Education Two Part Assignment due Sep 1

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Chapter Two

Federal Role in Education

The Tenth Amendment to the federal Constitution states that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Since public education is not mentioned in the federal Constitution, it is presumably re- served to the states or to the people. Therefore, federal involvement in public education is an indirect role and emanates from three sources:

1. The general welfare clause of the Constitution 2. The commerce clause of the Constitution 3. Actions by federal courts enforcing federal constitutional provisions

protecting individual rights and freedoms

EDUCATION AND GENERAL WELFARE

Article I, section 8 of the Constitution states, “The Congress shall have the power to lay and collect taxes, duties, imports and excises, to pay the debts and provide for the common defense and general welfare of the United States.” In subsequent cases, the Supreme Court has ruled conclusively that Congress can tax and spend under the general welfare clause. The courts have said that the general welfare concept is not static but flexible, and Congress may tax and expend money for general welfare so long as it does not demonstrate a display of arbitrary power. With this elastic definition of general welfare, Congress is free to define education as general welfare and to tax and appropriate funds for educational purposes.

The federal government influences education under the general welfare clause by providing grant money to states for educational purposes. The states are not obligated to accept the grants. However, if the states acquiesce

Bradley, Leo H.. School Law for Public, Private, and Parochial Educators, Rowman & Littlefield Publishers, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/franklin-ebooks/detail.action?docID=5059833. Created from franklin-ebooks on 2024-08-29 14:43:11.

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Chapter 212

and accept the grant money, they also accept the rules and regulations put forth in the grant. Therefore, federal influence is inserted into schools, both public and private, since most federal grants offer the opportunity for in- volvement by both types of schools.

In recent decades, the federal government has increased its involvement in education by including extensive accountability measures within its grant proposals. These accountability measures are so strong that they have begun to dictate specific conditions in highly technical areas of education such as curriculum, instruction, and student assessment. In fact, state acquiescence to general welfare grants is drawing the nation closer and closer to a national curriculum and assessment model.

In many instances, the states are acquiescing because the amount of mon- ey being provided by the federal government is so extensive that to refuse it would create severe fiscal problems. The federal government applies pres- sure to the states to accept their general welfare grants by tying the acquies- cence to other federal monies not related to educational funds, such as high- way allocations and assistance. In fact, state refusal of major federal funds is almost nonexistent.

In recent decades, public education has become a major issue in presiden- tial elections. This seems to indicate that the federal government intends to continue to play a major role in education. Currently, states seem to be willing to accept federal regulations as a prerequisite to receiving federal dollars. It will be interesting to see if this state attitude of acquiescence continues.

EDUCATION AND COMMERCE

Under the commerce clause, Congress has the power to regulate commerce with foreign nations, among the several states, and with the Indian tribes. Education has been most affected by the commerce clause through regula- tions and standards in safety, transportation, and labor. Because of the com- merce clause, education must meet the standards and regulations of such agencies as the Occupational Safety and Health Administration (OSHA), meet the minimum wage laws, and follow other federal standards and regula- tions with regard to the safety of buildings and school buses.

One naturally assumes that the term commerce refers to the buying, sell- ing, and trading of goods among states in the pursuit of commercial activity. However, the Supreme Court has given the term commerce a broader mean- ing. In Gibbons v. Ogden, Chief Justice John Marshall maintained that com- merce is intercourse—not merely an exchange of goods but also a means for the advancement of society, labor, transportation, intelligence, care, and vari- ous other mediums of exchange. The inclusion of intelligence in this inter-

Bradley, Leo H.. School Law for Public, Private, and Parochial Educators, Rowman & Littlefield Publishers, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/franklin-ebooks/detail.action?docID=5059833. Created from franklin-ebooks on 2024-08-29 14:43:11.

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Federal Role in Education 13

pretation of commerce opens the door to the inclusion of educational matters within the commerce clause.

That education is a foundation of commerce is not a new idea nor is it hard to defend. The significance of literacy to a civilization, and indeed the right of every human being to pursue it, began with printing. By the eight- eenth century, knowledge became the subject of a brisk and universal trade among the peoples of the world. In this broad context, education could be brought within the scope of the commerce clause in that the movement of an intelligent citizenry among the states is vital to the growth and prosperity of the nation.

It is interesting to speculate how far the courts might go with regard to the commerce clause and a national curriculum. Due to the wide discrepancy among the states with regard to student achievement and taxable wealth, a broad interpretation of the commerce clause could infer that the lack of consistency from state to state with regard to quality indicators is hindering the intellectual growth of the nation. Therefore, through the power of the commerce clause, the federal government could pass standards and regula- tions that, in effect, would create a national curriculum. This would theoreti- cally ensure that all students, regardless of their state of residency, would receive the same curriculum, thus increasing the quality of intelligence flow- ing from state to state.

The courts are constantly asked to balance the educational powers granted to the states by the Tenth Amendment against the apparently boundless scope of the commerce clause. Although schools have come increasingly under additional standards and regulations of the commerce clause, recent Supreme Court decisions have indicated that there are limits to the expansion of the commerce clause powers. For example, in United States v. Lopez, 1995, the Court held that the Gun Free School Zones Act was unconstitutional because there was no regulation of any commercial activity and it was not connected in any way to interstate commerce. This and other similar decisions by a conservative Court indicated a trend away from an expanded intrusion into educational commerce by the federal government.

Every day that a school is in session that school is full of people— students and adults—who have constitutional rights. These rights are largely based on constitutional constraints that enforce individual rights and free- doms. When there are controversies involving these rights and freedoms, the federal court system has jurisdiction. The First and Fourteenth Amendment rights seem to permeate the caseload. However, if any aspect of federal constitutional rights or constraints is in controversy, the federal courts will hear the case. Thus, in case law, the federal government exercises extensive control and influence.

Bradley, Leo H.. School Law for Public, Private, and Parochial Educators, Rowman & Littlefield Publishers, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/franklin-ebooks/detail.action?docID=5059833. Created from franklin-ebooks on 2024-08-29 14:43:11.

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Chapter 214

SUPREMACY CLAUSE

There are occurrences when a state law is passed that comes into direct conflict with a federal law. When this happens, the state law must give way and accede primacy to the federal law. The supremacy clause elevates the authority of congressional legislation above that of state legislation in areas where Congress possesses constitutional delegation of authority. However, it should be noted that a state is not obligated to expend federal funds for purposes that violate its state constitution (see Wheeler v. Barrera).

In essence, the supremacy clause clarifies that although the United States is made up of fifty sovereign states, we are one nation under one set of enumerated, federal laws that are the supreme law of the land. When the supremacy clause is called into question, the issue is not whether or not federal law takes precedent over state law. It is clear that federal law prevails. However, there is always the issue of whether the federal law in question is a valid exercise of national power. The supremacy clause applies when federal law is a power enumerated in the Constitution and therefore a legal exercise of federal authority.

This became problematic under recent presidential executive orders when the U.S. Department of Education and the U.S. Department of Justice issued guidance documents and other regulatory products regarding gender equity and the application of Title IX. These questions are working through the legal process.

SIGNIFICANT IMPLICATIONS FOR SCHOOL ADMINISTRATION AND LEADERSHIP

School administrators, both private and public, are going to be dealing more and more with grants authorized under the general welfare clause. The philo- sophical argument that education is solely a state function is purely rhetori- cal. Current legislation—such as the replacement of the No Child Left Be- hind Act, the Every Student Succeeds Act (ESSA)—is forcing both public and private schools to react to federal mandates and to how states apply these mandates, especially those mandates focused on data reporting.

ESSA imposes annual testing of all public school students in reading and math, grades 3 through 8, and high school; however, the management of these requirements is left to the individual states. All of these requirements are laden with mandates that project the federal government—as well as the state government through the state’s interpretation—into the curriculum, in- struction, and staff development programs of public schools. Of course, the states could refuse to accept the mandates, but in doing so they run the

Bradley, Leo H.. School Law for Public, Private, and Parochial Educators, Rowman & Littlefield Publishers, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/franklin-ebooks/detail.action?docID=5059833. Created from franklin-ebooks on 2024-08-29 14:43:11.

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Federal Role in Education 15

danger of losing federal funding for other school programs at all levels of education, including higher education.

Political ramifications would also surface. Since ESSA is still in its infan- cy, it will probably undergo change. However, the role of the federal govern- ment in public education, even in this new hands-off form, seems to be an ever-increasing trend. Despite the Tenth Amendment, the school administra- tor is going to have to deal with federal laws, regulations, and requirements on an ever-increasing basis.

Needless to say, administrators need to know the constitutional protection afforded the students, licensed personnel, and classified personnel. To not be informed concerning these rights and freedoms is to invite federal litigation, which costs a school both monetary and human resources. Each of these federal legal considerations will be discussed in the appropriate chapters.

APPLICATION OF FEDERAL STATUTES AND REGULATIONS FOR PRIVATE/PAROCHIAL SCHOOLS

Federal regulations apply to private/parochial schools if and when they re- ceive any federal funds. The two areas where federal regulations most often affect private/parochial schools are discrimination and the keeping of student records.

The Civil Rights Act of 1964 (Titles VI and VII) prohibits employment discrimination on the basis of race, color, sex, religion, or national origin. However, an exception is granted to religious schools on the basis of sex, religion, or national origin when those areas are a bona fide occupational qualification. Race can never be part of a bona fide occupational qualifica- tion. Other specific mandates of the Civil Rights Act are listed below:

1. Nondiscrimination mandates include admissions, financial aid, and virtually every aspect of any federally assisted program.

2. Private/parochial schools that have a history of racial discrimination may be forced to adopt an affirmative action program as a prerequisite to federal funding.

3. The courts have tended to apply the Equal Protection Clause of the 14th Amendment as the standard in cases involving employment con- troversies in private/parochial schools.

The Equal Pay Act of 1963 requires equal pay for employees based on sex. However, the courts only require that the jobs under comparison be substan- tially equal. Strict equality of the jobs under comparison is not required.

Bradley, Leo H.. School Law for Public, Private, and Parochial Educators, Rowman & Littlefield Publishers, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/franklin-ebooks/detail.action?docID=5059833. Created from franklin-ebooks on 2024-08-29 14:43:11.

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Chapter 216

In relation to student records, the Family Educational Rights and Privacy Act (FERPA) applies to any private/parochial school receiving federal funds. A discussion of FERPA is found in chapter 7.

Bradley, Leo H.. School Law for Public, Private, and Parochial Educators, Rowman & Littlefield Publishers, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/franklin-ebooks/detail.action?docID=5059833. Created from franklin-ebooks on 2024-08-29 14:43:11.

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