new programs and funding were included for every level of governmentfederal, state, and local: 

*stress placed upon educational innovation, which appealed to certain parts of 

the education community, was combined 

with massive support of the educational 

establishment. 

Considerable administrative discretion remained in the legislation on various matters of 

controversial detail. As Bailey and Mosher 

write: 

Title I exemplifies a common 

legislative technique for dissipating 

political opposition in the enactment 

phase of controversial laws. Congress 

created a” undefined area of administrative discretion for the Commissioner 

of Education and the states far more 

extensive than mere supervision of fiscal accountability and probity, and delayed to the implementation stage of 

Title I the job of dealing with unresolved issues.‘2 

This left important ambiguities that could be 

exploited by federal aid opponents. Thus, the 

decision was made to rush the legislation 

through Congress before agreements could unravel and latent conflicts could emerge. Bills 

were introduced in Congress on January 12. 

1965. the same day the legislation was revealed 

by the President. Initial efforts focused on the 

House side, where the dangers of latent opposition were the greatest. Only ten days after its 

introduction, hearings were begun on the proposal in the House Education Subcommittee. 

There was immediately some Congressional 

resentment of the policy process that was 

underway. The legislation had largely been 

developed in secret and then sprung on Congress with the expectation that it be passed immediately and unamended.33 The religious 

compromise had solved the major problem of 

most Democratic aid proponents, but many remained unhappy with the formula. The propensity of many Republicans to oppose parochial 

school aid was exacerbated by the partisan 

atmosphere of the policy process. 

These issues began to emerge during the subcommittee bearings. The greatest dissatisfaction was with the Title I formula. Edith Green 

[D-OR), a” important Representative on educational matters, attacked the limitations on interstate equalization in Title I; by tying federal 

aid to state educational spending, this program 

for the disadvantaged could be skewed toward 

wealthy but educationally active states. From 

the other side, complaints were expressed over 

the failure of the formula to include as disadvantaged the children of welfare recipients 

whose level of income was above the $Z.OOO 

poverty limit. To include such children would 

tend to aid northern states with higher welfare 

payments. 

Another issue concerned the ambiguity of 

the program of federal assistance to parochial 

schools under Titles II and III. Despite the concept of child benefit, actually providing parochial school teachers and students with equipment and facilities, without aiding the school 

directly, promised to be difficult to administer. 

The need to make this concept operational 

threatened to reopen the religious issue once 

again. Furthermore. although the major groups 

had been presuaded to accept these provisions. 

some groups did not accept this technique for 

separation of church and state. Both the America” Civil Liberties Union and the American 

34 
Jewish Congress expressed concern over these 

provisions. 

Finally, Republicans charged that several 

titles of the act authorized undue discretion 

and interference in local education on the part 

of federal officials, despite the act’s avowal to 

the contrary. Similarly, the Council of Chief 

State School Officers (CCSSO] publicly opposed Title II because of its provision for direct 

federal administration of the program where 

states were unable to do so because of state 

law. According to Bailey and Mosher: 

This “escape clause,” a concession to 

the nonpublic school interests, was regarded by many professional educators and members of Congress as an 

undesirable extension of federal 

authority. It provoked attacks on Title 

II that were more concerted and determined than opposition offered to the 

propriety of the proposed program 

itself.” 

However, other aspects of the legislation, such 

as Title V assistance to state education agencies, “may well have rendered more palatable 

to !hem.. provisions of other titles which 

they disliked.“‘5 

Despite the acknowledged validity of several 

issues, few changes were made in the legislation. The Administration’s position was that, 

faults aside, the bill was one that could pass. It 

had saved members from their primary fear of 

crosscutting religious pressures, and major 

substantive changes could unravel the multiple, 

fragile compromises that comprised it. As the 

AFL-CIO testified: 

I repeat.. let’s get started.. and 

get a bill through here, and begin to get 

some money into our school systems 

where we know it is badly needed, 

and then we can take another good 

look and get closer to the goal that 

both you and I want; and we make no 

hones about it, that we want a general 

education bill.‘6 

Even before the bill was reported to the House, 

subcommittee chairman Carl Perkins (D-KY) 

promised that hearings on formula changes 

would begin immediately following the hill’s 

passage.” These arguments proved successful. 

As one member of Congress remarked: 

[Wle just had to make the hard 

choice and face the reality that in 1965 

the issue was not good education policy versus bad. The question.. was 

whether there was ever to be federal 

aid to the elementary and secondary 

schools of this nation. The 1965 bill, in 

all candor. does not make much sense 

educationally; but it makes a hell of a 

lot of sense legally, politically, and 

Constitutionally. This was a battle of 

principle. not substance, and that is the 

main reason I voted for it.” 

Subcommittee hearings were completed in 

ten sessions in 12 days, often running into evenings and weekends. A few small changes were 

made by the subcommittee. Most notably, it 

was clarified that educational materials under 

Title II were to be publicly owned and simply 

loaned for private school use. Unable to affect 

any changes, Republican members of the suhcommittee boycotted the legislative markups, 

pro!es!ing the “hasty and superficial” treatment given the bill.19 

Markup in the full Education and Labor 

Committee began immediately upon receipt of 

the bill. Issues raised at the subcommittee stage 

continued during the “formalities” of full committee consideration.20 Mrs. Green joined with 

Reps. Charles Goode11 (R-NY) and Albbrt Quie 

(R-MN] in seeking to alter the legislation. The 

Democratic leadership resisted all changes. The 

bill was reported to the full House by the 

Committee with its last major Congressional alteration: the formula was altered to include 

the children of welfare recipients who earned 

more than the original income limit defining 

poverty. Eight Republicans dissented from the 

Committee report. 

On March 22, the hill cleared one of its traditional hurdles. the House Rules Committee, by 

an 8-7 vote. Floor consideration began eight 

days later. Membership polls by the House 

leadership indicated easy passage, but precautions were taken against troublesome amendments. Administration strategists were stationed in the House gallery to provide helpful 

35 
replies to difficult questions.2’ Reps. Green. 

Good4 and Quie again led the attack, Proposed changes in the formula. which benefited 

many members’ districts, were beaten back, as 

were all other amendments. The bill passed 

the House with no more changes on March 26 

by a vote of 263 to 153. As one observer remarked: 

The education bill was the most interesting bill of the first session of the 

sgth Congress, because of the broad 

base of opposition that could have 

resisted it, and the interesting way in 

which the bill was put together to 

negate each segment of the potential 

opposition. It was essentially an interesting technical problem in legislating.** 

For their part, some Republicans called it the 

“Railroad Act of 1965.“23 

Senate consideration proved to be less eventful. Sen. Wayne Morse (D-OR), chairman of the 

Education Subcommittee, had agreed with Administration strategists that the Senate pass the 

bill exactly as the House had, in order to eliminate the need for a House-Senate conference 

over differences. Such a conference would provide an additional opportunity for opponents 

to block the legislation, as actually occurred in 

1960. This was an extreme case of deference to 

tactical considerations. Since the Senate is a 

coequal branch of government, its members 

naturally desire an opportunity to influence 

legislation. In order to provide a degree of 

Senate input, the House Education and Labor 

Committee report was deliberately written to 

reflect a number of Senate views. Additional 

topics were taken up independently in the 

Senate Committee’s report. Thus, Senators 

were able to influence key elements of the 

legislative record that would later form the 

basis of federal regulations and court decisions. 

During Senate consideration of ESEA. the 

bill’s formula again became an issue. An 

amendment to alter it and benefit a majority of 

states was easily defeated.24 The bill passed 

the Senate on April 9, 1965, by a vote of 73 to 

18. 

FOOTNOTES 

The maim exceotion to this was ESEA Title III, educational ir&ovatio~, about which there is general agreement 

that the Gardner Task Force was Ihe crucial innovator. 

See. for example, Stephen K. Bailey and Edith K. Masher, 

ESEA: The Office of Education Administers ~1 Low. Syracuse. NY, Syracuse University Press, 1968. p. 54. 

rQuoted in Congressional Quarlerly. Congress and the 

Nation. Volume II: 1965-1968, Washington, DC, Congressional Quarterly Service. 196% p. 720. 

‘Quoled in Eugene Eidenberg and Roy Morey. An Acf of 

congress. New York. W. W. Norton % Co.. ,969. p. 77. 

SIbid.. p. 80. 

*Interestingly, the Chamber of Commerce was no longer 

deemed a sufficiently important influence on education 

legislation to merit inclusion. See ibid., p. 61. 

‘Ibid., p. 60. 

*Bailey and Masher. op. cit.. p. 51. 

‘Ibid. 

,OEidenherg and Morey. op. cit., p. 86. 

“Ibid. i 

“Bailey and Masher, op. cit.. pp. 50-51. 

‘aBailey and Masher write that “. key staff members of 

Ihe education committees in both houses were frequently 

consulted. but most of the key Senators and Congressmen 

knew only what they read in the newspapers.” Ibid.. p. 61. 

‘<Ibid., p. 53. 

“Ibid., p. 58. 

“Quoled in Eidenberg and Morey, op. cit.. pp. 105-106. 

“Ibid., p. 92. 

‘*Quoted in ibid., p. 93. 

Xluoted in ibid., D. 106 

*o&d. 

%‘An amounl of their activity is Siven in ibid.. p. 129 

22Quoted in ibid., p. 144. 

Z’lbid., p. 95. 

‘4bid.. p. 165. 

36 
Chapter 5 

New Controversies and Old: 

The Politics Of Implementation 

P ‘. resident Johnson signed ESEA into law on 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 implewmentation 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. Programs 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 pro37 
gram to implement. As former Commissioner 

of Education, Harold Howe, remarked: 

ESEA was the only type of federal activity in education which was likely to 

be politically viable in 1965. I doubt 

that anyone could have dreamed up a 

series of education programs more 

difficult to administer but ESEA 

was not designed with that in mind.2 

Inconsistent goals had been combined. and 

potential conflicts bad been deliberately disregarded in order to ease passage of the act. 

Indeed, there was even disagreement as to 

whether the program constituted general or 

categorical aid. Many perceived the bill as 

general aid to education. This was certainly 

true of many in Congress. according to Eidenberg and Morey: “. The participants in the 

federal aid fight in 1965 all acted as though and 

spoke as if the issue to be decided was whether 

the federal government would enter the field of 

general aid to education.“3 It was true as well 

of local school officials. “, [A] number of 

local educational agencies interpreted ESEA as 

a general aid to education bill,” write Bailey 

and Masher: Yet, the structure of the program 

was categorical. a characteristic that was crucial to the bill’s passage. Title I, for example, 

was intended to benefit the educationally disadvantaged. Together with the legislation’s 

stress on innovation, many expected this program to prod local government, to spur educational reform. However, the Title I category 

was very broad, similar to a block grant. A recipient class was identified, but the range of 

possible services was practically “endless.“5 

The ambiguity in the legislation gave considerable latitude for determining the actual 

content of the program in the program’s implementation. This placed great responsibility on 

the Office of Education. The situation was further complicated in other ways. The Office of 

Education was, itself, largely divided over the 

proper interpretation of the act. Personnel 

hired under the Kennedy and Johnson Administration tended to favor an activist federal role. 

Veteran employees of the office, however. generally favored a more restrained federal 

posture, based upon their conception of a service-oriented agency. 

The complexity of the program added to 

these difficulties. Even had there been agreement on purpose. administration of the law 

would have been complicated. The act contained five separate titles, each with a different 

objective, funding mechanism, clientele, and 

intergovernmental relationship. Title I alone 

was a web of administrative complexity. Bypassing the states, it distributed federal funds 

directly to the county level through a formula 

based on average state education expenditures 

and poverty levels. Within counties, funds were 

to be distributed among school districts on the 

basis of relative poverty. Once in the school 

system, however, the focus was to be on educationally deprived children, regardless of income status. Local programs to assist such children then required approval, not by the Office 

of Education (OE] directly, but by the state 

education agency on the basis of federal guidelines. 

EDUCATION AND CIVIL RIGHTS 

With the implementation of ESEA. aid to 

education became linked with federal desegregation efforts, and racial controversy emerged 

as a central issue in the program. This had not 

been anticipated. Prior to 1964. federal desegregation efforts were centered in the’ federal 

court system. The Supreme Court had led the 

way in 1954 with the prohibition of educational 

segregation in the Brown decision. Implementation of this decision was carried on by the 

courts under the mandate of “all deliberate 

speed.” Citizens dissatisfied with the speed of 

progress in their school district could bring suit 

for enforcement, but this case-by-case method 

was slow.’ 

The breakthrough was provided in the Civil 

Rights Act of 1964. This act prohibited discrimination in public accommodations, employment, and education, and it provided for 

federal enforcement through the legal system. 

Most importantly for federal aid to education. 

however. Title VI of the act prohibited discrimination in any federally assisted program. 

Beryl Radin asserts that this provision of the 

act was something of a legislative accident: 

“The title had been originally inserted into the 

bill by the Kennedy Administration for bargaining purposes: the John Kennedy assassina38 
tion and the subsequent Johnson honeymoon 

gave the section real life.“7 At the least, legislative intent concerning the enforcement of the 

provision was ambiguous: 

“one of the powerful elements 

within the legislative coalition-the 

labor unions, church groups, and the 

NAACP-had a clear picture of a path 

that would be required for federal officials to proceed from the status quo 

to the goal enunciated in Title VI. The 

minimal debate on the measure within 

Congress also reflected the failures of 

the contending interest groups involved in the lobbying to focus on the 

administrative imperatives of the 

title. The Title VI issue [is] a” example of a policy area that took administrative form without a clear blueprint for enforcement emerging 

through the legislative process.8 

As a result, the provision was not vigorously 

enforced in many federal grant areas.* 

This was not the case in aid to education, 

however. where the linkage between federal 

aid and discrimination was unavoidable, especially in the south. ESEA became a major tool 

in the enforcement of Title VI, as Radin observes: 

in the Department of Health, 

Education, and Welfare-and especially in the education activities of the 

department-serious attempts were 

made to condition the federal dollar 

on nondiscrimination requirements. 

These serious efforts were made after 

the enactment of ESEA.. Indeed, OE 

spent many more hours. resources, and 

effort in the Title VI requirements and 

policies after the enactment of ESEAalmost a year after the 1964 Civil 

Rights Act was passed.10 

There was a degree of irony in this result. One 

reason that ESEA avoided the troublesome 

race issue in Congress in 1965. which had undermined so many federal aid attempts in the 

past, was the Congressional assumption that 

the federal aid and desegregation question had 

been settled by the Civil Rights Act the year before. It was not assumed that ESEA would become the crucial tool in implementing it. Some 

have since questioned its effectiveness in this 

regard.” However, a recent study by Gary Orfield places ESEA at the heart of southern desegregation efforts: 

The enforcement of the 1964 law 

broke the logjam of resistance., As 

President Johnson left office in 1969 a 

number of the goals of civil rights leaders were in sight. By the fall of 1965 

most southern school systems had executed plans more demanding than 

those won by litigation. The next year, 

HEW toughened its requirements. As 

President Nixon was sworn in, school 

assignment policies in the rural south 

were rapidly approaching parity with 

those in the north.‘* 

This served to enormously complicate the already difficult implementation problems of 

ESEA and to strengthen political opposition to 

the program. To the massive task of administering a large and complex new law was added 

the simultaneous requirement to enforce the 

civil rights provision: 

The task facing the Office of Education was staggering. It had to induce 

instant desegregation and to end programmatic discrimination in every 

school district slated for the award of 

federal aid. Compounding the dilemma was the fact that the Civil 

Rights Act provided no definitions of 

segregation and discrimination. 

[T]he sheer volume of work involved 

in processing the submissions of nearly 

5,000 southern and border districts 

severely impeded other USOE efforts. [T]he fear that sizable blocks 

of funds would not be distributed beca”se the necessary Title VI assurantes could not be negotiated and 

processed in time brought the problem 

to crisis proportions.‘3 

During the first year, OE guidelines for civil 

rights compliance allowed segregated school 

39 
districts to make a “good faith start.” relying 

on voluntary desegregation plans, Funding cutoffs were avoided. This strategy’s lack of effectiveness produced stronger aid requirements 

the next year.‘* Funding cutoffs for noncompliance became more common. 

Reactions to this effort were strongly “egative. The civil rights regulations greatly compounded local disaffection with program constraints arising from the categorical nature of 

Title I. Moreover, in some instances the two 

sets of requirements were incompatible.‘5 

The result was a powerful Congressional reaction: 

Congressional opponents turned belligerent when the agency made 

clear that it was actually aiming at 

transformation of the southern school 

systems. Southerners were shocked 

that HEW was prepared to take the almost unprecedented step of cutting off 

large amounts of federal grants-inaid.‘” 

THE CONGRESSIONAL RESPONSE, 

1966 

Due largely to Congressional dissatisfaction 

with the Title I formula when ESEA was 

rushed through Congress in 1965, the program 

was given only a one-year authorization. Thus, 

it had to be considered again in 1966. In this 

short time spa”, the Congressional environment was already in “marked contrast” to the 

year before.” In addition to growing opposition to HEW policies in the south, urban riots 

and a” aborted Office of Education attempt to 

challenge de facto segregation in Chicago 

served to heighten racial concern among many 

northern Congressmen. Furthermore. the growing war in Vietnam and the President’s falling 

popularity had weakened the Administration’s 

standing in Congress. This was exacerbated 

when President Johnson proposed a 50% cut in 

the popular impact aid program. 

Congress was sharply divided over several 

education issues. Republicans and southern 

Democrats split with urban Democrats over the 

Title I formula. An incentive grant provision in 

the formula designed to stimulate state education spending was contested throughout the 

legislative process and finally dropped. Intended to “arrow the spending gap between 

states, it had the perverse effect of increasing 

federal aid disparities by stimulating the most 

affluent states. 

Additional formula changes benefited both 

groups but only by substantially raising the 

program’s authorization. One amendment allowed poorer states to use the national average 

of state school expenditures per child if this 

was higher than their own average expenditure, 

thus increasing their relative share of funds. 

On the other hand, the low income definition 

was raised to $~,ooo, which ajded the northern 

states. Both changes were to occur in 1968, but 

Congress later revoked the second change so 

that it did not take effect. 

Race issues dominated consideration of the 

legislation on the House floor. Eidenberg and 

Morey write that: 

The preoccupation of the members 

with this issue was cause for some 

alarm among federal aid advocates and 

the Democratic leadership. They felt 

they had enough votes to defeat any 

amendments to the bill except those 

involving 12ce.‘~ 

An antibusing amendment was easily adopted, 

prohibiting any federal department or agency 

from requiring “the assignment or transportation of students or teachers in order to overcome racial imbalance.“‘* A small grant program providing aid to districts undergoing 

desegregation was eliminated. Most importantly, major Administration opposition failed to 

prevent House passage of the Fountain Amendment, which placed important procedural limitations on OE’s ability to withhold school aid 

funds for discrimination violations. Senate 

modification of this provision prevailed. 

however. 

Congress also established a number of new 

programs and earmarks in the ESEA. A new 

Title VI was added to the act, authorizing a 

program of federal grants to the states for the 

education of mentally and physically handicapped children. This program had bipartisan 

support in the Senate and was accepted by the 

House in conference.20 Adult education programs were transferred to OE from the Office 

40 
of Economic Opportunity (OEO). Earmarks 

were established in the Title I program for the 

children of migrant workers and for children 

attending Indian schools. Finally, Congressional pressure for increased education spending 

was strong. The Senate raised education authorizations almost $1 billion above the Johnson 

Administration’s request, and a $700 million increase was retained in the final bill. 

THE CONGRESSIONAL RESPONSE, 

1967 

The Congressional challenge to ESEA was 

even more serious in 1967. Federal control over 

education became a central issue, while racial 

controversy continued to jeopardize support 

for the legislation. Gary Orfield writes that: 

The mortal threat to the program 

suddenly became clear in early 1967. 

House Democratic leaders were 

shocked to learn that a Republican 

plan might well pass that would turn 

ESEA into a kind of education revenue 

sharing.. In a long and dramatic 

fight the House leaders stalled the bill 

while education groups, the White 

House. and committee members 

worked to put the coalition back together again.2’ 

In the 1966 election, Republicans reversed 

the Democratic gains made in 1964 with a net 

increase of 47 seats in the House. The reinvigorated Republican Party gave an education 

block grant proposal strong support. It was 

introduced in the House by Rep. Albert Quie 

(R-MN), third-ranking Republican on the Education and Labor Committee, and it had the 

support of 12 of the 14 Republicans on the 

Committee. The block grant was an expression 

of concern over federal control of education. 

Under its provisions, Titles I, II, III, and V of 

ESEA would have been consolidated into a 

single grant to the states. It represented a fundamental assault on the categorical character of 

ESEA by: I’. leaving state and local school 

agencies to establish their own priorities and 

to devise patterns for using the funds which 

best fit both their needs and their structure of 

education finance.“22 

The prospects for basic change of ESEA were 

enhanced by serious divisions within the 

Democratic ranks. Southern Democrats. of 

course, remained thoroughly opposed to desegregation activities in the south. They held 

the balance of power in deciding the block 

grant issue. Northern Democrats continued to 

be divided over the Title I education formula. 

In addition. Rep. Edith Green (D-OR) had held 

critical hearings on the administration of ESEA 

in the House Special Subcommittee on Education. Having investigated problems of funding, 

program organization, fragmentation, paperwork. and federal control, Mrs. Green had prepared a number of amendments to the education bill. 

The first amendment offered by Rep. Green 

required that Title VI desegregation guidelines 

be uniformly enforced throughout the country. 

This was adopted despite charges that it was 

meant to kill the education bill. The Fountain 

Amendment, placing procedural restrictions on 

the cutoff of funds for desegregation violations, 

was passed once more. Another amendment 

was passed that increased the formula allotment of funds to poorer states in the south. 

All of these alterations were favorable to the 

south. This proved crucial in attracting sufficient southern support for ESEA to defeat the 

Republican block grant proposalr For their 

part, Democratic leaders and federal aid supporters had rallied to reconstruct their endangered coalition. Quie had attempted to force 

the issue of federal control: “Are we going to 

give, step by step. more control to the Commissioner of Education or are we going to restore 

state control?“23 In so doing, he had gained 

support for his proposal from the state school 

officials, the Chamber of Commerce, and numerous small town school administrators who 

were upset over federal guidelines and paperwork. On the other hand, civil rights groups 

opposed limiting the federal role, as did most 

big city school superintendents who feared a 

loss of funds under state control and who often 

found state regulations as onerous as federal 

ones. 

It was the church-state issue, however, which 

proved crucial in maintaining the federal aid 

coalition. Aid supporters feared the block grant 

would revive religious controversy in the 

states, as they attempted to determine federal 

41 
aid priorities anew. Religious controversy 

might then escalate and endanger federal aid itself. In short, the NEA. the Catholic Conference, the National Council of Churches. and 

their Congressional allies preferred to retain 

an acceptable status quo rather than raise the 

prospect of upsetting “the delicately balanced 

compromise” and risking “a holy war.“*’ The 

Quie Amendment was defeated by a vote of 

166 to 197. 

With the defeat of the Quie Amendment, Rep. 

Green introduced a compromise proposal giving control of Titles III and V (supplemental 

centers and state agency grants) to the states. 

Despite Administration opposition, this decentralization proposal was passed by the 

House. The Senate attempted to weaken it, but 

it was restored in the conference version of the 

bill. As in the House, the Senate became caught 

up in controversy over racial issues. A weakened version of the Fountain Amendment and 

an antibusing provision were finally passed by 

that chamber. 

ESEA survived a strong challenge in 1967, although the federal role in education had been 

weakened by the Green Amendment and the 

limits placed on desegregation efforts. As Tom 

Wicker wrote in The New York Times, however: “The significant thing is that if the Republicans now intend to fight it out on this line 

then the ‘real issue’ of American politics is no 

longer whether government should act hut how 

and at what level.“zs Moreover, as in 1966, a 

number of new programs were added. One was 

bilingual education (Title VII], designed to improve the education of children with limited 

English-speaking ability. This program was developed in the Senate, “at the initiative of Congress, particularly the delegations from California and Texas.“*~ Another Senate initiative 

was a program of grants for dropout prevention [Title VIII]. Finally, ESEA Title VI (state 

grants for the handicapped) was expanded to 

include funds for regional resource centers for 

handicapped children, model centers for deafblind children, and personnel recruitment. 

FOOTNOTES 

‘Quoted in Jerome T. Murphy. “The Education Bureaucracies Implement Novel Policy: The Politics of Title I of 

ESEA. 1965-72.” in Allan P. Sindler. ed.. Policy ond Politics in America. Boston, LLltle Brown % Co.. 1973. p. 161. 

‘Quoted in ibid.. p. 194. 

‘Eidenberg and Morey, op. cit., p. 91. Congressional 

Quarterly called the act. “the first general aid to education law.” Congress and the Notion, Volume II. op. cit.. p. 

no. 

*Bailey and Masher, op. cit., p. 18.3. 

*“The schools could reduce their class sizes. hire remedial reading teachers. buy special equipment, serve 

breakfasts et school-the possibilities were endless,” 

Congressional Quarterly. Congress and the Notion, Volume II, op. cit., p. 710. Murphy notes that: “The House 

Committee Report on ESEA contained a ‘laundry list’ 

of 49 possible Title I expenditures ranging from reading 

programs to health services. .” Murphy, op. cit., p. 169. 

*See. for instance: Gary Orfield. Must We Bus?, Washington. DC. Brookings Institution, 1978. p. 362; and Beryl 

&din. Implementation. Change, and the Federul Bureaucracy. New York. NY, Teachers College Press. 1977. 

p. lcl(1. 

‘Radin. op. cit.. p. 58. See also p. 5. 

‘Ibid.. pp. 146, 211. 

%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. 

‘nIbid., pp. 7. 92. 

“Bee. for example. Bailey and Musher, op. cit., p. 153. 

‘*Orfield, op. cit., pp. 36.2. 281-282. 

“Bailey and Masher. op. cit.. pp. 144.148. 

““In March 1986. OE issued a set of new requirements that 

clearly displayed a mood of impatience with the progress 

of the previous year. In general. the tune end the substance of the revised guidelines were tough.” Ibid., p. 155. 

‘SIbid., pp. 149-150. 

‘-Orfield. DD. cit.. u. 237. 

“Eidenb&i and Corey, op. cit., p, 186. 

‘*Ibid.. p. 195. 

“Quoted in ibid., p. 194. 

‘Orbid., pp. 19tl. 201. 

“Gary Orfield. Congressional Power: 

Change. New York. NY. Hacourt, 

Congress ond Social 

, Brace, lovanovich. 

ZsQuoted in Eidenberg and Morey. op. cit.. p. 208. 

*aQuoted in ibid.. p. 211. 

Z’The remarks of Speaker John McCormack [D-MA) and 

Rep. Hugh Carey (D-NY). respectively. quoted in ibid. 

Z’Quoted in ibid.. p. 213. 

“P.L. SO-247, Congressional Quarterly. Congress ond the 

Notion, Volume II. op. cit.. p. 713. 

42 
Chapter 6 

Federal Aid To Education Under Fire: 

The Nixon Years 

w. hen the Nixon Administration came to offlee 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 precious 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 dedicated advocates, but who are now embarrassed by the critics and seem unable to counter with dramatic success 

stories made possible by ESEA.’ 

The problems which gave rise to these con43 
terns were genuine. ESEA was possibly the 

most evaluated federal program in existence. 

Thorough evaluation had been required by 

law, at the initiative of reformers such as Sen. 

Robert Kennedy (D-NY], concerned with political accountability, and management reformers 

interested in applying cost-benefit analysis to 

social programs.2 Yet, evaluation efforts were 

surprisingly difficult to actually perform. 

“There are numerous reasons why efforts to 

evaluate Title I failed. The central cause is that 

school districts had no incentive to collect or 

report output data, and federal officials lacked 

the political muscle to enforce evaluation 

guidelines. “3 Evaluation studies that were 

done tended to produce discouraging results 

for program supporters. They showed that 

achievement test scores of children participating in Title I compensatory education programs were generally not significantly better 

than those of similar children not participating 

in the program. When improvements were discovered. they usually proved to be temporary. 

As julie Roy Jeffrey summarized these studies: 

the lackluster results from largescale programs were suggestive.. 

Compensatory education, as most often organized. did not appear able to 

overcome the effects of poverty with 

any predictability. It was obvious 

that Title I had not lived up to the 

rhetorical claims made for education 

in the early days of the War on Poverty.’ 

Such conclusions were not unanimously 

shared. The objectives of the program were so 

broad and varied that, apart from methodological ease, it was unclear that test scores should 

be the basis of evaluation. As McLaughlin explains: 

an analysis of impact on achievement assumes increased achievement 

to be a program goal and that the treatment activities could conceivab!y have 

some effect on academic achievement. 

Title I. however. evidences no such 

agreement among local programs on 

either means or ends. It is little 

more meaningful to assume that better 

academic achievement is the single 

most important goal of Title I than it is 

to insist that its most important objective could be measured by counting the 

number of hot lunches served.. or 

the number of private school children 

served.. To conclude on the basis 

of standardized test scores that Title I 

is not (or is) “working” is not justified.5 

Moreover, a 1969 study by the National Advisory Council on the Education of Disadvantaged Children indicated that, however rare, 

successful compensatory education projects 

could be devised.6 Defenders of Title I could 

point to poor local administration or inadequate funding as the real culprits in cases of 

failure.7 Wirt and Kirst write that: “Indeed, 

[civil rights organizations] felt that Title I 

never had a chance to bring about achievement 

gains.. because the money was being spent 

for general aid and diverted from the special 

educational needs of disadvantaged children.“8 

The political effect of the evaluation studies. 

however. was clearly negative for ESEA. 

The distribution of funds under Title I was 

equally controversial. To begin with, the program spread funding very widely, despite its 

poverty rationale. A school district needed 

only 100 poor children or 3% of its enrollment 

in order to qualify for federal aid. Untler this 

formula, 95% of the nation’s counties were eligible.9 The interstate allocation of funds was 

criticized for the same reason and has continuously been an issue of Congressional dispute. As noted previously. the formula responds 

positively to state educational expenditures as 

well as to poverty, thus aiding the active but 

wealthier states of the north. The 1967 change 

in formula favored the south. but did not totally erase this tendency. In per capita allocations: 

The allocation per formula child is 

relatively low for counties that contain 

high proportions of eligible children. 

This is because the southern states, 

which have the lowest educational expenditures. also contain most of the 

districts that have heavy concentrations of low income children.‘* 

ESEA defenders could counter that, after the 

44 
1967 formula changes, Title I did have an equalizing effect, in contrast to most other federal 

and state aid programs: 

Title 1 is markedly more redistributive than other state and federal aid 

programs. A recent study of aid 

programs in education, welfare, and 

other areas suggests that Title I might 

be the most redistributive of all federal domestic programs providing 

funds to jurisdictions. Title I funding was shown to have a correlation 

of -0.76 with county per capita income. 

Only the food stamp program came 

close to equaling this apparent redistributive effort.” 

Nevertheless, the existence of this controversy 

itself, with its charges and countercharges. 

served to weaken the program’s justification 

and support. 

The issue of federal control over education 

continued to provide a third area of controversy. The strength of the issue had been illustrated in the block grant contrdversy of 1967. 

Rep. Quie pressed the issue once more in 1969. 

Paradoxically. however, most students of ESEA 

have emphasized the degree of freedom exercised by local school officials and the limitations on federal oversight. As Milbrey McLaughlin observed: “In practice, many LEAS 

[local education agencies] have used Title I 

funds as general aid, some quite blatantly and 

others by stretching the operational definition 

of ‘category’ to its broadest interpretation.“‘2 

Jeffrey’s study of ESEA agrees: “. the Office 

of Education did not dominate state and local 

authorities. Local areas used funds as they 

wished.“‘3 An important study by civil rights 

groups in 1969 reached similar findings. It utilized internal HEW audits which disclosed: 

numerous violations of the law 

across the country. Title I supplied 

general aid for 011 children in some 

school districts, rather than focusing 

on the special needs of the disadvantaged. Title I was used in place of state 

and local funds, rather than adding 

supplementary services in others. In 

addition, a variety of questionable, if 

not illegal, purchases were made: 

classroom carpeting, bedroom sets, 

football jerseys. HEW auditors. 

estimated that Imisuse of funds] was 

“substantially greater” than 15% of 

Title I’s total allocation.” 

In a “scathing” attack on OE’s administration 

of Title I, the report charged that: 

The audit reports have brought to 

light numerous violations of the law 

and have recommended that millions 

of dollars be recovered by the federal 

government. Yet in only three cases 

has the Office of Education sought and 

received restitution of funds illegally 

spent.. Even in the most flagrant 

cases.. the Office of Education has 

failed to act.‘5 

These critiques all gave essentially the same 

reasons for the failure of federal officials to 

enforce Title I guidelines. OE has traditionally 

been a weak organization which deferred to 

the practices of state and local school officials. 

The complexity of the Title I program tended 

to reinforce this posture. making effective federal control through the program virtually impossible. The Office of Education established 

eligibility guidelines and criteria for local 

projects. Enforcement of these was.left to the 

states, however, which frequently ignored 

them.‘6 Since Title I money was automatically 

disbursed by formula. the only direct form of 

control was the drastic step of total cut off of 

aid. 

The result was that practically no one was 

satisfied with the ESEA. The circumvention of 

compensatory education objectives displeased 

liberals and minority spokesmen. There was 

equal discontent among local school officials. 

Certain federal regulations, such as Title VI, 

had been effective in changing established local practices. Furthermore. the categorical 

nature of ESEA and the mandate for evaluation produced considerable paperwork. restrictions. and red tape. Frieden and Dunbar maintain that the program’s data requirements for 

substantive evaluation surpassed those for fiscal accounting and ignored the relatively 

small share of federal funds in local education: 

“Data are required to cover the entire field of 

endeavor: all activity, all revenues, 011 expendi45 
tures, all evidences of need, work measurement, and accomplishment.“” Moreover, Edith 

Mosher argues that the traditional autonomy 

of education increased the “initial shocks” of 

federal regulations under ESEA. Many standard and accepted federal practices in other 

functional areas appeared as “federal control” 

in education: “When federal funding at long 

last became available, education was catapulted into intergovernmental administrative 

arrangements that were already familiar in 

other sectors, improvisational and unwelcome 

as they may have seemed to educators.“*~ Regardless of outcome, Office of Education attempts to enforce program compliance heightened such local fears of control. 

During the Nixon Administration, the dissatisfaction with the program that had developed in the final years of the Johnson 

Administration was reflected fully in Administration policies. Reviewing the education programs of the 60% President Nixon in 1970 

concluded that: “the best available evidence 

indicates that most of the compensatory education programs have not measurably helped 

poor children catch up.“‘* The Administration’s response was a three-tiered attack on the 

federal role in education which lasted the 

length of the Nixon Presidency. This included: 

confrontation with Congress over the education 

budget; the exploitation of racial politics; and 

the promotion of education revenue sharing. 

THE POLITICS OF THE 

EDUCATION BUDGET 

Congress took the first action ofi education in 

1969. Anxious to protect the Great Society programs, the House Education Subcommittee 

rushed a five-year reauthorization to the floor. 

Orfield remarks that: 

the committee leaders actively 

mobilized the constituents of the programs they wished to continue, then 

used hearings and floor debate to provide a platform for the pressure groups 

they helped generate. Democrats 

were trying to force the issue and deny 

the new President any significant influence on the basic school program 

throughout his first term.20 

The effort was modified, however, when Republicans and conservative Democrats succeeded in limiting the attempted “deep freeze” 

authorization to only two years. 

Although dissatisfied with ESEA, the Administration had not yet developed an education policy. ESEA was not mentioned in the 

President’s 1969 domestic policy message. However, the Administration did have an established policy on budgetary matters, so the 

initial battleground became appropriations. 

Actually, constraints on the education budget 

had begun to emerge before the Nixon Administration assumed office. Due to mounting fiscal pressure from the Vietnam War, education 

appropriations began lagging seriously behind 

authorizations. By fiscal 1968. appropriations 

comprised only 43% of authorizations as the 

federal fiscal role in education stabilized at 

about 8% of all educational expenditures. Orfield observes that “The original plan for a 

rapidly expanding program accounting for a 

growing proportion of the nation’s school 

needs was abandoned in favor of operation at 

a stationary level, with small increments of 

funds.“*’ 

The Nixon Administration challenged this 

stable funding pattern. In order to protect “the 

already small range of fiscal options available 

to the President,” the Administration broposed 

a $450 million reduction in the previous year’s 

education budget.** This was even further below the incrementally growing budget that all 

had come to expect. The result had enormous 

consequences for further Administration proposals. The entire education lobby was alienated in one swift blow. The Administration’s 

action succeeded in overshadowing the deep 

cleavages within the education community by 

focusing attention on the common denominator of funding. In effect, it robbed itself of 

a major political resource for advancing future 

initiatives: 

Instead of exploiting the many potential divisions within the education 

groups and within Congress, the Administration’s budget posture created 

an unprecedented sentiment for 

unity.23 

In response to the budget cuts, over 70 or46 
ganizations formed the Emergency Committee 

for Full Funding of Education Programs to lobby their cause. It included the entire range of 

affected interests: the major teacher organizations, the school board association, state school 

officials, Catholic and other religious groups. 

civil rights groups. the higher education lobby, 

the representatives of libraries, handicapped, 

and instructional material manufacturers, etc. 

The formal chairman of the body was Eisenhower’s former HEW Secretary, Arthur Fleming. The chief organizer and lobbyist, however, was Charles Lee, former staff member of 

the Senate Education Subcommittee [and, 

with former Sen. Wayne Morse. a key architect 

of the federal education effort]. 

Lee directed a massive grassroots lobbying 

effort at Congress. Included were “swarms” of 

volunteer constituents-teachers, principals. 

school board members, librarians-buttonholing Congressmen and packing the galleries 

during floor debates and votes. As Lee explained at the time: 

Our strategy consists of providing 

opposition Congressmen with backup 

information.. After all we’re not 

talking about some insignificant group 

of people. Teachers are one of the 

nation’s largest voting blocs. In 1972. 

the next Presidential election year, 

there will be more teachers than farmers at the polls.24 

Working through the summer and fall of 1969, 

the lobby succeeded in gaining a $1 billion 

increase over the Nixon Administration’s proposed education budget, overriding the prestigious Appropriations Committee on the House 

floor in the process. 

The President vetoed the education and 

health appropriations bill on prime time television in January 1970, and the Administration 

mobilized its own lobby effort of House Republicans in order to prevent a veto override. 

President Nixon refused to spend the additional money even if it were appropriated. The 

Administration’s efforts proved successful as 

the override attempt failed, but that success 

proved temporary. Since fiscal 1970 was already half over by that time, the President 

was forced to accept a subsequent emergency 

appropriation bill containing $500 million more 

than his education budget requested. This was 

increased another $450 million several months 

later when Congress passed the fiscal 1971 appropriation. President Nixon again vetoed the 

bill, but an “angry” Congress, facing re-election, overturned the veto. A major Congressional-interest group initiative had thus overcoma stiff executive opposition and maintained 

incremental growth in the education budget. 

Shortly thereafter, budgetary battles commenced once more. The Administration’s 

budget for fiscal 1973 remained stable despite 

inflationary erosion. Responding to the Congressional mood, the normally conservative 

House Appropriations Committee approved a 

major budget increase. With the support of the 

still active Full Funding Committee, the House 

added an additional $364 million on the floorprimarily for Title I but including aid to libraries, impact aid, adult education, and other 

programs. The Senate increased this further, 

and the House-Senate conference agreed to 

an $800 million increase over the Nixon budget. 

Making this an election issue, the President 

vetoed the bill on August 16, 1972. This veto 

was sustained. as was a subsequent veto of a 

$300 million increase. Following his 1972 reelection victory, President Nixon embarked on 

a new attempt to control expenditures through 

impoundment. The resolution of this issue 

shifted action to the courts. 

EDUCATION AND THE POLITICS OF 

RACE: LIMITING FEDERAL 

DESEGREGATION ACTIVITY 

Active promotion of racial desegregation by 

the Executive Branch halted after the Nixon 

Administration came to office in 1969. Nixon 

had attacked these policies during the 1968 

election and signaled his intentions when he 

appointed John Mitchell, campaign manager 

and architect of his “Southern Strategy.” to the 

post of Attorney General. The Administration 

began by avoiding education fund cutoffs for 

noncompliance with the Civil Rights Act. When 

the courts prohibited backsliding in the rural 

south. however, the Administration shifted its 

focus to busing and began supporting the foes 

of urban desegregation in Congress. Antibusing 

amendments came to dominate Congressional 

and public attention in education, overshadow47 
ing other important issues and programs 

through the early 1970s. 

In March, 1970, the Administration proposed 

a $1.5 billion program to aid school districts 

undergoing court-ordered desegregation. The 

so-called “Emergency Education Act” was to be 

a temporary program, intended mainly for the 

south. “to reward while helping the white south 

in its enforced surrender to integration.“25 Importantly for urban areas. it prohibited using 

the money for desegregation busing. 

Senate liberals changed this bill into one that 

would promote integration; the antibusing provision was removed. Liberal ranks in the 

House, however. were split over the beginnings 

of court-ordered desegregation in the north. As 

a result: 

The House went wild in a late evening session on November 4.1971. Members showed that they would pass anything labeled antibusing by giving 

whopping margins to a whole series of 

drastic limitations on both the courts 

and Executive Branch civil rights 

officials.26 

The House added to the emergency aid bill a 

moratorium on court-ordered desegregation. It 

forbade the use of any federal funds to support busing and forbade executive use of Title 

VI to halt education funding of school districts 

violating a court busing order. 

The Administration endorsed these House 

actions. It proposed additional legislation to 

limit court-ordered desegregation, including 

restrictions on legal remedies and the reopening of busing cases in the south. The Senate, 

however, ignored the President’s proposals 

and so qualified the House amendments as to 

make them meaningless or ineffectual. Despite 

repeated “instructions” from the full House to 

stand firm, the liberal House conferees worked 

with the Senate to neutralize the antibusing 

amendments. Greatly modified, the Emergency 

School Assistance Act, which was the major 

categorical program initiated by the Nixon 

Administration, was signed by an “angry” 

President.27 

The President’s proposal to limit court-ordered desegregation and busing, entitled the 

“Equal Educational Opportunities Act,” was 

passed by the House late in 1972. again by very 

wide margins. Lacking the votes to defeat it, 

Senate liberals adopted an earlier civil rights 

tactic from their southern conservative opponents. They filibustered the bill to death. 

The busing issue returned. however, in 1974. 

Led by the Michigan delegation and supported 

by the Administration, the House again passed 

the sweeping antibusing amendments of 1971, 

overcoming all attempts at compromise. The 

amendments were again defeated in the Senate-by a one-vote margin-and the bill was 

modified in conference. Restrictions on the use 

of federal funds for busing were adopted, and 

HEW enforcement powers were weakened, but 

the limitations on the courts were softened. 

Once more, liberal influence in the Senate and 

in the House Education and Labor Committee. 

from which the House conferees were drawn, 

obstructed Administration and House attempts 

at civil rights retrenchment. Orfield concludes 

of this period: 

The school issue showed the change 

between Presidential and Congressional leadership in civil rights., 

The Eisenhower and Kennedy Administrations had gone to Congress for 

additional authority. and President 

Johnson had used that authorfty 

vigorously. President Nixon, however, 

came asking for a retreat. Though the 

Senate had long been the bastion of 

southern power, it was now the main 

arena for defense of school desegregation initiatives. The House seniority 

syste? had long been accurately denounced as a major barrier to racial 

justice. but it now served to protect 

civil rights programs from a hostile 

House majority.28 

EDUCATION REVENUE SHARING: 

REDUCING THE FEDERAL ROLE 

Education Revenue Sharing (ERS) was the 

third component in the Nixon Administration’s 

challenge to the established federal role in 

education. Although related conceptually and 

circumstantially to the budget and racial controversies, ERS constituted a far more comprehensive challenge. It proposed consolidating 

48 
all of the major federal grant programs in education into one large grant-in-aid to the states. 

Funds would be distributed automatically 

through a formula with almost total control 

over the objectives and uses of aid given over 

to the states. Representing a coherent alternative to the categorical tradition in aid to education, ERS had enormous implications for the 

federal role in education. Yet. it was not, in the 

end, a very influential proposal. It was so widely and totally dismissed throughout the education community that it never became the focus 

of controversy it potentially was. 

The immediate roots of ERS can be traced to 

a proposal made by Acting Commissioner of 

Education Terre1 Bell in the fall of 1970.29 

Prior to assuming federal office, Bell had been 

state education commissioner in Utah, where 

he had become concerned with the degree of 

federal intrusion into education. As he established a task force in OE to explore the concept 

further. Secretary Elliot Richardson endorsed 

the idea in a speech to the Council of Chief 

State School Officers in November 1970.30 The 

proposal was then picked up by the White 

House and incorporated into President Nixon’s 

massive “Special Revenue Sharing” initiative 

of 1971.3' 

The education revenue sharing (ERS) plan 

proposed consolidating 33 separate education programs into one $2.6 billion grant program.32 Funds were to be distributed to the 

states according to a formula based on need 

and population. States were given broad authority over the use of funds, establishing their 

own priorities and objectives. Federal earmarks were established in the program, however, to direct state efforts into five general 

areas: assistance for educationally disadvantaged children. for handicapped children, for 

vocational education, for support services, and 

for federally impacted areas. 

The ERS proposal was almost totally rejected 

by the Congress and educational interest 

groups. Rep. Carl Perkins [D-KY), Chairman of 

the House Education and Labor Committee, 

compared the program to “throwing money 

down ratholes.” Rep. Edith Green [D-OR], 

who had sponsored decentralization proposals 

in 1967, called the proposal a “farce,“3 

The opposition of certain interests had been 

expected. Groups like the audiovisual manufacturers or bilingual aid supporters predictably opposed the consolidation of existing 

categorical programs in their area of interest. 

However, r:>ajor support that might have been 

mobilized Lnder other circumsfances was not 

cultivated. ‘The Chief State School Officers 

and the National School Boards Association 

indicated varying degrees of support for the 

concept but did not campaign actively for the 

plan. Crucial groups like the NEA could have 

gained from unrestricted federal aid but opposed ERS. 

There were several reasons for this broad 

opposition. First. prior Administration positions in education had alienated potential allies. Budget cuts, in particular, had aroused 

grave suspicion of the Administration. ERS was 

interpreted by many in the education field as a 

new budget control instrument. These suspicions were reinforced by impact aid cuts that 

were reflected in the block grant plan. As Rep. 

Quie (R-MN) observed: 

Consolidation is politically acceptable 

only if it carries the possibility of more 

money. The Administration approach 

appeared to mean less money.as 

Similarly. Rep. John Brademas (D-IN) argued 

that consolidation simply required more 

IIIOIEY “To spread that modest amount of 

federal money more broadly, and not target 

it seems to me to be pouring a glass of water 

on the Sahara.“36 

Other issues were also important. Many interpreted the rhetoric on federal control to 

mean federal withdrawal on civil rights. The 

ERS plan would have been subject to Title VI 

of the Civil Rights Act, but the Administration 

was limiting enforcement of this provision. 

Parochial school officials also opposed the 

plan, as they had the Quie block grant in 1967. 

for fear of reopening religious controversies 

that had been laid to rest. Despite their opposition to federal regulations, local and state 

school officials were divided over ERS since 

each level of government had its own distinct 

interests in education. Local officials disliked 

state control and regulation as much as federal 

regulation. and they generally preferred to 

maintain direct federal-local ties to education. 

Finally, members of Congress, even Republi49 
cans like Quie, had not been consulted over 

the ERS plan. Most Congressmen resisted losing what control they had over existing federal 

aid. The targeted, categorical, innovative approach to federal aid reflected the views of 

many members that state and local educators 

had failed in certain areas of education. Eliminating categorical aid restrictions would simply 

reinforce local educational priorities that Congress disavowed. In short, ERS would have 

altered both the structure and rationale of 

federal aid as it had evolved with great difficulty over a long period of time-without, as 

Orfield observes, “providing any clear benefits.“J’ 

ERS received a dismal reception in Congress 

in 1971. Despite this, the plan was reintroduced 

in subsequent years with little change. It continued to be ignored by educators and Congressional policymakers alike. Confident from 

its heady victory in the 1972 election, the Administration offered its 1973 version of the 

plan-“The Better Schools Act” as an all-ornothing proposition in education.38 Yet, 

months later. it continued to be ignored on 

Capitol Hill, and the take-it-or-leave-it stance 

was quietly abandoned. 

Fear of a Presidential veto of education legislation in 1974, however, led to Congressional 

initiation of a smaller compromise consolidation in that year. In a House-Senate compromise, seven categorical programs were 

consolidated into two broader programs, including: guidance and counseling and audiovisual assistance programs from NDEA and 

state aid, supplemental centers. and library 

assistance from ESEA.39 This was a largely 

symbolic gesture with little impact on federal 

involvement in education. A beleaguered President accepted it, however, as “an important 

first step.“‘0 Even the symbolism was largely 

obscured by debate over antibusing amendments which overshadowed the 1974 education 

act. 

THE NIXON-FORD YEARS 

EVALUATED 

Despite years of continual challenge, the 

fiscal role of the federal government in education emerged from the Nixon-Ford years SWprisingly unchanged. In Orfield’s view: “The 

50 

Great Society drive that had dramatically increased the federal role in education.. gave 

way to trench warfare over the basic framework of that role. Congress’ achievement was 

to preserve that framework.“4’ On the one 

hand, none of the most significant avenues for 

expanding or reshaping the federal role were 

taken. The federal government did not assume 

a one-third share of financial support for education as the NEA advocated. The federal government did not assume a major new role in 

equalizin ’ educational expenditures as many 

advocated after the Serrono v. Priest case. in 

which the California Supreme Court, relying 

on both the state constitution and the U.S. Constitution, ruled that the “quality of public education may not be a function of the wealth 

of.. a pupil’s parents and neighbors.“‘2 Nor 

did the federal government adopt a leading 

role in advancing metropolitan desegregation. 

Rather. incremental program development 

continued throughout the Nixon-Ford years. 

This can be seen clearly in the case of programs for the handicapped and bilingual eduTable 8 

FUNDING HISTORY 

OF BILINGUAL EDUCATION 

AND STATE HANDlCAPPEb 

PROGRAMS, 1969-76 

(in millions of dollars) 

St?& 

Handicapped 

YBLV Bilingual Education Programa 

1969 $ 7.50 529.74 

1970 21.25 37.48 

1971 25.00 46.13 

1972 35.00 56.38 

1973 45.00 75.96 

1974 66.35 85.78 

1975 85.00 87.86 

1976 96.27 95.87 

%liS do** not include federal aid to handicapped children 

provided under the Education cd the “andrcapped *cc which 

by 1976 was providing additional funds 01 $10 million. 

SOURCES: HOUSB Canmiftee on Education and Labor, S”b 

committee on Elementary. Secondary, and “ocafional mucation. Hearings on HR 15. Part 3: Bilingual Ed”caf;a”, pp. 424. 

425 and Hearings on HR 15. Part 14: nus I--smte Hand;- 

capped Program. 95th cm& ,*t sess.. 1977. p. 165. 
cation. for example. Each was fairly small in 

1968 but had grown to substantial size by 1976. 

Despite the struggle over categorical assistance 

and education budgets, both had appropriations approaching $100 million by that time 

(see Table 8). 

FOOTNOTES 

7Quoted in Frederick M. Wirt and Michael W. Kirst. The 

Politico1 Web of American Schools. Boston, MA, Little. 

Brown & co., 1972, p. 153. 

%e Milbrey Wallin McLaughlin, Evaluation and Reform: 

The Elementary and Secondary Education Act of 1965, 

Title I, Santa Monica, CA, Ranp Corporation. 1974. 

in Education: Federal Impact on State Agencies, Chicago. 

IL, Public Administration Service. 1971. p. 52. 

‘aEdith K. Masher. “Education and American Federalism: 

Intergovernmental and National Policy Influences.” in 

Jay Scribner, ed. The Politics of Education, Chicago, IL, 

National Society for the Study of Education, 1977, p. 118. 

**Quoted in Orfield. Congressional Power. op. cit., p. 154. 

‘OIbid., p, 134. This section rests heavily on his account. 

*‘Ibid., p. 133. 

*vhi,+ n. 136. ----.. r~ ~-~~ 

“Ibid., p. 137. 

ZlQuoted in Lucille Eddinger. “CPR Lobby Profile: Full 

Funds for Education?,” Notional Journal. Washington. DC. 

November 1. 1969. p. 49. See also “Administration, Lobbies Put Pressure on Capitol Hill to Vote ‘Right’ on Veto,” 

Notional Journal. Jan&,, 24.1970. 

z%hn Osborne. ouoted in Orfield. Connressional Power. 

op. cit., p. 174.’ ’ 

=Ibid., p. 179. 

z’lbid., p, 182. P.L. 92-318. Title VII. 

*‘Ibid.. p. 80. 

2gEd Willingham, “Nixon Administration Seeks Massive 

Change in Federal School-Aid Procedures.” National 

lawnal, Washin~Lan. DC. February I&1971, p. 324. 

albid., p. viii. 

IJulie Roy Jeffrdy, Education for the Children of the Poor. 

Columbus. OH, Ohio State University Press, 1978. pp. 167. 

173. 

@McLaughlin, op. cit., pp. 40-41. 

‘See Jeffrey, op. cit.. p. 167. 

TExpenditures of $509 to $809 per child appeared lo be the 

range necessary for successful programs. rather than the 

average $113 per child provided under Title I. Ibid.. p. 109. 

‘Wirf and Kirst. op. cit., pp. 163-164. 

-Jeffrey, op. cit., p. 191. 

‘ONafional Institute of Education. Title I Funds Allocation: 

The Current Formula. Washington. DC, U.S. Government 

Printing Office, 1977. p. vii. - 

l,Ibid.. pp. 93-94. Although the south, with its high concentration of eligible (poor) children, receives less per eligible child, it receives by far the most Title I dollars per 

school-age child. Furthermore. the region as a whole receives almost twice the Title I funds of any other region. 

Ibid,, pp. 13. 17. On Title I equalization, see also Bedenbaugh and Alexander. op. cit., pp. 277-280. 

-‘McLaughlin. op. cit., p. 23. 

‘,leffre”. OD. cit.. D. 136. 

4vlurph~. bp. cii.: p. 174. 

?lRuby Martin and Phyllis McClure. Title I of ESEA: Is It 

Helping Poor Children?, Washington, DC. Washington Research Project of the Southern Center for Studies in Public Policy and the NAACP Legal Defense and Education 

Fund. 1969, p. 52. As the management and enforcement 

systems of ESEA have developed since the late 1960s, and 

as local districts have come to fully recognize that Title I 

is not a program of general aid. such abuses have been 

considerably diminished. See comments on the recent administration of ESEA in Donald W. Burnes, “A Case Study 

of Federal Involvement in Education,” in Mary Frase 

Williams, ed.. Government in the Classroom, New York, 

NY. The Academy of Political Science, 1978, p. 89. 

-6Wirt and Kirst write that “lT]he performance of the 

states varies enormously. often depending. on the particular state political culture.” Op. cit., p. 159. See also 

Joel S. Berke and Michael W. Kirst. Federal Aid lo Education: Who Benefits? Who Governs?, Lexington, MA, D.C. 

Heath & Co., 1972. 

“Burton Friedman and Laird Dunbar, Grants Management 

anibid. 

atThis was a series of six large consolidations of existing 

federal programs in community development, employment and training. transportation, rural development. law 

enforcement, and education. 

3sH.R. 7796 and S. 1669,92d Gong.. 1st Sess.. 1971. 

SaQuoted in Karen DeWitt. “Administration Revenue-Sharing Plan Unlikely to Get Passing Grade from Congress,” 

Notional Journal. Washington, DC, March 24,1973. p. 421. 

s*Quated in Orfield, Congressional Power, op. cit., p. 166. 

a@Quoted in ibid., p. 163. 

*nOwted in ibid.. D. 186. 

l&d.. p. 197. . 

3aFor example, Assistant HEW Secretary Sidney Marland 

announced in January 1973, that alternatives to ERS were 

“irrelevant.” “We stand an ERS. live or die.” Quoted in 

DeWitt. op. hf.. p. 418. 

3eP.L. 93-389, Title IV. See Stafford Smiley, “The Elementary and Secondary Education Amendments of 1974,” 

Harvard Iournal on Legislation, 12. Cambridge. MA, April 

1975. pp. i47-494. 

‘aQuoted in Orfield, Congressional Power, op. cit., p. 169. 

“Ibid., pp. 164-165. 

%errono Y. Priest, 483 P.2d 1241, 1244 [Cal. 1977). The U.S. 

Supreme Court, in a separate case-Rodriguez v. San Antonio-refused to uphold the principle elaborated in the 

Serrano case. See discussion of the Rodriguez case in the 

next chapter. “The Role of The Federal Courts in Education.” 

51 

Chapter 7 

The Role 

Of The Federal Courts In Education 

T he federal judicial role in education has become 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 effectively carried out. The roots of this 

new judicial function can be traced to 

about 1950, when erosion of the “classical 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 Constitutional requirements of the First 

and Fourteenth Amendments.z 

53 
Table 9 

FEDERAL COURT CASES AFFECTING 

SCHOOL ORGANIZATION, 

ADMINISTRATION, OR PROGRAMSa,, 

1789-1971 

PWbd 

ins-lsssb 

1697-1906 

1907.1916 

1916-1926 

1926-1936 

1936-1948 

1946-19% 

1658-1966 

1967-lS71C 

Federal Cowl 

cases d 

50 

15 

22 

44 

67 

88 

112 

729 

1.273 

The judicial role in education has grown in 

both scope and scale. The increased influence 

of the courts on educational policy over time 

can be clearly seen in Table 9, which traces the 

trend in legal cases affecting education. In the 

five-year period from 1966 to 1971, there were 

nearly twice as many education cases as in the 

decade from 1956 to 1966 and approximately 

ten times as many cases than the 1946 to 1956 

period.’ Correspondingly. the scope of court 

involvement has grown as well. Besides a central focus on race discrimination in education, 

court decisions affect major issues of church 

and state, student and teacher rights, and curriculum. 

THE JUDICIAL ROLE IN 

SCHOOL DESEGREGATION 

The era of a major role for the courts in educational policymaking can be traced most directly to the Supreme Court’s decision in 

Brown v. Board of Education’ in 1954, in which 

the Court declared segregated schools to be 

“inherently unequal” and thus in violation of 

the Fourteenth Amendment of the Constitution.5 This began the school desegregation effort that revolutionized elementary and secondary education in the south and that has led 

in recent cases to intense court involvement in 

the daily operations of certain schools throughout the country. 

The degree of judicial intervention in educational administration did not increase immediately following the Brown decision. Rather, it 

evolved over the course of the next 15 to 20 

years. A degree of precedent for Brown, itself, 

had been incrementally developed in a series 

of cases concerning education before 1954.6 The 

unequivocal ruling of Brown departed from 

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 implementing great policy pronouncement.. 

Aside from its quite indefinite instructions on speed, the Court issued some 

equally indefinite instructions on the 

substance of desegregation plans.7 

The task of enforcing local desegregation 

during this time was left to lower federal courts 

responding to complaints filed against individual school districts. From time to time, the 

Supreme Court made unequivocal pronouncements on the unconstitutionality of dual school 

systems, but it left the specifics of implementation largely unexamined. Orfield describes the 

limitations that characterized this mode of enforcement: 

The lawyers’ effort was prodigious 

but the results were meager, although 

eventually they did manage to eliminate the unconstitutional “massive resistance” laws in most states. The 

desegregation process began in larger 

54 
districts. The pace [was] accelerated 

slightly. by a supportive Kennedy 

government, but only about one black 

child in 50 was in a desegregated 

school after ten years.8 

Accordingly, effective enforcement of desegregation largely awaited the Civil Rights Act of 

1964, which established new enforcement 

mechanisms (such as federal aid cutoffs under 

Title VI) and provided federal enforcement 

personnel in the Departments of Justice and 

HEW. This proved fairly successful in the rural 

south where blacks and whites often lived in 

close proximity: 

The enforcement of the 1964 law 

broke the logjam of resistance. By the 

end of the Johnson Administration 

most of the rual south had desegregated and the Executive Branch initiative had stimulated much tougher 

judicial requirements.9 

After 1966. the locus of desegregation efforts 

began shifting back to the federal courts. While 

the Departments of Justice and HEW diminished their desegregation activities under the 

Nixon Administration,‘0 the Supreme Court 

became increasingly active in questions of implementation. Although lower court implementation of Brown had often been slow, by the 

late 1960s there had developed conflicting 

techniques and interpretations of implementation which required clarification. In 1968. the 

Supreme Court declared unconstitutional 

“freedom of choice” and “free transfer” desegregation plans which served to undermine 

integration. It required integration plans that 

“promise.. to work now.“” In 1969, the 

Court pronounced an end to the policy of “all 

deliberate speed” and declared that “the obligation of every school district is to terminate 

dual school systems at once.“12 In 1971 the 

Court upheld the use of citywide busing to 

achieve integration of a major urban school 

system.13 And in 1973, the Supreme Court accepted a broader definition of discriminatory 

practices in education with major implications 

for the north.34 

As defined by this series of cases, the current 

Constitutional policy concerning racial discrimination in education is that dual systems of 

education are unconstitutional. The concept of 

“state action,” which is crucial in distinguishing 

de jure from de facto segregation-and thus 

establishing violation of the Fourteenth Amendment, has been broadened in cases such as 

Keyes. It now includes both the maintenance 

of segregated schools, previously common in 

the south, as well as less extreme methods like 

racially motivated student assignments and 

school siting more typical of discrimination in 

the north (as in Denver and Boston). Similarly, 

the legal remedies available to redress discriminatory practices have been expanded to 

include a broad arsenal of techniques. ranging 

from court-ordered busing to determining 

teacher assignments, hiring patterns, school 

construction. and educational programs. Thus, 

the scope of federal court involvement in education where factors of racial discrimination 

are present has grown extraordinarily large, as 

major Constitutional scholars agree: 

As southern school administrators 

compiled a record of bad faith and delay, black groups presented more and 

more detailed desegregation plans to 

the district courts for imposition on 

those administrators. . . 

Implementation became administration in the most literal sense. Litigation 

took the form of presenting alternative 

detailed desegregation plans with the 

judge choosing one or the other or devising his own combination. The district judge thus came to make decisions 

on such things as school personnel 

management, building maintenance, 

attendance reporting, and so on.15 

Local governance of the schools in 

some districts in the south has been 

critically circumscribed (if not virtually eliminated] where it has been 

used by the people to perpetuate discrimination based on race. So fundamental a matter as the right of a school 

district governing board to sell property has been placed under the necessity for prior court approval, as has 

the decision to build and where to lo55 
cate new school buildings, the appointment of principals and other key 

school personnel, and so forth. 

In the area of school governance, 

therefore, the requirements of the new 

equal protection encompass almost the 

whole of the state Education Code.. .j6 

I” major metropolitan areas the 

court decrees that require extensive 

busing in order to achieve racially balanced schools have all the qualities of 

social legislation: they pertain to the 

future; they are mandatory; they govern millions of people: they reorder 

people’s lives in ways that benefit 

some and disappoint others in order to 

achieve social objectives. I can think of 

no earlier decrees with these characteristics in all our Constitutional history.” 

It is noteworthy, however, that some potential expansions of federal involvement have 

not been developed. Most importantly, the 

distinction between de jure and de facto segregation has not been abandoned, despite the 

broadening interpretation of what constitutes 

state action. To date, de facto segregation has 

not been declared unconstitutional, even 

though it is the primary cause of educational 

segregation in the north. Furthermore. the 

Supreme Court has resisted expanding desegregation efforts to include entire metropolitan 

areas. Unless direct and substantial involvement in discriminatory practices can be traced 

to surrounding communities, the Court is unwilling to overrule considerations of local 

autonomy in education.18 

OTHER EQUAL PROTECTION ISSUES 

Following the successful application of the 

Equal Protection Clause to cases of racial 

segregation. recourse to the newly receptive 

courts was attempted by a number of other 

groups claiming educational discrimination. 

They argued that the legal reasoning that prohibited discrimination based upon race also 

applied to discrimination on the basis of mental or physical handicap, linguistic ability, sex, 

or wealth of neighborhood. 

Beginning in 1970, parental challenges to 

local education practices that excluded handicapped children from a public education on the 

grounds that they could not profit from an education began to meet with succass. Two precedent-setting right-to-education lawsuits, decided on the basis of the Fifth and Fourteenth 

Amendments, were Pennsylvania Association 

for Retarded Children [PARCJ v. Commonwealth of Pennsylvanio~* in 1971 and Mills v. 

Board of Education of the District of Columbi@ in 1972. In the former, PARC brought a 

class action suit on behalf of all mentally retarded children in a federal district court. The 

consent decree in that case stated that “providing free education to nonhandicapped children 

while depriving youngsters with mental handicaps of an equivalent right established a colorable constitutional claim.“21 The Mills suit 

shortly thereafter extended the “right to an 

education,” as well as due process protection, 

to all handicapped children, not just the retarded. Both of the cases, it should be noted, 

were decided prior to the passage of either 

Section 504 of the Rehabilitation Services Act 

of 1973 or the Education for All Handicapped 

Children Act of 1975. * 

Other groups, such as non-English-speaking 

students and girls and women have not met 

with such unequivocal success in their claim 

to a Constitutional guarantee of equality of 

educational opportunity, although clear-cut 

cases of gross discrimination have been outlawed. For instance, a potential expansion of 

the equal protection rationale has not been developed in cases relating to sex bias in education. In particular, the Supreme Court has not 

included sex with race in the special category 

of “suspect classifications” which demand 

“strict scrutiny” under the Equal Protection 

Clause. Such a classification would shift the 

burden of proof in sex discrimination cases 

from the normal presumption in favor of the 

questioned educational policy, requiring a 

plaintiff’s demonstration of Constitutional 

violation, to a presumption opposed to any 

sexual classification, absent a demonstration 

of overriding state interest in the policy. Given 

the difficulty of defining sexual equality in 

cases other than those involving a demonstra56 
ble exclusion, the courts have tended to rely 

on the Legislative and Executive Branches to 

address most of the sex discrimination questions. Thus, the task of the courts has become 

one of interpreting the broad language of legislation such as Title IX rather than the language 

of the Equal Protection Clause. In these cases, 

however, the courts have appeared willing to 

uphold the withdrawal of federal funds where 

grant recipients fail to comply with federal 

law.22 

A similar pattern is evident in the Supreme 

Court’s decision regarding bilingual education 

in Lou v. Nichols.23 In this case, the Court held 

that the City of San Francisco violated Title VI 

of the Civil Rights Act by failing to provide 

special education for non-English-speaking 

children of Chinese descent. This ruling has 

meant that all schools that receive federal 

grants are contractually bound to provide some 

type of special instruction to non-Englishspeaking children by virtue of the Civil Rights 

Act. Importantly, however. the Court did not 

base its decision on the Fourteenth Amendment, as the plaintiffs had requested, nor did 

it require bilingual education as the only possible remedy. It thus rendered the issue suhject to Congressional alteration through a 

change in the law. One legal scholar argues 

that this “choice of legal standards was not inconsequential.“*’ Rather, 

Lau’s reliance on federal statute 

rather than the Equal Protection 

Clause may have presaged a new mode 

of interplay between courts and legislatures. The courts have established 

Constitutional minima concerning most 

of the equal opportunity claims. It is 

now the province of the political system to give more detailed meaning to 

the minima and to secure the resources 

needed for their implementation.25 

The judicial unwillingness to expand equal 

protection guarantees has been most pronounced in the area of educational finance. 

The Supreme Court’s position was clearly enunciated in San Antonio v. Rodriquez in which 

the Court refused to overturn the Texas system 

of educational finance on equal protection 

grounds.26 The plaintiffs in this case argued 

that reliance on the local property tax to finance education produced such broad disparities in educational spending among school 

districts as to preclude equal treatment under 

the laws. Since the properly tax is used widely 

throughout the country to finance education, 

the implications of this case for the structure 

and operation of American education were 

~IlOlTIlOUS. 

The Supreme Court, however. repudiated 

this Constitutional interpretation. It refused to 

apply the suspect classification to the educationally deprived. Moreover, it declared that 

education, while important, is not a basic Constitutional right.27 It thus held that a decentralized system of education may reflect a 

legitimate state interest: 

The Constitutional standard under 

the Equal Protection Clause is whether 

the challenged state action rationally 

furthers a legitimate state purpose or 

interest.. We hold that the Texas 

plan abundantly satisfies this standard.28 

Perhaps in response to the difficulties of desegregation cases. and lacking surer Constitutional guidance, the Court also argued that it 

lacked capacity to make judgments iq this area 

superior to those of state and local authorities2* For all of these reasons, it chose restraint over an extension of Fourteenth Amendment guarantees to the area of educational 

finance. 

There is a certain irony in the Court’s responses to the plaintiffs in these cases. Most of 

the groups pressing claims have received a 

sympathetic hearing by the Court and frequently a favorable ruling. Many of the decisions, in 

fact, have had tremendous operational and 

financial implications for school districts. At 

the same time, the hope of educational reformers that equal opportunity goals could be 

achieved more quickly and more completely 

through the courts than through the political 

process has not been realized. The courts have 

become increasingly uneasy about expanding 

Constitutional guarantees in the face of subtle 

and controversial questions of equal protection, and there appears to be a growing sensitivity to the limitations of judicial solutions to 

political problems of distributive justice. 

57 
THE FIRST AMENDMENT CASES: 

RELI’GION AND FREE SPEECH 

Another major area of judicial involvement 

in American education involves First Amendment issues. There are two broad categories 

here: [l] Issues of church and state, based upon 

the establishment and free exercise clauses of 

the Constitution, which read: “Congress shall 

make no law respecting a” establishment of religion, or prohibiting the free exercise thereof.” 

These clauses have important implications for 

parochial school finance and public school curriculum and procedures. (2) Issues concerning 

freedom of expression in the schools, derived 

from the Constitutional dictate: “Congress shall 

make no law.. abridging the freedom of 

speech.” Largely by virtue of recent cases, this 

clause now has implications for educational 

issues like free expression by students and 

teachers and certain other matters of student 

rights. 

RELIGION AND THE SCHOOLS 

Apart from racial discrimination, this may be 

the most important and far reaching area of 

court involvement in education. The object of 

court activity has been to balance the potentially conflicting implications of the establishment and free exercise clauses. On the one 

hand, the Supreme Court has not allowed governmental support of a particular religion or 

religion in general. On the other hand, the 

Court has sought to avoid a situation of governmental hostility toward religion. This tension has led the Court to experiment with a 

number of legal guidelines in this area: a wall 

of separation between church and state, governmental neutrality, and no excessive entang1ement.30 

One cluster of religious cases has dealt with 

questions of governmental aid to parochial 

schools. This issue created long-standing political difficulties for Congress in the development of federal aid to education, and it has 

proved complicated for the courts as well. In 

Everson Y. Boord of Education, 31 the Supreme 

Court upheld a New Jersey law allowing public transportation reimbursements to parents of 

parochial (as well as public] school children. 

The Court has also upheld: 

l the granting of tax exempt status for property used only for religious purposes,*2 

. the lending of state-approved textbooks to 

parochial school students.33 

However, direct state aid to parochial schools 

has been held unconstitutional, as has a state 

program of tuition tax credits to parents of 

parochial school children.34 

A second cluster of religion cases has involved educational curriculum and procedures. 

Since 1920, the Court has affirmed the right of 

parents to send their children to private rather 

than public schools, although this right is not 

absolute.35 The Court has also upheld Yeleased time” programs of religious instruction 

in which students are allowed to leave public 

schools for a portion of the school week to attend religious instruction elsewhere.36 In a tremendously controversial case. however, the 

Supreme Court struck down state laws requiring recital of prayers in the public schools.37 

The Court declared that only the “objective” 

study of religion. “part of a secular program of 

education,” would be permissible in the public 

schools.38 State laws that prevent the teaching 

of Darwinian theories of evolution have also 

been held unconstitutional.39 

With the number of conflicting decisions on 

religious questions. attempting to determine 

the composite influence of the Court dn the 

church-state issue in education is difficult. 

One scholarly observer has concluded that, on 

balance, the Court’s decisions have been 

weighted toward secularism: 

With the exception of permitting states 

to provide bus transportation and 

books to students attending private 

schools, the Supreme Court has religiously struck down all other attempts 

to aid sectarian elementary and secondary schools. Further, the objective 

study of religion.. seems to encourage a mental attitude of distance and 

reservation with regard to religion, the 

very opposite of commitment. The implicit message. is. that religion 

should be approached from the outside, as a cultural phenomenon. 

Thus, despite the Supreme Court’s 

statement that public schools may not 

promote a religion of secularism, its 

58 
rulings in many respects seem to leave 

the schools with no alternative but to 

offer at least a nonmilitant form of secularism:0 

EDUCATION AND FREE SPEECH 

This area has been less developed Constitutionally than church-state relations, but certain 

issues have been ruled on here. In general, the 

Supreme Court has dealt with questions involving free expression by students and teachers 

and the extent to which schools can impose certain ideas and values on students and teachers, 

versus promoting an educational “marketplace 

of ideas.“” Specifically, the Court has ruled 

that state laws requiring students to salute the 

flag or pledge allegiance violate the First 

Amendment.‘* Much more recently, the Supreme Court has recognized the right of students to express political beliefs in school in a 

nondisruptive manner, such as wearing m-mbands to protest the Vietnam War. The Court 

declared that “It can hardly be argued that 

either students or teachers shed their Constitutional rights to freedom of expression at the 

schoolhouse gate.“‘3 

Similarly, state laws requiring that teachers 

disclaim membership in the Communist Party 

or disavow advocacy of the violent overthrow 

of the U.S. government have been found unconstitutional, although teachers can be required to pledge to uphold the Constitution.44 

The Supreme Court has also upheld teachers 

wearing armbands and refusing to salute the 

flag. As Tyll van Gee1 summarizes the Court’s 

holdings on free speech in education: “[T]o an 

extent, the schools must remain open forums 

for the expansion of political ideas-even 

those with which the school board officials 

disagree.“‘5 

THE JUDICIAL ROLE IN EDUCATION: 

AN OVERVIEW 

Federal court involvement in elementary 

and secondary education has grown enormously in recent decades. The courts have become 

deeply involved in certain areas like race discrimination. and the scope of issues touched on 

by the courts has grown broad. As van Gee1 

argues. however, the depth of judicial involvement in many areas is shallow and irregular: 

The breadth of involvement of the 

federal courts in shaping the educational program to which children may 

be exposed is impressive.. They involve themselves in the religious, political, and cultural content of the school 

program as well as concern themselves 

with the minimal adequacy of the 

school program.. But breadth of involvement should not be mistaken for 

depth of involvement. In many respects 

the courts have restrained themselves. 

placing sharp limits on how far they 

are willing to go in executing these 

various roles.4B 

A marked tendency toward judicial modesty 

now characterizes many Supreme Court decisions: 

Many of the post Rodriquez decisions reveal a renewed respect for the 

shadowy but nonetheless real demarcation between Constitutional problem 

solving and problem solving generally.. Today, courts are inclined to 

stay their hand, relying on the political 

process to resolve questions of distributive justice as these affect the allocation of particular goods such as education:’ 

Thus, while the courts will remain important 

federal actors in elementary and secondary 

education, the judicial boldness of earlier 

decades seems to have moderated since the 

Rodriquez decision. 

FOOTNOTES Interest. Lexington, MA, D.C. Heath 8 Co.. 1874. pp. Q-10. 

‘Ibid., p. 7. 

lQuoted in Michael W. Kim, ed., The Politics of Education 

01 the Local, State. and Federal Levels. Berkeley. CA. 

McCufchan Publishing Corp.. 1870, p. 322. 

‘John C. Hogan, The Schools. The Courts. and The Public 

‘347 U.S. 430 (1854). 

‘This reads. in part: “No slate shall, deny to any person within its jurisdiction the equal protection of the 

laws.” 

*Sweott v. Painter. 339 U.S. 829 (1950); and McLaurin Y. 

59 
Oklahoma State Regents, 339 U.S. 637 (1950). 

‘Martin Shapiro and Douglas Hobbs, The Politics of Constitutional Law, Cambridge, MA, Winthrop Publishing Co.. 

1974, p. 509. 

‘Orfield, Must We Bus?, op. cit., p. 362 

3Ibid. 

‘nIbid.. pp. 280-281. 

“Green Y. County School Board, 391 U.S. 430 (1968). Monroe Y. Board of Commissioners, 391 U.S. 377 [I%%), quoted 

in Shapiro and Hobbs. op. cit., p. 522. 

x2Alexunder Y. Holmes City Board of Education, 396 U.S. 

19 (1969]. quoted in ibid. 

‘“Swarm Y. Charlotte-Mecklenburg, 402 U.S. 1 (1971,. 

“Keyes Y. School District #I, Denver CO, 413 U.S. 189 

119731. 

i’ihapiro and Hobbs. op. cit.. pp. 510. 511. 

“Hogan. op. cit., p. 155. 

“Archibald Cox, The Role of the Supreme Court in Americon Government, New York. NY, Oxford University 

press, 1976, p. 77. 

18Milliken Y. Bradley, 418 U.S. 717 (1974). 

“Pennsvlvania Association for Retarded Children fPARCl 

Y. Co~manweolth of Penn~ylvanio, 343 F. Supp. 2?9 1E.D: 

PA, 1972, (consent decree). 

2QMills Y. Board of Education of the District of Columbia, 

348 F. supp. 866 (D.D.C. 1972). 

2’David L. Kirp. “Law. Politics. and Equal Educational Opportunity: The Limits of Judicial Involvement.” Harvard 

Educational Review. 47, Cambridge, MA, May 1977, p. 130. 

**Ralph Stern. “Public Education.” The Urban Lawyer, 

10. Summer 1978. p. 503. 

2aLau Y. Nichols, 414 U.S. 563 (1974). 

zAKirp. op. cit.. p. 134. 

-Ibid. 

“Son Antonio Independent School District Y. Rodriquez, 

411 U.S. 1 (1973). 

““Education. is not among the rights afforded explicit 

protection under our federal Constitution. Nor do we find 

any basis for saying it is implicitly so protected.” Son Antonio Y. Rodriquez. in Shapiro and Hobbs. op. cit.. p. 481. 

**lb& p. 483. 

‘gIbid.. pp. 481482. See also joel S. Berke, Answers to Inequity: An Analysis of the New School Finance, Berkeley. 

CA, McCutchan Publishing Corp.. 1974. 

‘OShapiro and Hobbs. op. cit.. p. 240. 

w30 U.S. 1 (1947,. 

32Walz Y. Tox Commission, 397 U.S. 644 (1970). 

‘lBoard of Education Y. Allen, 392 U.S. 371 (1971). 

“Lemon Y. Kurtzman. 403 U.S. 602 f19711. and Committee 

for Public Education and Religious iib&y Y. Nyquist, 413 

U.S. 756 119731. 

3’For example, the schools must meet state standards. 

Pierce v. Society of Sisters, 268 U.S. 510 (&WI]. 

‘%rach Y. Clouson. 343 U.S. 306 (19%). 

“Engel Y. Vitale. 370 U.S. 421 (X%2]. 

%chaol District of Abington Y. Schempt. 374 U.S. 203 

(1963). in Shapiro and Hobbs, op. cit., p. 254. 

‘9Epperson v. Arkansas. 393 U.S. 97 (1968). 

-Tyll van Geel, Authority to Control the School Program, 

Lexington, MA, Lexington Books, 1976. pp. 29.22. 

“Ibid. 

4ZWest Virginia State Board of Education Y. Barnette, 319 

U.S. 624 (1943). This was one of the early cases in which 

the Court began extending the provisions of the Bill of 

Rights to the states, by virtue of the Fourteenth Amendment. 

‘aTinker Y. Des Moines School District, 393 U.S. 503 (1969). 

quoted in Shapiro and Hobbs, op. cit., p. 428. 

*‘Keyishian Y. Board of Regents. 385 U.S. 589 (1967). 

“Tyll van Geel, op. cit., p. 28. 

‘sfbid.. pp. 41.42. 

*‘Kirp. op. cit., pp. 132, 136. 

60 
Chapter 8 

Contemporary Issues Of Federal 

Involvement In Education 

B. y the end of the lwos, the agenda of educatmnal 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 disfil 
mantled what little program consolidation had 

been established in the 1974 amendments and 

created some 16 new special-purpose programs, 

such as metric education-illustrating the continuing Congressional preference for categorical progranx2 

In large part the focus of controversy shifted 

away from ESEA because. although state and 

local discretion in the administration of ESEA 

had been reduced. it is still relatively well 

funded. In contrast, some of the newer regulatory programs impose huge costs on states and 

local school districts but provide little federal 

reimbursement. Thus. the focus of controversy 

has shifted to federal regulation of education. 

Additional items on the education agenda by 

the end of the decade were the creation of a 

federal department of education and the attempted enactment of elementary and secondary tuition tax credits. Both issues could well 

have important implications for the federal 

role in education in future years and will be 

discussed in more detail in this chapter. 

FEDERAL REGULATION OF 

ELEMENTARY AND SECONDARY 

EDUCATION: A CONTINUING 

CONTROVERSY 

As previously shown, federal control of 

education has been a matter of concern from 

the earliest federal aid proposals. Federal 

regulation has been a central issue of implementation since 1965. Initial regulations resulted largely from three factors already discussed: the categorical character of ESEA. the 

requirements of program evaluation. and the 

Title VI civil rights provisions. Recently, however, additional regulations and grant conditions have been attached to federal aid to education, mostly of an “across-the-board” nature 

(thus, applying to federal assistance in general]. 

These new regulations have prompted a recent 

article entitled “The Federal Takeover: Should 

the Junior Partner Run the Firm?,” in which 

the Illinois Superintendent of Schools writes: 

state and local taxes together still 

account for more than 90% of the dollar outlay for public schools in this 

nation. Yet the amount of federal regulation has increased in ways disproportionate to the amount of federal 

dollars received. [S]lowly, inexorably, and incrementally, the federal government is taking over education. Especially since 1965, the country 

has moved-almost every year-toward a national system of education., By 1980 the phenomenon of 

“federal takeover” may appear to be 

an understatement of the problem.3 

This represents a powerful indictment of current federal policies in education. It is largely 

based on new federal laws requiring increased 

educational access and services for the handicapped, new protections of student rights. and 

various protections against race and sex discrimination. Numerous problems have been 

associated with such requirements, including: 

*Large scale costs of compliance: new laws 

benefiting the handicapped have been 

identified as particularly expensive, posing 

“a huge financial burden for school districts.“’ 

*Alteration of local priorities and procedures: this includes providing new programs and services for federal farget 

groups [like the mentally and physically 

handicapped]: equalizing services and programs, as in the case of girls’ sports under 

Title IX; and adopting new procedures on 

the access and distribution of student records under the Buckley Amendment. 

*Vast amounts of new paperwork: the 

House Committee on Education and Labor 

has noted that: 

The enormous amount of paperwork 

involved in administering federal education programs has become a major 

source of complaints from state and 

local participants in federal programs. One state superintendent 

testified that federal education programs are responsible for 84% of the 

data burden in that state, although the 

federal government provides only 7% 

of the state’s total funds for education.5 

62 
Although it is difficult to gauge the genuine 

extent and seriousness of problems caused by 

federal regulatory efforts, the situation so confounds the traditional notion of local control 

of education that it demands close examination. 

RECENT ADDITIONS TO 

FEDERAL REGULATION 

New regulations affecting elementary and 

secondary education include both measures 

aimed specifically at educational institutions 

and across-the-board regulations which affect 

the broad range of federal grant recipients. An 

example of the former is the federal regulation 

that addresses sex discrimination practices in 

education. Title IX of the Education Amendments of 1972 states that no person: “shall, on 

the basis of sex, be excluded from participating 

in, be denied the benefits of, or be subjected to 

discrimination under, any educational program 

or activity receiving federal financial assistance.“6 At the elementary and secondary level. 

this act has had particularly important implications for vocational, athletic, and extracurricular programs. For example, the provision of 

equal sports facilities and programs for girls 

has been a major focus of attention. 

Another example of a recent regulation 

aimed at educational institutions is the Family 

Educational Rights and Privacy Act of 1974 

(FERPA], or the Buckley Amendment.’ This act 

concerns access to student records in the local 

schools. Specifically, it requires that schools 

permit student and parental assessment of the 

accuracy of records, while at the same time 

limiting disclosure of records to others. 

An example of an across-the-board requirement affecting federal grant recipients is the 

Rehabilitation Services Act of 1973, which requires that federal grant recipients provide 

increased access to the handicapped. Section 

504 of the act states that “no otherwise qualified individual shall be excluded from 

participation in. any program or activity receiving federal financial assistance.“8 This act 

has been supplemented in elementary and 

secondary education by the Education for All 

Handicapped Children Act of 1975.9 Among 

other things, this law requires that participating 

states provide a “free and appropriate education” to all handicapped children and that local 

school authorities prepare an individualized 

educational program for each handicapped 

child. It also establishes due process procedures to guarantee the educational rights of 

handicapped students and promotes the “mainstreaming” of handicapped children.‘0 The 

funding formula authorized the federal government to pay for 5% of the cost of services in the 

first year, with the percentage increasing to a 

permanent 40% in 1982. However, because appropriations have not equaled the authorization levels, the federal government is currently 

subsidizing only 12% of the cost to states and 

local school districts. 

THE POLITICS OF REGULATION 

There is general agreement that Congress has 

been primarily responsible for most of the 

recent regulatory provisions in education. 

Cronin is absolute on this point: “[T]he Congress, far more than HEW, has written in the 

need for dozens of new reports and regulations.“” Samuel Halperin, former Assistant 

Secretary of HEW, agrees, adding that growing budgetary pressures in Washington have 

made regulation increasingly attractive: 

Congressmen see themselves as having been elected to legislate. Confronted with a problem and a sho&g 

that other levels of government are 

“defaulting,” their strong tendency is 

to pass a law. Ten years ago, money 

was Washington’s antidote for problems. Now, the new fiscal realities.. 

mean that Congress provides fewer 

dollars. Still determined to legislate 

against problems, Congress uses sticks 

instead of carrots.‘2 

The crucial Congressional role in educational 

regulation can be seen in the legislative histories of these laws. Title IX of the Education 

Amendments of 1972,‘3 which prohibits sex 

discrimination in educational admissions, facilities, and practices. was authored by Rep. 

Edith Green (D-OR) following Congressional 

hearings that indicated sex discrimination 

problems in education.” For the most part, 

education groups considered the issue of relatively minor importance.‘s In fact, apart from 

63 
its effect on college admissions, the implications of Title IX were overlooked by Congress 

as well as the interest groups. As Fishel and 

Pottker explain: 

Without any organized opposition, 

and with Green pressing hard for 

adoption, the conference committee 

quickly adopted Title IX without giving 

much consideration to its eventual 

impact.” 

It was treated mainly as a symbolic gesture, 

leaving legislative intent undefined: 

When Congress passed Title IX in 

1972, it was voting for a general principle of equality; the specific implications of the law were understood by 

few members of Congress., Congress made no attempt to provide a 

clear and complete definition of what 

constituted sex discrimination in education. As a result, the real public debate on the issues involved in eliminating sex discrimination followed, rather 

than preceded, the passage of the 

law.” 

Hasty Congressional consideration characterized other regulatory enactments as well. 

FERPA was introduced and adopted as a floor 

amendment to the General Education Provisions Act of 1974 by Sen. James Buckley (RNY). Stimulus for the law came from studies 

and court cases documenting recordkeeping 

abuses in elementary and secondary education.‘a However, the amendment “had not 

been the subject of Congressional hearings,” 

and “professional educators were not involved 

in drafting the original legislation or even 

aware of its existence.“‘9 It originally proved 

so defective that it was amended by Congress 

within a matter of months. 

Section 504 of the Rehobilitotion Act, which 

prohibits discrimination against the handicapped by federal grant recipients, presents 

another example. 

[It1 was subjected to no public hearings and few floor debates of any substance.. Moreover the scanty legislative history and broad language of 

the provision prevented federal agencies from developing regulations and 

required Congress to further define its 

intent in a 1974 amendment to the Rehabilitation Services Act.20 

Even the Education for AI1 Handicapped Children Act, which was four years in the making 

and the object of a massive lobbying campaign 

by special educators and parents of handicapped children, was passed by Congress over 

strong Presidential objections. The original 

impetus of the act was twofold. First. it was 

designed to assist handicapped children whose 

needs were not being met by the states. Congress was concerned with reports that half of 

the nation’s handicapped children were receiving an inadequate education and that many 

were receiving no education at a1L2 Secondly, 

it was designed to relieve the fiscal pressures 

on states and localities resulting from court 

cases dealing with the education of handicapped children. 22 The act provided grants to 

support the education of the handicapped, 

while drawing heavily on the legal decisions 

for objectives and procedures in the law.23 

The Ford Administration opposed the legislation for two reasons. It first of all believed 

the provision of education to the handicapped 

to be a state and local responsibility.24 Secondly, it opposed the large authorizations proposed in the bill-over $2 billion in the Senate by 1979. almost $4 billion in the House. A 

veto was threatened. In response, the legislation’s authorizations were drastically reduced 

(to $100 million in 19761, and the federal role 

was altered from relieving the state-local fiscal 

burden to providing an “assist.” Despite the 

concern about the regulatory aspects of the 

legislation, which were retained despite the 

massive cuts in authorizations, the bill passed 

Congress by huge majorities and was reluctantly signed by President Ford. 

Thus, Congress has clearly dominated in the 

formulation of regulatory policy in education. 

Frequently, the legislation to emerge from Congress has been vaguely worded and hastily 

considered, leaving the bureaucracy with the 

difficult task of interpreting and implementing 

the law. Executive Branch agencies are often 

confronted by strong Congressional statements 

64 
of lofty purpose. with little guidance for weighing costs and benefits in implementing them. In 

the case of FERPA. the Privacy Commission Report observed that: 

Because there had been no national 

debate or public hearings on the measure, and only a minimum of Congressional debate, neither the affected 

parties,. nor the Department of 

Health, Education, and Welfare, which 

had to develop regulations to implement the act, received much guidance 

on the manner in which the act should 

be interpreted.25 

The same was true of Title IX: 

Because of the absence of an extensive legislative history, exactly what 

Congress had intended when it passed 

the law was unclear in many areas. 

Because of the absence of any kind of 

consensus, DHEW policymakers felt 

free to decide issues as they thought, 

best from legal and policy perspective.xz6 

The failure of Congress to weigh the trade-offs 

inherent in regulatory provisions may not 

be corrected in the agency charged with enforcement. Rochelle Stanfield suggests that this 

has been the case with regulations on the handicapped: 

[The] head of the technical assistance unit of the [HEW] Office of 

Civil Rights. argues that. the costs 

[of the section 504 regulations] are irrelevant. because basic civil rights 

are involved. His colleague. who 

wrote Sec. 504 regulations added: 

“Someone’s rights do not depend upon 

someone else’s ability to pay. It is a 

matter of the right to participate in 

American society.“2’ 

The regulatory measures have aroused considerable concern among state and local education 

officials, as the comments of State Superintendent Cronin, noted earlier. make clear, and 

the Congress has not been altogether impervious to this critical political feedback. Various 

measures to address regulatory problems have 

been advocated or advanced. The Buckley 

Amendment underwent some alteration. and 

Title IX was nearly modified by Congress as 

well. Education block grant proposals continue to be offered as solutions to federal regulation, although they have fared poorly in 

Congressz8 

More importantly, these critiques of federal 

involvement have influenced the reauthorization of federal aid. To date, fundamental 

changes in programs and regulations have not 

been made, but the Congress has shown increased sensitivity to regulatory problems. 

Hearings were held by the House Education 

Subcommittee on Paperwork Problems in Federal Aid.** As the Committee report observed: 

The committee has uncovered instances of inefficient, duplicative, and 

useless federal data collection which 

can be remedied without harming 

the integrity of federal data collection.30 

The 95th Congress passed several provisions 

for reducing federal paperwork requirements. 

such as allowing a single state plan for all education programs.31 In April 1980, the Department of Education issued general regulations 

that apply to all direct grant and state-administered education programs. The new regulations seek to consolidate and simplify more 

than 1,000 separate program regulations and 

definitions, many with differing requirements, 

into one set of regulations. Although these actions only begin to address the regulatory issue, they do suggest a potential for response. 

A FEDERAL DEPARTMENT OF 

EDUCATION 

In 1975, as a Presidential candidate, Jimmy 

Carter promised to create a separate department of education to bring more visibility to 

educational issues and better coordination 

among federal education programs. Carter’s 

pledge helped to earn him the first NEA Presidential endorsement in history. Rather than 

uniting the education community, however. the 

65 
reorganization proposal only served to widen 

existing divisions-between the traditional professionally oriented NEA and the labororiented American Federation of Teachers 

(AFT], between the elementary and secondary 

education groups and the higher education 

groups. between public school supporters and 

private or parochial school supporters. and 

among the multitude of organizations that 

represent a particular clientele group [such as 

handicapped children or ethnic minorities] 

and compete for a limited education budget. 

The AFT opposed a separate department as 

did the National Catholic Education Association, several higher education groups and 

prominent university presidents. and a variety 

of labor and civil rights groups. The NEA. on 

the other hand, led a broad coalition of 

groups. including five other major elementary 

and secondary education groups.32 several 

major higher education groups, many of the 

advocates for special categories of children, 

and some labor groups such as the United 

Auto Workers. 

The education community agreed that education suffered from low visibility within the 

bureaucracy, that education programs were 

poorly coordinated, and that funding levels 

were inadequate. The source of contention 

was, and still is, how these problems can be 

alleviated.33 Proponents of the reorganization 

argued that a cabinet-level secretary would 

give education greater prestige, and ultimately 

a larger budget.34 In their view, the inclusion 

of education within HEW resulted in execssive 

cuts because education represented an abnormally large proportion of the department’s 

“controllable” expenditures: 

The allocation of resources that occurs within a department where uncontrollable increases amount to $15 

to $20 billion annually is unfavorable 

to a fair consideration of the education 

budget, most of which is controllable 

and therefore bears the brunt of downward budgetary pressures.35 

In addition, many argued that an education 

department represented a more rational approach to the administration of federal education programs. Because education and related 

programs were scattered across a number of 

different federal agencies and departments, 

coordination was difficult to achieve. Moreover, they argued, the organization of education programs within HEW was inefficient. 

Most authority for administering federal education programs was vested in the Office of the 

Commissioner of Education, which was organizationally subordinate to the feeble post of 

Assistant Secretary for Education in HEW. 

On the other hand, some opponents of the 

proposal within the education community argued that what strength education did have 

rested on its coalition with labor and civil 

rights groups. They feared that if education was 

removed from HEW that coalition would suffer, leaving education in a weaker position. 

While admitting to the lack of coordination 

among federal education programs scattered 

throughout the more than 40 federal agencies, 

the coalition against the department believed 

there were less drastic ways to achieve coordination and reduce duplication, such as enhancing the authority of the already existing coordinative mechanism, the Federal Interagency 

Committee on Education. Finally, they argued 

that rather than increasing the budget for 

education, passage of a new department would 

substitute for increased funding of education 

programs. I 

Vigorous opposition to the department also 

came from various constituencies of programs 

slated for inclusion. Veterans opposed the inclusion of the large Veterans Administration 

student assistance program in the department; 

civil rights groups opposed placing Head Start 

and civil rights enforcement personnel in the 

department; Indian groups opposed the addition of Indian education programs; many science and higher education representatives 

opposed the addition of NSF programs; and 

nutritional groups opposed the inclusion of 

child nutrition programs. All feared the disruption of traditional relationships in a new organizational environment and the subjection of 

their priorities to those of the new departmenLz6 

Within the Carter Administration, support 

was uneven. For instance, Joseph A. Califano. 

then Secretary of HEW, was adamant in his 

opposition to the plan and argued that it would 

eliminate any possibility of coordinating edu66 
cation programs with those in health and welfare. Several of the agencies with programs 

that might have been moved to the new department, such as the National Science Foundation, 

also voiced their opposition to the proposal. 

On the other hand, many top education officials, the Office of Management and Budget 

(OMB), and the White House Staff favored it. 

Given the lack of unanimity in the Executive 

Branch, without President Carter’s active support it is likely that the proposal would have 

failed as did the 130 previous Congressional 

proposals for a separate department. 

In Congress, the proposal gained more favor 

in the Senate than the House. A bill that would 

have included many of the disputed programs 

was pushed by Sen. Abraham Ribicoff [D-CT] 

in 1978. Although several of these programs. 

including child nutrition and Indian education, 

were dropped from the bill in floor consideration, the legislation passed the Senate. However, it died in the House due to insufficient 

time at the close of the session.*’ 

By the time the legislation was reintroduced 

in spring 1979, the opposing sides had readied 

themselves for a long and intense battle. A 

scaled-down version of the bill again was 

passed in the Senate, as the fight in the House 

intensified. House opponents argued vociferously that a new department would not improve administrative problems, especially 

since the bill now excluded most of the programs outside of HEW. Conservatives maintained that its creation would result in increased federal regulation and control of 

education, despite the supposed safeguards in 

the bill. According to one report. “Opponents 

are primarily concerned that creation of the 

department would result in complete federal 

elimination of traditionally independent local 

schools.“38 The Carter Administration, laying 

aside intangible issues like visibility and 

prestige, focused its arguments on the management question. OMB Director lames T. McIntyre. ]r., forcefully argued before Congress 

that establishment of a separate department 

would allow increased savings in administrative costs, reductions in personnel, and the 

elimination of several layers in the bureaucracy. Even then, the bill cleared the House 

Government Operations Committee by a single 

vote, and on the House floor, opponents tacked 

on a series of controversial amendments permitting prayers in the schools, banning busing, 

and prohibiting affirmative-action quotas in a 

last-ditch effort to prevent passage. Amid great 

uncertainty among interested parties, the bill 

finally passed the full House by a margin of 

only four votes. Following more procedural 

delays, final legislation was approved in Conference where the controversial House amendments were quietly dropped.s9 

As finally passed, the new Education Department (ED] consists of the programs formerly 

housed in the education division of HEW as 

well as HEW’s Rehabilitation Services Office, 

and the education and vocational rehabilitation 

responsibilities of HEW’s Office of Civil Rights. 

In addition, the Defense Department’s overseas dependent schools, several science education programs from the National Science Foundation, and the college housing loans programs 

from the Housing and Urban Development Department were transferred to ED. Absent from 

the new department are the Head Start program. veterans education, Indian education, 

child nutrition programs, and the major education programs of the Labor Department. 

Early signals indicate that the struggle to 

implement the new department will prove as 

difficult as its passage. Secretary Shirley M. 

Hufstedler must attempt to reconaruct the 

fragile coalition of interests that was ripped 

apart in the bitter enactment battle. According 

to one commentator. “months of heated lobbying on the measure split some longtime allies 

and united some traditional enemies.“40 Many 

of these groups and much of the education 

bureaucracy are already alienated because 

Hufstedler chose a top management team made 

up of many noneducators and aIso failed to 

solicit as much input from the lobbyists and 

bureaucrats as they would have liked.” Additionally, after only a few months on the job. 

she invoked the wrath of several key members 

of Congress by ignoring their disapproval of 

regulations for four education programs. In a 

strongly worded letter urging the Secretary to 

reconsider, Rep. Carl Perkins [D-KY) stated 

that, “We can think of no more arrogant ccmrsa 

of action for the Administration to take. We 

can also think of no more irresponsible action 

which you and your department can take.“‘2 

Moreover, President Ronald Reagan promised 

67 
during his election campaign to work for the 

elimination of ED should he he elected. If 

these early signs are a clue to the future, the 

department may find itself in a difficult political position in an environment increasingly 

hostile to social programs in general and education programs in particular. 

TUITION TAX CREDITS 

In 1978, Congress came close to approving a 

program of federal tuition tax credits that 

would have applied to both postsecondary and 

elementary and secondary education. The proposal, if approved, would have provided a 

credit against the federal income tax for every 

full-time student enrolled in any eligible educational institution. Bills to provide tuition tax 

relief to college students and their parents had 

passed the Senate three times before, but each 

time they were blocked in the House Ways 

and Means Committee.43 What was new in 1978 

was the extension of the bill’s benefits to 

parents of elementary and secondary students. 

If passed, the legislation would have represented a major new federal financial commitment to education. Supporters are expected to 

continue their struggle in the 1980s. Because an 

elementary and secondary education dredit 

would provide an incentive for more parents 

to send their children to private schools, the 

tax credit has tremendous implications for the 

balance between public and private education. 

In 1978. a Congressional election year dominated by “Proposition 13 tax-cutting fever,” 

support for tuition tax credits grew among 

House members. A bill extending benefits to 

both private school students and postsecondary 

students was passed by the House in June of 

that year. The bill would have allowed families of private school students to deduct a maximum of $50 of their tuition costs from their 

federal income tax, with the limit rising to 

$100 by 1979. College credits were once again 

passed by the Senate, but a major lobbying 

effort by the Carter Administration and by the 

public school lobby blocked the elementary 

and secondary school proposal in that chamber. A conference committee compromise 

failed when the House voted down the legislation because it lacked the elementary and 

secondary credits. With any form of tax credit 

facing a Carter veto, an Administration-backed 

expansion of college student grants and loans 

to include middle class families was passed in 

the waning moments of the 95th Congress.‘* 

Supporters of the tuition tax credits included 

both Republicans and Democrats, the latter 

being largely parochial school proponents:5 

Catholic educators, faced with declining parochial school enrollments, lobbied vigorously 

for the measure, arguing that the very existence 

of their parochial school system was at stake. 

They argued that tax credits would promote 

educational diversity and competition by halting the steady decline in the number of private 

schools. Additionally, the credits have tremendous political appeal since they would provide much needed tax relief to the middle class. 

However. according to its defenders, the credit 

would not work to the advantage of only the 

middle class, because it would allow many 

more minority group members to attend nongovernment schools. Finally, by not requiring 

new bureaucracies or paperwork, it was argued, tax credits would not contribute to 

governmental growth. As Sen. Packwood (ROR), a chief sponsor of the legislation, wrote: 

Stripped of the veneer, the sole issue 

is a question of philosophy: Should we 

leave the choice [of educational a&istancel to the individual, given the simple incentive on the income tax or 

should we leave the decision to hureaucrats with the maze of regulations 

and forms that come with direct government grants?” 

Opponents of the tax credit include many 

liberal Democrats as well as many members of 

Congress who oppose parochial school aid. In 

the past, some fiscal conservatives have also 

opposed the tax credit concept as an enlargement of federal involvement in education. Puhlit school supporters working through the National Coalition to Save Public Education, a 

coalition of some 40 elementary and secondary, 

labor, civil rights, and other organizations, 

mounted a late-starting but massive lobbying 

effort during the 1978 legislative struggle. They 

argued that tuition credits would undermine 

the public schools by subsidizing middle class 

and white flight from the schools, while adding 

68 
to the number of substandard private schools, 

especially those established to avoid integration. Moreover, they argued, that like nearly 

all tax credits the benefits would accrue to the 

middle and upper classes, rather than the 

needy, and therefore would represent a dramatic shift in federal school aid away from 

equalizing opportunity and toward general assistance. Another concern was the cost of the 

measure. which the Congressional Budget Office estimated would reach $1.797 billion in 

three years. Opponents disputed claims that the 

credit would not increase bureaucracy and 

paperwork. pointing to the need for certification of private school students qualifying for 

the credit. Finally, opponents of the measure 

argued that it constituted a violation of the 

Constitutional separation of church and state, 

an issue on which the Supreme Court has yet 

to rule definitively. Se”. Ernest F. Hollings 

(D-SC) summed up the arguments of the opponents this way: 

Careful study convinced ma that that 

proposal would turn our nation’s education policy on its head, benefit a 

few at the expense of many, proliferate substandard segregation academies, 

add a sea of red ink to the federal deficit, violate the clear meaning of the 

First Amendment of the Constitution, 

and destroy the diversity and genius of 

our system of public education.“’ 

On the advice of HEW, Treasury, and OMB officials, President Carter opposed the enactment 

of tax credits at any level of education. His 

threatened veto was an important obstacle to 

passage. 

Despite the 1978 failure of the bill, support 

for tuition tax credits and other forms of private educational assistance is still alive. Sen. 

Daniel P. Moynihan (D-NY] attempted in 1980 

to attach an amendment to the “Higher Education .Reauthorization Bill” that would have extended eligibility for the Basic Educational Opportunity Grants to students in private 

elementary and secondary schools. The Senate, however, rejected the amendment by a 

solid margin despite Moynihan’s argument that 

his proposal differed from the 1978 bill by 

focusing benefits on families with incomes of 

less than 5~0,000. 

In the 198os, the issue of tuition tax credits 

is likely to remain on the agenda, especially if 

disenchantment with the, public schools and 

with increased taxes continues to grow. What 

form the debate will take is unclear, but it is 

certain to remain highly charged. j 

FOOTNOTES 

‘See. far instance: Nalional Institute of Education. Compensatory Education Study: A Final Report from the Notionnl Instifufe of Educofion. Washington, DC, U.S. Government Printing Office, 19’78; James J. Vanecko and 

Nancy L. Ames, Who Benefits from Federal Education 

Dollars?. Cambridge, MA, Abt Books. no date: Burnes, 

op. cit.: and Robert Goettel. “Federal Assistance to National Target Groups: The ESEA Title I Experience,” in 

Michael Timpane. ed.. The Federal Interest in Financing 

Schooling, Cambridge. MA, Ballinger. 1979. pp. 1X3-208. 

“Albert L. Alford. “The Education Amendments of 1978,” 

American Education, 15, March 1979, pp. 6-14. See also 

David G. Savage. Education Lows of 1978. Arlington. VA, 

National School Public Relations Association. 1978. 

“Joseph Cumin. “The Federal Takeover: Should the Junior 

Partner Run the Firm?.” in Samuel Halperin, ed., Federolism at the Crossroads: Improving Educational Policymaking, Washington. DC, Institute for Educational Leadership, 1976. pp. 2-3. 

‘New York Times. January 39, 1978, p. 1. 

rHouse Committee on Education and Labor, Excerpt of o 

Report on the Educational Amendments of 1978, 95th 

Gong.. 2nd Sess. 119781, e. 134. 

4.L. 92-318, 

‘P.L. 93.389, as amended by P.L. 93.568. 

0P.L. 93.112. 

‘P.L. 94.142. 

Wew York Times, February 15. 1978. p. A-31. 

“Cronin, op. cit.. p. 4. 

‘*Samuel Haloerin. “Federal Takeover. State Default. Or a 

Family Problem?.” in Halperin. ed.. op. cit.. p, 19. 

‘aFor a more extended discussion of Title IX. see Volume 

VI of this report. The Evolution of o Problematic Portnership: The Feds ond Higher Ed. 

“U.S. House of Represenfatives. Hearings Before the 

House Special Subcommiftee on Education. Committee 

on Educofion ond Labor, Discrimination Agains Women. 

91st Gong., 2nd Sess. (1979). 

‘IEdith K. Masher. Anne H. Hastings. Jennings L. Wagoner, Jr., Pursuing Equal Educational Opportunity: School 

Politics and the New Activists, New York, NY, ERIC 

Clearinghouse on Urban Education, 1979, p. ‘21. 

“Andrew Fishel and Janice Pottker. National Politics and 

Sex Discriminolion in Education. Lexington. MA, D.C. 

Heath and Co.. 19%‘. p. 191. 

“Ibid., p. 193. 

“Russell Sage Foundation. Guidelines for the Collection. 

Maintenance, ond Dissemination of Pupil Records, Report 

of a Conference on the Ethical and Legal Aspects of 

School Record Keeping. June 12.14. 1972: National Committee far Citizens in Education, Children, Parents, and 
School Records, 1974. 

‘*From “Personal Privacy in an Information Society: The 

Report of the Privacy Protection Study Commission.” 

reprinted in U.S. House of Representatives. Hearings Before the Subcommittee on Elementary. Secondary, and 

Vocational Education of the Committee on Education and 

Labor on H.R. 15, Part 9: Family Educational Rights and 

Privacy Act of 1974. 95th Gong.. 1st Sass. (19771, pp. 130. 

131. 

20Advisory Commission on Intergovernmental Relations. 

Categorical Grants: Their Role and Design. Report A-52. 

Washington, DC, U.S. Government Printing Office, 1978. 

p. 237. 

~‘Congressionol Quarterly Almanac, 1975. Washington, DC. 

Congressional Quarterly Service, 1976. p. 651. 

‘zSee above section entitled “Other Eoual Protection 

Issues.” 

“JoAnn Englehardt. “The Education of All Handicapped 

Children Act: Opening the Schoolhouse Door.” New York 

University Review of Low and Social Change, 6, Winter 

,9m “~ 46~ 

--~ -. r. --. 

z’Congressional Quarterly Almanac, 1975. op. cit.. p. 653 

Illbid. 

2”Fishel and Pottker. op. cit., pp. 197. 115. 

“Rochelle Stanfield. “Brinninn the World to the DisabledThe Feds Start to Get To&h?’ National lournal, Washington. DC, February IS. 1978. p. 273. 

*‘A recent education block grant amendment offered by 

Rep. John Ashhrook (R-OH) failed in the House by a vote 

of 79.290. Notably. however. such proposals would not 

have much effect on across-the-hoard regulations. 

*W.S. House of Representatives. Hearings before the Subcommittee on Elementary. Secondary, and Vocational 

Education of the Committee on Education and Labor 

on H.R. 15. Part 2: Paperwork Problems in Elementary 

and Secondary Education, 95th Gong.. 1st Sess. (1977). 

aOCommittee on Education and Labor. op. cit.. p. 135. 

“Alford. op. cit., p, 11 and Savage, op. cit.. p. 112. 

ITogether with the NEA. the American Association of 

School Administrators, the Council of Chief State School 

Officers, the National Association of State Boards of Education, the National Congress of Parents and Teachers, 

and the National School Boards Association are known 

as the “Big Six.” 

%ee Rochelle Stanfield. “There’s a Lesson to he Learned 

Over a Department of Education,” National Journal. 

Washington. DC, ]uly 23, 1977, pp. 1149.1153. 

“Harrison Donnelly. “Separate Education Department 

Proposed.” Congressional Quarterly Weekly Reports, 

April 22. 1978, p, 990. 

3”Rufus Miles. Jr., quoted in Congressional Record (daily 

edition). Washington, DC, February 28. 1978. p. 52564. 

a6Bill Peterson, “Education Fight: ‘Turf’ Politics of Reorganization,” Washington Post, january 17.1978. p. A-Z. 

3Warrison Donnelly. “Education Department Opponents 

Force Bill Off House Schedule,” Congressional Quarterly 

Weekly Reports, Washington, DC. October 7, 1978, p. 2752. 

3Ybid. 

‘5ee Rochelle Stanfield. “Getting the E Out of HEW-The 

Trauma Has Only lust Begun.” National Journal. Washington, DC, October 6, 1979. pp. 1649-1651: Rochelle Stanfield, 

“They’ve Taken the E Out of HEW-But Its New Home 

Isn’t Ready Yet,” Notional Journal, Washington, DC. 

March 1. 1980. pp. 352.356; and Harrison Donnelly, “Education Department Wins Final Approval,” Congressional 

Quarterly Weekly Reports, Washington. DC, September 

29.1979, p. 2112. 

‘%tanfield. “Getting the E Out of HEW.” op. cit., p. 1649. 

“See Christopher Connell. “Hufstedler at the Wheel,” 

Change, 12. April 1980, pp. 40-41, and Samuel Halperin. 

“The Department of Education: Last hut Not Least,” 

Change, 11, November-December 1979. pp. 35.37. 

IThe complete letter is reprinted in Education Times, 

)une 16,1980, p. 1. 

“See Congressional Quarterly. Congress and the Notion, 

Volume 11. op. cit., p. 72. 

“See “Tuition Tax Credit Fails Under Veto Threat.” Congressional Quarterly Almanac. 1978. Washington, DC. 

Congressional Quarterly Service, 1979, pp. 245.256. 

45Rochelle Stanfield. “Education Report: The Taxpayers 

Revolt. Education Aid for Everybody?” Notional Journal, 

Washington. DC. April 1. 1978. pp. 509.514. Senator Robert 

Packwood. “The Accessible Dream: Financing Educational Needs.” Commonsense. 1, Summer 1978. pp. 39.62. 

“Bob Packwood. “Tuition Tax Credits: A Philosophical 

Question,” letter to the Washington Post, April 27, 19%. 

“Ernest F. Hollings, “The Case Against Tuition Tax Credits.” Phi Delta Koppon. 60, December 1978, p. 277. For a 

fuller treatment of the pros and cons of tuition tax credits. 

see also: Daniel Patrick Moynihan, “The Case for Tuition 

Tax Credits.” Phi Delta Koppan. 60, December 1978, pp. 

274-276; Rochelle Stanfield, “The Taxpayers’ Revolt. Part 

II-Education Aid for Everybody?” Notional Journal. 

Washington. DC. April 1, 1978, pp. 509.514: Rochelle Stanfield. “Political Maneuvering Over Tuition Tax Credits.” 

National Journal. Washington. DC, luly 22. 1978. pp. 1157. 

1159: Albert Shanker, “Tuition Tax Bill Must Be Defeated” [weekly advertisement of the AFTI, New York 

Times, March 5. 1978: David W. Breneman and Susan C. 

Nelson, “Education and Training,” in loseph A. Pechman, 

ed.. Setting Notional Priorities: Agenda for the 1980s. 

Washington, DC, Brookings Institution. 1980. pp. 217.220. 

70