Legal Authority for Public Education

Shortly after this country was founded, the U. S. Constitution was written establishing the legal authority for public education. The key section was the tenth amendment which states that, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, or to the people.” (Yudof, Kirp & Levin, 1992, p. 841). Through this amendment, our founding fathers delegated to the states, not the federal government, the legal authority for the governance of public education. Ultimately, states created their own unique public education systems through their individual state constitutions. As a result, even though public education systems are similar from state to state, the delegation of the responsibility for public education to the states has meant that each is at liberty to design its own public education system within the parameters of federal law.

Does this mean that the federal government has no role in public education? Far from it. Although the federal government does not have direct control over public education, it is not without influence. However, because of the tenth amendment, its influence has historically been less than that of state government.

Role of the Federal Government

Since the federal government has no direct authority for public education, its primary mode of action is to pass legislation often linked directly to federal funding. In essence, national political leaders create public policy by tying initiatives to federal dollars. States and more specifically school districts which want federal funding are required to meet certain federal requirements. This formula approach has proven to be a particularly effective way for federal policy-makers to influence public education on a national level.

Key Federal Initiatives

To further understand how the federal government influences public education, let’s take a brief look at four historic federal educational initiatives. Although a discussion of all federal initiatives is impractical and unnecessary, understanding these which have substantially impacted the development of American public education and to some degree educational funding will provide valuable insights into how the federal government uses dollars to influence public education policy and programming.

Land Ordinance of 1785

A landmark piece of federal legislation, the Land Ordinance of 1785, is one of these initiatives (Brimley & Garfield, 2002). Adopted by the Continental Congress on May 20, 1785, it had several purposes; however, one of its key provisions was to divide the land acquired from Britain following the Revolutionary War, primarily in the Midwest, into six mile square townships, each composed of 36 one square mile blocks (See Figure below). Depending upon natural factors such as rivers, the size of the actual township could vary. The federal governmental then sold many of these sections to raise capital, in part, to re-pay war debt. However, a unique provision of the Act was the requirement that Section 16 of the thirty-six mile square block be set aside for the maintenance of public schools. Many of these were sold to raise revenue for public education. Additional land ordinance legislation called the Northwest Ordinance was passed in 1787. It included the phrase, “…religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of school shall be forever encouraged.” This gave further impetus to establishing a priority for public education in areas beyond the original thirteen states and also a property basis for school funding (Alexander & Alexander, 2005, p.1019).

Federal Vocational Education Act

In 1917, federal legislation entitled the Federal Vocational Education Act, sometimes referred to as the Smith-Hughes Act, became law. For the first time, federal funds were used to support the development of pre-collegiate courses in vocational education and related teacher training. By earmarking these funds, the federal government supported the development of public school vocational education programs throughout the country (Guthrie, 2003). This is a good example of how the federal government uses dollars to promote a specific educational initiative without the legal authority to mandate it.

Elementary and Secondary Education Act of 1965 (ESEA)

A more recent and sweeping example of a federal policy is the Elementary and Secondary Education Act of 1965 which was originally signed into law by President Lyndon B. Johnson in 1965. A central component of Johnson’s War on Poverty, ESEA was designed to assist primarily economically disadvantaged students through funding a variety of federal programs. ESEA was divided into various sections called Titles. One of the most well known was Title I: Improving the Academic Achievement of the Disadvantaged. Title I, a federal grant program, was created to improve the reading and mathematics achievement of children from lower socioeconomic backgrounds. School districts seeking federal Title I funding must provide certain types student services and follow grant guidelines to be eligible. Most school districts continue to receive federal Title I dollars even today (Beyer & Johnson, 2005).

Since 1965, ESEA has been periodically reauthorized, each time reflecting the educational policy agenda of the federal government at the time. You will undoubtedly recognize the most recent reauthorization – No Child Left Behind (Beyer & Johnson, 2005).

Education of All Handicapped Children Act of 1975 (Public Law 94-142)

One of my most vivid teaching memories from the early 1970s is trying to teach language arts in an affluent suburban Chicago school district in heterogeneous classes of twenty-five plus students. In each class, I had some students who were academically gifted and a few who could barely read and write beyond a primary grade level. As an English major trained primary in the greatest works of literature, I had very little preparation to teach low functioning students in my language arts class. As a beginning teacher, I decided to approach our school counselors for advice. I assumed that either they would be able to provide me with advice or recommend a veteran teacher who could mentor me.

After I explained the difficulties I was having and asked for advice, I remember how the counselor, a very experienced faculty member, leaned back in his desk chair while smoking his pipe and offered me his sage advice. He began by saying that there are just some students who are like this. He said that he did not have any specific suggestions other than to do the best I could with these children. I was amazed by his comments. Surely, another faculty member must have had success with needy students. As I asked other teachers, I received the same advice.

What I realized later was that special education was in its infancy. Our school, which was in a very progressive district, had only one Educationally Mentally Handicapped (EMH) classroom and two resource tutors who periodically pulled students from class for individual reading support. I remember a year later hearing about an area special education cooperative but knew almost nothing about it. So was the state of special education in the early 70s.

Then along came PL 94-142, Educational of all Handicapped Children Act. The passage of this federal legislation guaranteed for the first time a free, appropriate public education to each child with disabilities (United States Department of Education, 2007). The rest, of course, is history. Beginning with this federal legislation which includes funding support, the growth of special education programs and services has been dramatic. Today this is probably the most far reaching and extensive federal policy initiative impacting public education.

Summary

In Chapter 2, we examined the legal basis for our system of public education including the impact of the 10th amendment. We also studied four examples of historic federal legislation to understand how the federal government uses its resources to influence affect people’s lives through public education policy and programming even without direct constitutional authority.