I have a new article coming out in the BYU Education and Law Journal in which I argue that Congress should give more control to the U.S. Department of Education in reauthorizing the No Child Left Behind Act. I like the section that lays out the history of federal involvement in education, so I’m posting it below, with citations omitted. You can download the full article from SSRN.
For the first one hundred years of U.S. history, Congress had a limited but active role in education. For example, as early as 1785, the federal government required that proceeds from the sale of land in the Northwest Territories go to public schools. Congress may have operated with self-restraint due to pervading views of strong states’ rights. As a result, the Supreme Court did not strike down a single federal law as violating the Commerce Clause or the Tenth Amendment.
Congress’s role increased after the ending of the Civil War in 1865. The federal government required new Union states to provide free public schools and established an early form of the Department of Education, though departmental powers were limited mainly to collecting and publishing data on the state of American education. The Court responded by putting limits on congressional power: by 1936 the Court had narrowed the scope of Commerce Clause power and had used the Tenth Amendment to prohibit even federal taxing and spending power from encroaching into traditionally state activities. Despite the Court’s restrictive views, however, Congress enacted the 1917 Smith-Hughes Act, which succeeded in providing federal aid to schools in the form of grants for vocational programs.
From the late 1930s to the early 1990s, the Court’s opposition to congressional power decreased, clearing the way for a greater federal role in education. The Court shifted to a “nationalist” perspective, rejecting the Tenth Amendment as a constraint on federal legislative power and permitting broad legislation based on Congress’s commerce and spending powers. The federal role in education indeed expanded: Congress provided money for school construction and teacher salaries, supported veterans going to college and local school districts affected by military mobilization, passed school lunch programs, and provided aid for areas affected by federal acquisition of property. The Cold War further encouraged federal support for math, science, and foreign language education to stay competitive with Soviet rivals.
This federal aid, however, tended to favor wealthier school districts to the detriment of poorer countryside and urban schools. To combat these disparities, Congress enacted influential federal education legislation, including the 1965 Elementary and Secondary Education Act (ESEA), the precursor of No Child Left Behind. ESEA dramatically increased federal spending on K-12 education and helped the Department of Education gain prominence in setting education policy–as the agency administered ESEA. Congress also set the Secretary of Education as a cabinet post.
At the same time, the states began creating statewide education policies. States have always provided, and continue to provide, the majority of the nation’s education funding, but typically did not have experts and political bodies dedicated to education policy until the 1970s. Since this time, state governments have made strides towards providing equality of financing amongst school districts, increasing educational quality, and setting standards for student achievement.
The federal position shifted in 1981 when President Reagan took office trumpeting the goal of a limited federal government. Although he managed to slow the increasing level of federal spending on education, at least initially, he did not otherwise decrease the federal role in education directly. But he did limit the federal role in less-obvious ways. For example, he required that executive agencies consider specific federalism concerns when formulating policies (an order revoked by President Clinton) and, along with President Bush, managed to appoint a Supreme Court majority of conservatively-inclined justices. These conservative justices have abated the increasing role of the federal government in education, defending states’ rights under the Tenth Amendment and limiting the scope of the Commerce Clause by prohibiting the federal government from regulating the states in regards to “noncommercial” activities. So as Congress continues to increase the federal role in education, the Supreme Court has essentially worked against that effort, shifting back to a “federalist” perspective, increasingly focused on states’ rights.
Although states’ rights advocates expected this “federalism revolution” to affect Congress’s spending power, the Court has left this power largely unbridled. Even today, the Spending Clause remains mostly unconstrained by federalism concerns resulting in Congress pushing its education policy on states primarily by conditioning federal funding on state adherence to federal priorities. For example, in 1994 Congress passed President Clinton’s Goals 2000: Educate America Act, which focused on using federal aid to assist states in creating their own academic achievement standards and assessment mechanisms. Congress included these types of reforms in subsequent reauthorizations of ESEA, including No Child Left Behind.