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Politics, the Courts, and Educational Policy


by Donna E. Shalala & James A. Kelly - 1973

Improvements in the quality of life are made falteringly and slowly. They are frustratingly resistant to public strategies. Over the past two decades the courts have increasingly functioned as designers of improved models of human relationships. The courts have sought and heeded the advice and have been more responsive to the analyses of social scientists in grappling with such intractable modes of moral behavior as segregation, discrimination, and racism. The courts have been markedly unsuccessful in abating finance discrimination, for example, as the Rodriguez case illustrates. The costs of doing what is morally necessary seem to be disproportionately high when measured against such simpler needs as roads and bombers and satellites. This may be historically a novel situation, for one has the sense that in the domains of morals and ethics the courts would have taken their cue from religion and philosophy, but neither religion nor philosophy have yet shown that they are able to provide responses that are quick enough to meet immediate needs nor sufficiently programmatic to be able to instruct a nation how to remove an injustice or an unwarranted limitation on an individual's freedom. In this paper, Professors Donna E. Shalala and James A. Kelly are attempting to expose and delineate what might be called the performance characteristics of the judicial system as it responds to the proliferating requirements that all those who have been, for whatever reasons, unfairly treated either by their neighbors or by their governments must now no longer suffer and must, in practical ways, be compensated for their past and present hurts. The persistent libertarian faith in this nation that equality of treatment and opportunity should be unqualified has always confronted the facts of life that justice is never even-handed. Short of a race-track strategy of handicapping by weight, the devices for assuring a functional relationship between equality of opportunity with equality of results seems not to be available to the agencies of government. Thus it would appear that the courts in no premeditated way attempt their large-scale adjustments toward the end that justice and fairness be unqualified in their equal distribution.

Dr. Donna E. Shalala is associate professor of politics and education at Teachers College. Dr. James A. Kelly is program officer of The Ford Foundation and associate professor of education at Teachers College.


Improvements in the quality of life are made falteringly and slowly. They are frustratingly resistant to public strategies. Over the past two decades the courts have increasingly functioned as designers of improved models of human relationships. The courts have sought and heeded the advice and have been more responsive to the analyses of social scientists in grappling with such intractable modes of moral behavior as segregation, discrimination, and racism. The courts have been markedly unsuccessful in abating finance discrimination, for example, as the Rodriguez case illustrates. The costs of doing what is morally necessary seem to be disproportionately high when measured against such simpler needs as roads and bombers and satellites.


This may be historically a novel situation, for one has the sense that in the domains of morals and ethics the courts would have taken their cue from religion and philosophy, but neither religion nor philosophy have yet shown that they are able to provide responses that are quick enough to meet immediate needs nor sufficiently programmatic to be able to instruct a nation how to remove an injustice or an unwarranted limitation on an individual's freedom.


In this paper, Professors Donna E. Shalala and James A. Kelly are attempting to expose and delineate what might be called the performance characteristics of the judicial system as it responds to the proliferating requirements that all those who have been, for whatever reasons, unfairly treated either by their neighbors or by their governments must now no longer suffer and must, in practical ways, be compensated for their past and present hurts.


The persistent libertarian faith in this nation that equality of treatment and opportunity should be unqualified has always confronted the facts of life that justice is never even-handed. Short of a race-track strategy of handicapping by weight, the devices for assuring a functional relationship between equality of opportunity with equality of results seems not to be available to the agencies of government. Thus it would appear that the courts in no premeditated way attempt their large-scale adjustments toward the end that justice and fairness be unqualified in their equal distribution.


Over the past two decades, race, religion, and the allocation of public money for education have reshaped the politics of education. In all three areas particular interest groups have pressed for unambiguous definitions of "equality of opportunity" especially as the phrase is realized in American public school systems. For each public policy issue—school desegregation and busing, public financing of parochial and nonpublic schools, and the growing awareness that our system of educational finance promotes a maximal separation between resources and areas of greatest educational need—most of the political conflict has been over the definition and, more painfully, the application of that phrase.


It is not surprising, therefore, that the courts have become increasingly a major focus for interest groups concerned with education. Consequently, any analysis of the current status of educational politics must focus in large part on past and present judicial activity affecting education.

SCHOOL DESEGREGATION


In the 1954 Brown v. Board of Education1 case, the United States Supreme Court ruled that a child's constitutional right to equal protection of the laws under the Fourteenth Amendment was denied when a state-supported school system required the child to attend racially segregated schools.2 Nineteen years after this decision, which overturned the prevailing "separate but equal" doctrine, the controversy over segregation persists and has been inflamed by the issue of busing to achieve racial balance.


Until 1964 the Court's ruling was slowly enforced by private civil rights lawyers, chiefly in the South, with financial and technical assistance from the NAACP Legal Defense Fund. The Civil Rights Act of 1964 assigned the federal government the responsibility to bring about school desegregation. Under Title IV, Title VI, and Title IX, that act offered the federal government three means of accomplishing elimination of the dual school system and other educational discriminations based on race, color, or national origin.


Title IV allowed the Department of Justice to file suits in federal courts upon receipt of a parent's complaint alleging discrimination against his children in local schools. It also authorized the Department of Health, Education, and Welfare to provide technical assistance to desegregating school systems upon the request of local school officials. Title VI forbade the use of federal funds for any program or activity which discriminated on the basis of race, color, or national origin. Title IX empowered the Justice Department to intervene in school desegregation suits on the side of the aggrieved plaintiffs.


By the time the Democrats left office in January 1969, all three of these school desegregation tools of the Civil Rights Act of 1964 had been thoroughly developed and put to work. Used by HEW, Title VI proved most effective. The desegregation plans HEW required of former dual school systems if they were to be eligible for federal funds caused significant desegregation, particularly in rural areas and small cities of the South.


The Justice Department used its Title IV authority against the most recalcitrant school systems, also located chiefly in southern rural areas. Federal action was not so urgently needed in southern cities. Nonetheless, under Title IX of the 1964 Civil Rights Act, the Justice Department could intervene in suits brought by private parties. On a number of occasions the Justice Department did enter cases on the side of the Legal Defense Fund and other civil rights attorneys.


Beginning in the 1966-67 school year, HEW issued successive guidelines under Title VI. These guidelines required local school systems to submit voluntary desegregation plans as a prerequisite for federal funding and outlined yearly steps whereby the plans would abolish the dual school system. At first HEW required progressive yearly performance under free-choice desegregation plans. Early in 1968, the Department required the submission of complete or terminal plans to eliminate totally the dual school structure by September 1969, or, given certain unique conditions, September 1970, at the latest. While HEW was requesting and negotiating terminal plans for most school systems, it was moving against systems that refused to make such commitments by using the administrative enforcement process of Title VI, which could result in termination of federal funds. In other words, to back its requirements, HEW invoked the sanction of the federal purse.


This process of clear policy requirements, negotiation, and the use of available sanctions was carefully developed. Consistently, though not without controversy, it brought positive results. With few exceptions the entire process was almost completely removed from the political crosscurrents of the White House, the Cabinet, and Congress.


Under the administration of President Nixon the desegregation situation changed dramatically. During its first year in office the Republican administration hesitantly followed the earlier pattern. While student desegregation took a large statistical jump by 1970, the increase was largely the result of Legal Defense Fund success in several big-city school desegregation suits and of earlier plans enforced by HEW. By 1972, Title VI enforcement was nearly dormant, the Justice Department had ceased filing desegregation suits on behalf of minority students, and almost no technical assistance to local school systems was forthcoming from HEW. More important, the issue of busing had been pushed into the political arena by the President himself. Siding with the opponents of busing, he ordered administration officials to cut off funds for any such program. The strategy of the administration, seen in a series of management decisions and the passage of additional special aid programs to areas which faced the implementation of desegregation plans, has been to shift the responsibility for desegregation from the Executive branch (i.e., HEW jurisdiction) to the "neutral courts." This shift allowed the Executive branch to lead the attack against busing and court requirements. By switching the focus to the courts, the administration could fix responsibility for controlling the courts in school desegregation cases on the Democratic Congress.


The 1954 Brown decision of the U.S. Supreme Court and the subsequent federal court actions implementing that opinion represent, by any standards, an intervention of historic proportions in the status quo of American education. Twenty years of passionate attempts by southern blacks and liberal whites to desegregate schools are paying dividends in the South, but outside the South there are more segregated classrooms today than in 1954.


Since that decision, the courts have become more and more enmeshed in education policy. By developing new constitutional theories as well as carefully monitoring existing statutes, activist lawyers generate new court cases even before prior rulings have been fully implemented. The difficulties of translating the Brown decision into specific plans for desegregation are being encountered anew in efforts to reform school financing systems consonant with new judicial decisions, such as California's landmark case, Serrano v. Priest3 Although resolving these problems in specific terms is partly a political function, it will also involve careful judicial scrutiny of legislative and administrative action to ensure that new financing plans are fully compatible with constitutional principles.


The racial politics of education since 1954 has thus been dominated by federal court decisions, federal administrative and legislative action, and at the local level, by persistent conflict as school boards and administrators struggle between the frequently contradictory thrusts of court orders and community conservatism. States—the legal locus of authority to establish education policy—have been strangely by-passed in this federal-local action and with only a few exceptions have taken no initiative to become involved directly. The complexity of education politics is nowhere better illustrated than by the dominance of federal initiative and absence of state involvement in the most emotionally intensive local education issue of the past twenty years.

CHURCH AND STATE IN EDUCATION


Another issue in which court action has significantly affected the politics of education is public aid to parochial schools. For the past twenty years this issue has been the major focus of the perennial church-state debate. The political history of efforts to obtain tax-raised funds for religious schools largely chronicles attempts to evade prohibitions of state and federal constitutions.


Other issues have occasionally surfaced. A constitutional school prayer amendment was vigorously debated in Congress in the early seventies but failed to get the necessary two-thirds majority. The Tennessee legislature in early 1973 was embroiled again in the issues of the Scopes trial, recast as a proposal to include both the Biblical and evolutionary theories of human origins in school curricula. In 1972 California was thrashing about in a similar conflict.


The controversy over federal aid to parochial schools was in part resolved during the maneuverings that surrounded passage of the federal Elementary and Secondary Education Act of 1965. The device primarily responsible for the enactment of ESEA in 1965 was the so-called child benefit theory. According to this principle, aid would be provided directly to poor and educationally deprived children enrolled in both public and nonpublic schools. Both the National Catholic Welfare Conference, which had long opposed federal school aid without some aid to parochial schools, and the National Education Association, which had long opposed aid to parochial schools, accepted the child benefit concept. On its face, there was nothing unconstitutional in ESEA. It did not explicitly mention schools or church institutions. However, the act's legislative history clearly demonstrates that Congress intended parochial schools to become beneficiaries of aid, and this intent gave ESEA the votes of legislators with Catholic constituencies.


Since ESEA's passage in 1965, numerous disputes have arisen over its constitutionality, and again the courts intervened with widespread effects on the politics of education. The most important court test came in 1966 in Flast v. Cohen,4 a suit brought by New York City's United Parents Association, the New York Civil Liberties Union, the United Federation of Teachers, and the American Jewish Congress. The defendants named in the suit were the Secretary of Health, Education, and Welfare and the United States Commissioner of Education.


Predictably, religious and sectarian school interests strenuously opposed the suit. The federal government moved to dismiss the complaint on the grounds that the plaintiffs, suing as taxpayers, did not have standing to challenge the legality of the expenditures of federal funds. The Supreme Court, ruling only on the issue of the litigants' standing, voted 8-1 in favor of the plaintiffs. The Court held that federal taxpayers have the right to initiate a suit in a federal court challenging the expenditures of federal funds to sectarian schools on the ground that such institutions violate the establishment clause of the First Amendment. A special three-judge panel was directed to hear the substance of the suit. The sponsors of Flast are currently investigating alleged misuse of Title I funds across the country, but have not yet decided when to move on the case.


Since the passage of ESEA, other Congressional activity in the field of education has reawakened the church-state controversy. A school prayer constitutional amendment was defeated in 1971, as mentioned above. Tax credit legislation was introduced in 1972 which would allow a credit against individual income taxes for tuition paid toward the elementary or secondary education of dependents. Although the legislation has the powerful support of Representative Wilbur Mills in the House, it is doubtful such a bill could pass the Senate.

NONPUBLIC SCHOOLS AND THE STATE


Early attempts to gain state aid for nonpublic schools by incorporating parochial schools into a public school system were declared unconstitutional. Later, however, demands in many states for free textbooks, bus transportation, free lunches, and other welfare services for nonpublic school children were granted. Until the decade of the sixties, parochial school interests had not sought direct public aid in view of state constitutional and Supreme Court rulings. They have actively lobbied for such support in the last ten years. Since 1968, twenty-seven statutes in thirteen states have awarded public aid to parochial and other nonpublic schools. Of these "parochaid" measures, thirteen have since been nullified by repeal, court action, popular referenda, or replacement. The remaining fourteen laws are being challenged in the courts; several cases are pending with the U.S. Supreme Court.


The Supreme Court has handed down decisions in two major cases involving parochaid to primary and secondary education. In June 1971, ruling on Lemon v. Kurtzman5  and Barley v. DiCenso,6 the Court held that Pennsylvania in the former case and Rhode Island in the latter had unconstitutional laws which allowed special kinds of aid to parochial schools. Despite a series of unfavorable rulings from the courts, New York State has continued to seek ways to use public funds for parochial schools.7 Interestingly, despite the fact that many parochaid measures have been passed by state legislatures, voters have consistently opposed them when given the opportunity to do so. Thus, for example, in 1967, New York voters defeated a proposed comprehensive revision of the state's constitution primarily because it would have repealed specific language prohibiting state aid to religious institutions, substituting the general language of the First Amendment.8 In 1970, Michigan voters approved a constitutional amendment that comprehensively prohibited numerous means of promoting state aid to sectarian schools.9 In 1972 statutes favorable to the parochaid concept were defeated by referenda in Maryland, Idaho, and Oregon.


States have thus been drawn much more directly into the church-state politics of education than they were in the area of school desegregation. In church-state relations, federal courts define the basic rules of the game even more definitely than in school desegregation, but unlike the desegregation area, interest groups have focused more of their energies on the state than on the local level. State legislatures have repeatedly responded to pleas for aid to parochial schools only to have plan after plan struck down as unconstitutional by federal courts. Parochial school advocates and legislators may soon exhaust their supply of new, possibly constitutional wrinkles on old, already unconstitutional arrangements. If this is so, the 1970s may witness a gradual dimunition of state legislative activity with continuing attention to judicial determinations of whether and in what ways localities either may or must channel to nonpublic schools some part of their federal aid.

THE POLITICAL ECONOMY OF EDUCATION


In addition to race and religion, economic issues are becoming increasingly enmeshed in the politics of education. The metropolitanization process—the movement of people and economic activities from city to suburb—current local, state, and federal educational finance policies, and social-science research on educational finance and related issues have all shaped the politics of education. The implications of each can be seen by examining recent trends in six aspects of the fiscal politics of education.

SCHOOLS AND GENERAL POLITICS


The first trend indicates that the politics of education, never actually separate from politics at large, is being clearly drawn into general politics by the growing competition for scarce public resources. Between 1960 and 1970, school expenditures more than doubled, increasing from $16.8 billion to $42.4 billion, a rise of 153 percent.10 During the same period, pupil enrollment increased by only 30 percent.11 Similarly, between 1960 and 1970, GNP increased at an average annual rate of 7.0 percent, while school expenditures rose at an average rate of 9.8 percent.


Expenditures for other public sector activities such as highways, welfare, health, national defense, and higher education have also -risen rapidly. In reality, schools compete with all other agencies of government for public money. This competition may be seen in battles over tax rates between the private and public sectors of the economy, between educational and noneducational activities in the public sector, and between public schools and institutions of higher education. Despite a facade of separate financing, schools compete with other governmental agencies for public dollars through a process which throws education into general politics.


Troubling implications emerge as one watches school systems compete for dollars. In hall of the nation's urban school districts (those that are fiscally "dependent"), mayors and city councils increasingly exercise their authority to control school budgets on a line-by-line basis. In other large school districts and virtually all nonurban districts, the requirement that school taxes (unlike other taxes) can be increased only by referendum makes schools particularly vulnerable to general taxpayer resistance. In California, 60 percent of school tax and bond elections were defeated in 1971. In 1971-72, over half of the school bond issues submitted in the nation were defeated.


Within large cities, black populations frequently support higher school taxes, reflecting an unquenched faith that somehow schools can help children toward a better life; simultaneously, large numbers of whites oppose increases in school taxes, no doubt reflecting both antiblack "backlash" sentiments as well as the growing proportion of urban white children who attend nonpublic schools (many white public school families having departed for nearby suburbs). Urban public schools are thus peculiarly dependent for local political support on the steadily growing nonwhite proportion of urban populations, a condition that exacerbates the traditional weakness of city schools in state legislative appropriations battles. Rural and suburban legislators seem even less likely to aid predominantly non-white urban schools than they were to aid the mostly white schools of ten or twenty years ago.

TEACHERS' ORGANIZATIONS


The emergence of teachers' organizations as a potent political force is a second fiscal trend in the politics of education. Long organized into politically passive professional associations, teachers have come to an extraordinary realization of the potential power of teachers' organizations, particularly regarding educational finance. The beginning of this trend was signalled by the United Federation of Teachers under Albert Shanker, who successfully bargained collectively with the New York City Board of Education in the mid-1960s. Suddenly blossoming as the largest local in the AFL-CIO, the UFT captured the imagination of young and aggressive teachers across the nation whose orientation toward leadership and politics had been conditioned more by the activism of the civil rights movement than by the traditional low-keyed norms of professionalism. By 1973 approximately thirty-five states required local boards of education to bargain with teachers' organizations. Of those states all but California mandated exclusive bargaining with one teacher organization. In a remarkably short time, that once sleepy giant, the NBA, abandoned its previously iron-clad prohibitions against strikes and collective bargaining. Although teacher strikes are permitted by law in only three states (Hawaii, Pennsylvania, and Vermont), teachers in impressively large numbers have accepted the "work stoppage" as a legitimate, if ultimate, weapon in the annual war of nerves called collective bargaining.


Confronted by this united phalanx of teachers, the influence of school boards over education policy has waned. At first boards appeared willing to agree to any financial settlement in order to avoid strikes. Several large-city boards, and boards in some smaller districts in Michigan, signed contracts promising salary increases for which there was no revenue. Legislatures, city councils, and voters were asked ex post facto to bail out the school boards by providing the needed revenue. In a few cases, banks loaned boards money to keep schools open, but in many instances school boards lacked the administrative will and the fiscal means to cope with the teachers at the bargaining table. Teachers quickly learned to bypass school boards, dealing directly with mayors and even governors to work out settlements. Early teacher bargaining dealt primarily with salaries and fringe benefits, but in recent years teacher organizations appear equally interested in working conditions and nonfiscal education policy.


While boards were clearly on the defensive in their negotiations during the late 1960s, they will vigorously resist further erosion of their management powers through collective bargaining. In this regard their hand is strategically strengthened by the oversupply of teachers; many boards are simply inundated with teacher applications, a condition likely to give pause to untenured teachers. One should not underestimate, however, the achievement of teachers during the past years in wresting from boards and administrators a hefty share of their power over local resource management.

SCHOOL BOARDS


A brief review of the historical evolution of school boards suggests that their waning power over fiscal policy is not a new trend and has deeper roots than recent collective bargaining trends. Significant changes in the functions and powers of school boards have accompanied a decline—100,000 to 15,000—in the number of school districts since 1930. One hundred years ago, school board members were elected by relatively small constituencies. Elections were typically structured so that board members represented particular precincts or wards within a school district, rather than representing all citizens in an at-large capacity. School board members themselves made most of the decisions necessary to operate the schools, including the purchase of supplies, the selection and promotion of school personnel, the setting of curriculum standards and content, and the legal inspection of schools. Before the development of administrative staffs and personnel tenure policies, individual school board members wielded great authority over the most trivial aspects of school operation.


In the late nineteenth and early twentieth centuries, it became common for school boards to employ professional administrators who handled many of the detailed operations previously supervised exclusively by board members. During this period school boards transferred much of their executive power to school administrators and teachers. For their part, both administrators and teachers were not loathe to seek tenured job security and less "political interference" in the conduct of school affairs.


As the number of school districts declined, local boards of education and superintendents found that their decision-making powers were giving way to an increasing body of regulation and law developed by other governmental agencies. State education codes became a thicket of detailed stipulations that today impede local decision-making discretion. More than twenty major federal programs of assistance to public schools contain their own specific guidelines and requirements which local districts must meet in order to participate in the federal program. After the Supreme Court's 1954 desegregation decision, courts played an increasingly important role in setting educational policy—thus further diminishing the discretionary authority of boards. The California State Supreme Court's Serrano decision in 1971 declared unconstitutional school finance plans in which local wealth is allowed to determine school expenditures, a decision likely to enhance state initiative and influence in the 1970s. State restrictions on school district personnel and expenditure policies continue to expand in volume and specificity, while municipal police powers further restrict the local school board. Beyond these legal and quasi-legal factors, socioeconomic conditions and the nature of the local school district's revenue structure severely reduce alternatives for action. As much as three-fourths of the variance in educational expenditures among local school districts can be explained by measures of community socio-economic differences alone, ignoring local board of education policies.


Today local boards respond to initiatives from teachers, administrators, courts, and legislatures, but spend much of their time performing routine institutional maintenance functions such as paying bills. Occasionally, they must adjudicate disputes, but the old adage that "boards make policy" is now more anachronistic than accurate.

GOVERNMENT AND CONGRESS IN EDUCATION


The federal government and the Congress are a third source of influence over the politics of education. At last count, no fewer than forty-two departments, agencies, and bureaus of the executive branch of the federal government administer about 111 different educational programs. Many of these programs became law during the presidency of Lyndon Johnson, when over sixty education bills were passed by the Congress in less than four years.


The most visible federal agency for educational programs is obviously the United States Office of Education. Shaken up vigorously by the legislative spasms of the Great Society, as well as the personal leadership of Commissioners Francis Keppel and Harold Howe, USOE has now settled back into more comfortable bureaucratic routines of program administration. USOE continues to enjoy the most intimate cooperation with state and local education agencies. Many permanent USOE staff members are civil servants who have neither formal training nor experience in education, but who have pretty much been running the store during the past four years. Many key jobs have been vacant for months—some for two years.


Both the federal politics and administration of education are fractionated along program lines. USOE itself administers several key programs, such as ESEA, vocational education, National Defense Education Act, special education, and P.L. 874. But other federal programs are administered outside USOE, including the new National Institute of Education, Job Corps, Head Start, Vista, Manpower Development Training Programs, Neighborhood Youth Corps, and day-care efforts. Further fractionation is observed among federal, state, and local levels as federal dollars agonizingly trickle down through layers of stolid bureaucracy in state education departments and local school districts.


Similarly, the Congress' ability to generate coordinated responses to educational problems also suffers from fragmentation of structure. Consider for a moment the substantive committees in the House of Representatives that pass upon education legislation: Education and Labor, Agriculture (school lunch program), Veterans' Affairs (G.I. Bill of Rights), and District of Columbia (the real school board of Washington, D.C.). Of course, bills from these committees are considered by the House only after being scheduled for floor consideration by the Rules Committee. Money is appropriated separately through the Appropriations Committee, which in turn depends partially on the Ways and Means Committee to raise the taxes needed for its appropriations. The dependence of the entire process on tax policy is particularly relevant in a period like the past decade when Congress has been cutting tax rates.


Structural fragmentation is not the only problem. Congressional leadership and composition frequently do not reflect the increasingly metropolitan character of the American population. Five of the seven House committees named above are chaired by representatives whose congressional district does not contain a city of 250,000 people or more. The chairman of the Education and Labor Committee, Carl Perkins, represents a predominantly rural area of Kentucky; Ashland, the largest town in his district, had a population of 29,245 in 1970. In the 91st Congress, the eighteen Senators from the nine least populous states represented only 2 percent of the American people, but the eighteen Senators from the nine most populous states represented 52 percent of the American people—graphic evidence of urban under-representation.12


The political pressures that move the Congress and Executive to action in education are programmatically focused. Vocational and special education, for example, have clearly defined constituencies that are effectively organized for lobbying in state and national capitals. Representatives of the special education and vocational education interests long ago cemented linkages to their respective bureaus within USOE and with counterpart bureaus in almost every state department of education. Such programmatic special interests have their champions on Capitol Hill, where key members of committees in both houses are long-established friends of these interests.


The constituents for vocational and special education are parents and educators. Parents of handicapped children are obviously difficult constituents for legislators to oppose; organized labor and large corporations alike are directly interested in the legislative success of vocational education programs. These constituencies may not be formally organized at the local level, but each has effective ties to special interest groups in state capitols and in Washington and remain in close communication with state and federal executive and legislative branches.


This state of affairs contrasts sharply with the chaotic relationships between the federal government and urban school districts per se. Large city districts must often bypass their state educational agencies and deal directly with Washington, but no effective coalition representing urban education interests exists in Washington. Effective liaison in behalf of urban education legislation is seldom observed among national organizations with urban orientations such as the Great Cities Research Council, the American Federation of Teachers, the Association of Large City School Boards, the superintendents of schools in cities over 300,000 in population, and the urban-based elements within the NEA family of organizations. The Emergency Committee for Full Funding of Education Laws, the most successful Washington lobbying effort by educators in recent years, placed greater priority on obtaining P.L. 874 funds than on shifting funds into programs such as Title I of the ESEA, which speaks directly to urban needs. This is understandable, for the real lobbying "muscle" of the Emergency Committee came initially from the well-disciplined P.L. 874 lobby, called by former HEW secretary Wilbur Cohen the most effective single lobby facing HEW.

USES AND MISUSES OF SOCIAL SCIENCE


New patterns have recently emerged in the use of social-science research to formulate and rationalize education policies, and the politics of education has been correspondingly affected. The "Coleman Report" electrified the politics of education.13 Coleman concluded that measures of social class and home environment were so closely correlated with school achievement scores that, once this correlation had been estimated, measures of schooling (e.g., libraries, expenditures, class size) were almost uncorrelated with achievement scores. This finding was itself debatable on grounds of data validity, sampling representativeness, and statistical procedure. But social scientists were disturbed by the gross misinterpretation of Coleman by politicians and journalists. Coleman's work has been perverted to mean that "schools make no difference," yet he did not ask whether, for example, the 90 percent of eighth graders who can read and count were helped by schools. He asked merely what differences exist among eighth graders, and concluded that social background appears to be a more important factor than schooling in determining those differences.


A distinction must thus be drawn between scientific and popular interpretations of Coleman. The politics of education since 1966 has been deeply influenced by the popular version. Daniel P. Moynihan, for one, mistook journalistic misinterpretations of Coleman for scientific fact. His view that further spending on schools is futile rested on his failure to recognize what Coleman did and did not study. But when Moynihan became counselor to the President in 1969, his views became national policy. The Nixon administration has steadfastly clung to this patently oversimplified policy. Veto after veto cut back Congressional spending bills in education. The policy won its most recent "vindication" from Jencks's recent press-release excursion into the effects of education on lifetime earnings.


The only cracks in the Nixon policy have been observed in connection with the President's Emergency School Assistance Act. At one point in the lengthy process of securing passage of this legislation and renewal of ESEA, HEW reversed engines and argued that schools would make a difference if only federal "compensatory" moneys totalled $300 per pupil per year!


The sorry history of policy interpretations of "Colemanesque" studies reveals serious flaws in the process—necessarily political—by which policy-makers leam of the various fields of knowledge (e.g., learning psychology or the economics of education) useful to the practice of education. Institutions such as the National Institute of Education, the Social Science Research Council, the American Educational Research Association, and the National Academy of Education, as well as the NBA and AFT, should apply their considerable resources to the urgent problem of helping policy-makers to distinguish fact from myth in educational research.

COURTS AND EDUCATIONAL POLICIES


It is difficult to exaggerate the growing importance of judicial action to educational politics in general. The most prominent current example of court influences is the school finance cases based on the Serrano prototype now in litigation in about forty states. These cases, where successful, will draw governors and legislators into a re-examination not only of educational policy but of the state's overall tax structure. Governors in many states now hold education financing as a pressing priority: Thomas L. McCall in Oregon, William G. Milliken in Michigan, Rubin Askew in Florida, William T. Cahill in New Jersey, and Wendell Anderson in Minnesota are leading recent examples. Although major legislative changes in school financing do not yet present definite patterns, it can be said that most plans call for state takeover or tighter control of the property tax, coupled with more stringent state restrictions on the salary and expenditure discretion of local districts.


There is much reason to believe that courts are still only at the threshold of defining educational rights. In a number of settings courts have held that each child has the same rights vis-a-vis public schools as every other child. But the courts and education authorities have only begun to define the criteria by which to determine whether the education offered to one child is qualitatively the same as that offered to another.


Moreover, the United States Supreme Court recently dealt the concept of equal educational opportunity under the federal Constitution a blow of uncertain proportions. In its decision in San Antonio Independent School District v. Rodriguez,14 the Court ruled that a child's right to public education is not a "fundamental (federal) right" under the Fourteenth Amendment. While the Court then ruled that the school finance arrangements in Texas did not violate the Fourteenth Amendment of the Constitution, it suggested the possibility that numerous states had constitutions which explicitly guaranteed a child's right to an education.


As if responding to this cue, just two weeks after Rodriguez, the New Jersey Supreme Court, in Robinson v. Cahill,15 struck down the state's school financing statutes on the ground that they failed to meet the state constitutional requirement of a "thorough and efficient system of free public schools for all the children in the State."


Judicial recognition that children have an enforceable state constitutional right to a certain qualitative standard of education has potential implications that extend far beyond the politics of public education, ultimately affecting state-local tax structures and the quality of education in the classroom. The implications of Robinson also extend beyond the geographic confines of New Jersey because thirty-eight other states have constitutional provisions which prescribe a required quantum of education. Many of these provisions are comparable to New Jersey's "thorough and efficient" clause.


The current legal issues ultimately query educational outcomes—what should students gain from their education? A set of related issues bears directly on the politics of education. These are process rather than outcome issues; they ask how educational decisions are made. Student rights in various permutations have been widely litigated. Students, it turns out, are citizens after all, and have taken an increasingly energetic part in the politics of education, especially at the local level. A second process issue—the openness of educational decision-making—is just beginning to emerge as crucial, partly through legal action to assure parental access to pupils' records. Other types of information, such as achievement test scores, are being made public more frequently. Heightened consumer awareness in other settings contributes to the new sensitivity of parents and students to the accuracy and availability of information. As more data become public, increased political attention too is drawn to the successes and failures of the educational system.


This growing importance of judicial rulings in educational policy-making is neglected inmost major schools of education. University programs which prepare educational leaders concentrate heavily on administrative politics, occasionally on legislative politics, but almost never on the crucial role of the courts in shaping educational policies. Those who would understand the politics of education in the 1970s and who care about the realization of equality of opportunity will necessarily focus much of their attention on the judicial politics of education.


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1 Brown v. Board of Education, 347 U.S. 483 (1954).

2 This entire section draws on a series of interviews with Cynthia Brown, senior research associate, Washington Research Project, Washington, D.C., June 1973.

3 Serrano v. Priest, 5 Cal. 3d 584,96 Cal. Rptr. 601,487 P.2d 1241 (1971).

4 Flast v. Cohen, 392 U.S. 83 (1968).

5 Lemon v. Kurtzman, 403 U.S. 602 (1971).

6 Earley v. DiCenso, 403 U.S. 602 (1971).

7 In January 1972, in Committee for Public Education and Religious Liberty et al. v. Levitt et al, a three-judge panel, relying on the Lemon case, ruled that the New York State legislature's Secular Education Services Act was unconstitutional. A second piece of legislation passed in 1970 (Mandated Services Act) was ruled unconstitutional in April 1972 by a three-judge panel.

8 Donna E. Shalala. The City and the Constitution. New York: National Municipal League, 1972.

9 The New York Times, November 8, 1970, p. 56.

10 National Education Association. Estimates of School Statistics 1970-71. Washington, D.C., 1970, p. 19.

11 Ibid., p. 8.

12 Bureau of the Census. General Population Characteristics, 1970, Final Report, United States Summary. Washington, D.C.: U.S. Department of Commerce, 1970.

13 James S. Coleman et al. Equality of Educational Opportunity. Washington, D.C.: United States Government Printing Office, 1966.

14 Rodriguez v. San Antonio Independent School District, Civil Action 68-175-SA, U.S. District Court, Western District of Texas, San Antonio Division (1971).

15 Robinson v. Cahill, Docket L-18704-69, Superior Court of New Jersey, Hudson County (1972), Appendix A.



Cite This Article as: Teachers College Record Volume 75 Number 2, 1973, p. 223-238
https://www.tcrecord.org ID Number: 1479, Date Accessed: 10/16/2021 7:36:51 PM

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About the Author
  • Donna Shalala
    Teachers College, Columbia University
    Dr. Donna E. Shalala is associate professor of politics and education at Teachers College.
  • James Kelly
    Teachers College, Columbia University
    Dr. James A-Kelly is program officer of The Ford Foundation and associate professor of education at Teachers College.
 
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