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The Constitution and
Federal Jurisdiction in American Education

by Kerry L. Morgan

IV.   THE DEPARTMENT OF EDUCATION – 1867

James Buchanan’s historical warning, that inventing federal jurisdiction over educational matters would confer upon Congress a vast and irresponsible authority, was ignored in 1862 during the early period of the southern insurrection. In the days of reconstruction after the Civil War, his warning was embraced as a solution. Preferring to construe the Constitution in an unnatural and militaristic fashion, Congress had refused the admission of Senators and Representatives from eleven of the 36 states then in the Union.81 Rather than obeying their constitutional duties to preserve that document and the Union which framed it, Congress chose to take advantage of this disenfranchisement and enacted a Federal Department of Education 1866. This political reconstruction act was a clear congressional usurpation of jurisdiction with respect to educational matters, at the expense of the Union.

The National Association of State and City School Superintendents had petitioned Congress to establish a Bureau of Education. Their memorial noted that the object of this Bureau was to “render needed assistance in the establishment of school systems where they do not now exist” as well as improve and vitalize existing systems.82 The assistance requested was to assume six forms:

    1. Secure greater uniformity and accuracy in school statistics.
    2. Bring together the results of school systems in order to determine their comparative value.
    3. Assemble the different methods of school instruction and management for distribution.
    4. Collect and diffuse information generated by school districts respecting state school laws, teacher qualifications, modes of heating and ventilation, etc.
    5. Help communities in the organization of their school systems.
    6. Encourage education as a valuable object and shield of civil liberty.83

In essence, the Association sought the Federal Government as a “national channel of communication between the school officers of different states. . . without its being invested with any official control of the school authorities therein.”84 There was neither mention nor desire to utilize the federal treasury to fund any educational programs. There was no hint that the Department would do anything other than collect statistics. In short, the Department was to be an educational statistical service located in Washington, D.C. Though the educational sphere of action was small, the Bill requested Congress to assert jurisdiction over the sphere of education itself.

When debate opened in the House on June 5, 1866, General James Garfield of Ohio (later to be the twentieth President) presented the Bill as modified by himself, which was then read. It provided in part that:

There shall be established, at the City of Washington, a Department of Education 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 respecting the organization and management of schools and school systems and methods of teaching as shall aid the people of the United States in the establishment and maintenance of efficient school systems, and otherwise promote the cause of education throughout the country.85 (emphasis added)

The Bill also provided that the Commissioner report to Congress annually, “the results of his investigations and labors, together with a statement of such facts and recommendations as will in his judgment subserve the purpose for which this department is established.”86

The first speaker, Mr. Donnelly of Minnesota, referring to the southern states and the recent Civil War, suggested that

We have found that the hitherto governing populations of those states could not be trusted to uphold the national Government, . . the responsibility for all this has been properly charged to slavery. Slavery has been swept away, but the ignorance, the degradation, which were its consequences remain. . . . “87

After a rigorous sermon on the evils of ignorance and the illiterate conditions of the southern states and Mexico, he declared,

Pass this Bill and you give education a mouthpiece and a rallying point. While it will have no power to enter into the states and interfere with their systems, it will be able to collect facts and report the same to Congress, to be thence spread over the entire country.88

The import of Mr. Donnelly’s address was that ignorance and illiteracy contributed to the Civil War and threatened the Republic. The remedy to prevent further evil of this nature was, “to make every man who votes an intelligent, conscious, reasoning, reflecting being” by education.89 Mr. Donnelly’s concern, however, was not merely to remedy ignorance. It was broader than that. By tying his remedy to voting, he effectively declared that loyalty to the federal government could be secured by indirectly controlling education from Washington. He neglected in his analysis, however, to demonstrate exactly how the availability of statistics would eradicate disloyalty and illiteracy without a related form of control.

It is erroneous to believe, as did Mr. Donnelly, that the southern states did not know how to educate their children. Strategically, Donnelly had reduced education to an issue of loyalty and literacy. He had neglected other dimensions of education prevalent in states where parental rights were consistently observed. He drew instead heavily upon the claims of anti-parental state systems of education which made literacy the sole benchmark of education and the state the sole provider .90

The following speaker, Mr. Rogers of New Jersey, stated that,

I had reason to believe that. . . no more Federal bureaus would be attempted to be established for the purpose of carrying out any particular ideas of philanthropy of any set of men whatever .91

He observed that it was unheard of to establish a centralized “bureau for the purpose of giving the principles by which the children of the different states shall be educated.” Turning to the Constitution, he stated, “there is no authority under the Constitution of the United States to authorize Congress to interfere with education of children of the different states in any manner, directly or indirectly.”92

Congressman Rogers pointed out the inherent flaw in the Bill. It purported to give Congress jurisdiction over education. Once jurisdiction over education, however, was asserted, it could be expanded by Congress as desired. Encouraging education was no different than controlling it, if jurisdiction was once conceded.

Mr. Rogers declared that the Bill,

proposes to put under the supervision of a bureau established at Washington all the schools and educational institutions of the different States of the Union by collecting such facts and statistics as will warrant them by amendments hereafter to the law now attempted to be passed, to control and regulate the educational system of the whole country.93

He correctly noted that the Bill was open on the question of future control, but clearly asserted federal jurisdiction. This opened the door for control either directly or indirectly through funding or other means, at any time in the future when conditions proved that expediency should again be made the rule of constitutional construction. To assert that the degree of federal jurisdiction was small and limited to statistics, in no way impaired the jurisdictional claim. For once jurisdiction was established government could assert complete sovereignty within that sphere at any time.94

Rogers also focused on the enormity of the expense of the project and its open-ended nature, the false characterization of southern states as ignorant and illiterate, and the natural right of parents to educate their children.95 He reiterated that

no man can find anywhere in the letter or spirit of the Constitution one word that will authorize the Congress of the United States to establish an Education Bureau. If Congress has the right to establish an Educational Bureau, . . for the purpose of collecting statistics and controlling the schools of the country, then by the same parity of reason, a fortiori, Congress has the right to establish a bureau to supervise the education of all the children that are to be found in. . .this country. You will not stop at simply establishing a bureau for the purpose of paying officers to collect and diffuse statistics in reference to education.96

Mr. Rogers correctly observed that power with respect to education was not to be found among those enumerated to Congress. With these views expressed, the speaker’s hammer fell, and debate was ended.

On June 8, 1866 the measure was considered for a second time. Mr. Moulton of Illinois, began the discussion, “Now, sir, what is the scope and object of this bill? What does it propose to do? It is simply a measure for the benefit of universal education.”97 After a discourse on the personal devotion of educational thinkers toward universal education, Mr. Moulton continued by asking,

Now, Mr. Speaker, what is the true, genuine spirit of our institutions? Upon what are they founded? The two great pillars of our American Republic, upon which it rests, are universal liberty and universal education.98

Suggesting the former had been achieved by passage of the Civil Rights Act of 1866, he then asserted in his usual rhetorical way,

Now, sir, in order to make education universal, what do we want? What is the crying necessity of this nation today? Why, sir, we want a head. We want a pure fountain from which a pure stream can be poured upon all the States. We want a controlling head by which the various conflicting systems in the different States can be harmonized, by which there can be uniformity, by which all mischievous errors that have crept in may be pointed out and eradicated.99

In case his fellow Congressmen were not sure just what proponents of the Bill intended once Congress assumed jurisdiction, he took great pains to point out for them their plans:

The very object of establishing a Bureau of Education is that these different systems may be brought together. We want all these school systems all over the land brought under one head, so that they may be nationalized, vitalized, and made uniform and harmonious as far as possible.100

This is either an assertion of control over the minds of men, the destruction of State governments, or a somewhat naive demonstration that parents and States would eagerly accept this “pure fountain” of federal information and willingly fall in line with the “pure stream” of educational wisdom annually announced by the Commissioner. Not only was Mr. Moulton lacking in basic understanding of human nature and states’ rights, but he demonstrated a broad irresponsibility with respect to the Constitution as well. The power and fervor of the Reconstruction Congress apparently dulled his constitutional faculties, for he then remarked on the constitutional issues raised by Mr. Rogers three days previous; “Let us look at this for a moment. Let us see whether we have constitutional power.”101 Thereafter he misquoted the Constitution, declaring “The Constitution provides that it shall be the duty of Congress to pass all laws which shall be necessary for the common good and welfare.”102 From all this he somehow concluded that

I do not desire unnecessarily to concentrate the power of the country here, . . . Then what is this Bureau to do? Simply to collect information, nothing more than that. It will be but an extension of the census of the people.103

What is to be made of Congress’s “duty to pass all laws” under such a Bill is not clear.

Certainly the federal government is no “pure stream” of educational insight. It possesses no monopoly on the best system of education despite its congressional converts. The logical nexus between a service designated to collect statistics, and one designed to nationalize, vitalize, and harmonize education, sufficiently demonstrates that proponents in Congress sought to control American education indirectly through statistics and, eventually, directly by force. Neither form of control, however, was consistent with any constitutional proposition, including the power of census or the general welfare clause.

Mr. Randall of Pennsylvania also spoke. He introduced an amendment in an effort to satisfy the proponents and opponents of the Bill. It proposed to establish a Bureau of Education for the sole purpose of collecting statistics. Since this was properly within the authority of the Department of the Interior (if any department), he considered it sufficient to placate the fears of the opponents. He gives his reasons plainly:

The systems of education throughout the country have been left to State authority. The raising of the revenue for educational purposes, the method of its expenditure, and the system of instruction have all been left entirely with the States.104

Clarifying the object of the Bill, he proposed that the general government

leave this question of statistics in reference to the States educational systems to the Secretary of the Interior, where it properly belongs, if it belongs to any Department of the Government. It is . . . a part of the system, or should be part of the system, of taking the census.105

Though rejected in this session, the amendment was accepted in essence by a subsequent Congress and the Bureau was placed in the Department of the Interior.

Whatever the constitutional merits of this claim of congressional power, that is, the inclusion of educational statistics in the census, it could only be employed in a manner consistent with an enumerated end. Notwithstanding any of this, it is clear that the original objects of the Bill, diffusing organizational and school management methods as well as teaching methods, are no part of the work of a census, nor does Congressional power to conduct a census permit promotion of the cause of education throughout the country. These objects were part of the original Bill, but were not appropriate items for a census. When the final vote on the Bill to establish the Department of Education was taken, the measure was defeated 59 to 61, the Democrats voting solidly against it. Later in the day, Congressman Upson of Michigan moved for reconsideration.106 On June 19, 1866 his motion came to a vote. Garfield, who had introduced the original bill now argued strenuously on its behalf. He claimed that education was an interest that had no lobby to press its claim and urged that the House reconsider “this liberal and progressive measure.”107

Upon reconsideration, a number of representatives abstained from voting and the Bill passed. The change in the vote was directly tied to the abstentions, “the persistent zeal with which (Garfield) urged the measure in private,”108 and the obvious fact that no southern representatives were admitted to their congressional seats. Others suggested that Garfield had “bamboozled” the House into passing the Bill.109 Garfield, however, maintained that the Bill disclaimed any control over the educational systems of the states, though jurisdiction had been asserted by the national government.110

Andrew Jackson could not have predicted the rationale employed by proponents of federal jurisdiction over education in clearer terms when in 1830 he said:

When an honest observance of constitutional compacts cannot be obtained from communities like ours, it need not be anticipated elsewhere . . . and the degrading truth that man is unfit for self-government admitted. And this will be the case if expediency be made a rule of construction in interpreting the Constitution.111

The rationale “requiring” federal abridgement of the peoples’ inalienable right and power over their own education was devoid of any constitutional basis. It reflected the popular belief that a reconstruction Congress could ‘temporarily’ suspend the Constitution for the expedient objectives of unity. This abridgement was also complimented by a European styled centralization of education under the general government. Garfield for instance cited approvingly M. Guizot, then Minister of Public Instruction in France.112 Guizot declared

Napoleon felt that the educational department . . . should hold closely to the (French) state government, receive its powers from that source, and exercise them under its general control. Napoleon created the University, adapting it to the new state of society.113

Decline of Constitutional Restraints

In 1806 Jefferson considered federal presence in education to be unconstitutional. In 1862 the first Morrill Act was successfully passed donating federal lands for higher education. By 1867 Garfield and Congress thought more of European educational experience than the United States Constitution. As a result, the Department of Education was created. After 1867, the jurisdictional issue, having been waylaid, Congress steadily expanded its unconstitutional reach into education. In 1890 a second Morrill Act which provided federal funds for land grant colleges and universities was approved. In 1907 the Nelson Amendment to the Morrill Acts increased aid to land grant institutions. In 1917 the Smith-Hughes Act provided federal aid to states for vocational education. The Bankhead-Jones Act of 1935 increased federal funds for land grant institutions. In 1954 Congress authorized the appointment of a National Advisory Committee on Education charged with the responsibility of advising the Secretary of H.E.W. on problems of national concern in education. The National Defense Education Act of 1958 authorized federal aid to all levels and several categories of education. In 1963 Congress authorized financial assistance for construction and rehabilitation of facilities in higher education which was completely contrary to the House Committee Report of 1811.114

Congress had come full circle in education by unilaterally suspending the historical and constitutional limitations imposed upon their power. The expansion of federal jurisdiction beyond its constitutional boundaries, once sustained, provided ready justification for a variety of congressional abridgements with respect to education. The period from 1862 to 1979 was not a transition period as much as it was the consistent expression of unlawful federal jurisdiction over education. The Federal Department of Education Act of 1979 is not the apex of these events but a significant acceleration of the suspension of a limited and constitutional government.

Thus, by 1979 the clarity of Jefferson’s position which required a constitutional amendment prior to congressional assumption of jurisdiction over education had been ignored. Congress had expanded their jurisdictional claim so that over 300 separate federal education programs involving expenditures reaching nearly 25 billion dollars including over 40 federal departments and agencies involved in education grants, services and regulations, could carry on business as if the Constitution were non-existent. The prediction of Congressman Rogers in 1866, however, was correct; “You will not stop at simply establishing a bureau for the purpose of paying officers to collect and diffuse statistics in reference to education.”115 Thus, by 1979, what began as the mere collection of statistics by the federal government, had assumed the proportions of a modern Napoleonic Educational Code.116

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FOOTNOTES

*   Copyright © 1985, 2006 Kerry L. Morgan. Used with permission. Excerpted from The Constitution and Federal Jurisdiction in American Education.
   81.    Richardson, Presidents, supra note 16, at 6:391-92, Special Session Message, June 22, 1866.
   82.    Hinsdale, U.S. Education, supra note 25, at 2:1290.
   83.    See Hinsdale, U.S. Education, supra note 25, at 2:1290.
   84.    Hinsdale, U.S. Education, supra note 25, at 2:1290-91.
   85.    U.S., Congress, House, Representative Garfield urged the passage of the Bill to establish the Federal Department of Education, Congressional Globe, supra note 1, at 2966.
   86.    Congressional Globe, supra note 1, at 2966.
   87.    U.S., Congress, House, Representative Donnelly noted the results of the census literacy figures and recent war, concluding that the lack of compulsory education was to blame, Congressional Globe, supra note 1, at 2966-67.
   88.    Congressional Globe, supra note 1, at 2968.
   89.    Congressional Globe, supra note 1, at 2968.
   90.    The facts which he pointed out supporting his proposition were derived from the United States census figures of 1850 and 1860. Mr. Donnelly relished, with great delight, pointing out the antithetical educational philosophies of a northern state, Massachusetts, and its southern counterpart, Virginia. Noting that Massachusetts required compulsory state education as early as 1642, while Virginia had left education to parents, he turns to the census figures and concludes that as a result of this development, a very small percent of Massachusetts citizens could not read or write but nearly three quarters of white Virginians were illiterate. He draws the same inferences with respect to dollars spent on education within the states. He concludes the discussion by requesting Congress to pass the bill on the basis of these statistics, suggesting that compulsory attendance and dollars spent on education are significantly related to literacy and loyalty. Congressional Globe, supra note 1, at 2967-68.
        Fifteen years later, however, Mr. Montgomery, an Assistant Attorney- General with the United States also reviewed these very same statistics in the context of education. He noted that illiteracy rates in Massachusetts and other compulsory attendance states were indeed low, approximately one illiterate to every 312 white inhabitants, while Virginia, for example, stood at one illiterate for every 12 white inhabitants. He does not stop here, however. If compulsory state education was the cornerstone of the civilized American Republic as it was (and is) commonly believed, then its greatness should be reflected in all the statistics of the census. Mr. Montgomery’s findings are as follows:

Those educated under the New England (compulsory) system had one native-born white criminal to every 1,084 native white inhabitants, while those who had generally rejected that system had but one prisoner to every 6,670, being a disproportion, according to the whole number of native whites, of more than six criminals in New England to one in the other community. A glance at the same table will show that the natives educated under the New England system (compulsory) had one pauper to every 178, while those who managed to live without that luxury had one pauper to every 345.

Of those who in one year died by suicide, New England had one to every 13,285 of the entire population, while Virginia and her five sister (states) had but one suicide to every 56,584, and of those who perished, the victims of their criminal lusts, New England had one to every 84,737, while her neighbors, that had never enjoyed her educational advantages, had but one such victim to every 128,729.

        Zach Montgomery, comp., The School Question from a Parental and Non Sectarian Stand-Point, 4th ed. (Washington: Gibson Bros., 1889; reprint ed., New York: Arno Press, 1972), 12.
        Mr. Montgomery is not so brash as to set up a cause and effect relationship as did Mr. Donnelly. He merely concluded that the loss of parental authority and home influence over children, by a state controlled system of education, alongside the public neglect of moral and religious education and training, contributed to the decline of the Republic, even though its citizens may be literate. Id. at 30.
   91.    U.S., Congress, House, Representative Rogers, noted the historical and constitutional impediments precluding direct and indirect federal involvement in education, Congressional Globe, supra note 1, at 2968.
   92.    Congressional Globe, supra note 1, at 2968.
   93.    Congressional Globe, supra note 1, at 2968.
   94.    When challenged on the grounds that Congress had established a Bureau of Agriculture to collect statistics and this was not objected to, he replied correctly that the “object for which the Agricultural Bureau was established is one almost coeval with the formation of the Government itself.” He then observed, “It is one which is necessary in order to hold complete and intimate connection with foreign countries and get the necessary information for the Federal Government. It is necessary for the diffusion of knowledge of a national character all over the country, and has no analogy to this interference with the simple right of the States in regard to the education of their own people.” U.S., Congress, House, Representative Rogers’ reply to Mr. Grinnell’s inquiry regarding the constitutionality of the statistical function of the Department of Agriculture, Congressional Globe, supra note 1, at 2969.
   95.    Congressional Globe, supra note 1, at 2969.
   96.    Congressional Globe, supra note 1, at 2969. See text accompanying note 115 infra.
   97.    U.S., Congress, House, Representative Moulton extolled the virtues of a centralized, government-controlled educational system under the head of the federal government, 39th Cong., 2nd sess., 8 June 1866, The Congressional Globe, 3044.
   98.    Congressional Globe, supra note 97, at 3044.
   99.    Congressional Globe, supra note 97, at 3044.
   100.    Congressional Globe, supra note 97, at 3045.
   101.    Congressional Globe, supra note 97, at 3054.
   102.    Congressional Globe, supra note 97, at 3045. The provision, which does not grant Congress power over education, directly or indirectly, to which the Representative referred states: “The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States;” U.S., Constitution, art. I, sec. 8, cl. 1. This clause neither imposes a duty on Congress, or grants Congress educational authority.
   103.    Congressional Globe, supra note 97, at 3045.
   104.    U.S., Congress, House, Representative Randall proposed an amendment to the education Bill to place it within the Department of Interior as an appendage of the national census as far as consistent with its purpose and constitutional limitations, Congressional Globe, supra note 97, at 3047.
   105.    Congressional Globe, supra note 97, at 3047.
   106.    Congressional Globe, supra note 97, at 3048.
   107.    U.S., Congress, House, Representative Upton of Michigan moved for reconsideration of the Bill previously defeated respecting the educational involvement of the federal government, 39th Cong., 2nd sess., 19 June 1866. The Congressional Globe, 3270.
   108.    B. A. Hinsdale, President Garfield and Education, (Boston: Osgood & Co., 1882, Library of American Civilization 15659), 165.
   109.    Theodore C. Smith, The Life and Letters of James Abram Garfield, 2 vols. (New Haven: Yale Univ. Press, 1925, Library of American Civilization 23799-800), 2:781.
   110.    See Smith, Garfield, supra note 109, at 2:781.
   111.    Richardson, Presidents, supra note 16, at 2:491. See notes 61-62 & accompanying text supra.
   112.    See Hinsdale, Garfield, supra note 108, at 204. Garfield noted that the “learned and brilliant Guizot, . . . regarded his work in the Office of Minister of Public Instruction , in the government of France, the noblest and most valuable work in his life . . .” Id.
   113.    Charles Brooks, Some Reasons for the Immediate Establishment of a National System of Education for the United States, 2nd ed., (Boston: John Wilson & Sons, 1869, Library of American Civilization 40011), 19-22.
   114.    For a listing of these and other Acts, see Kursh, Office, supra note 70 at Appendix A & B. For a copy of the House Findings in 1811, see text accompanying note 52-53 supra. For an inside look at the Office of Education within the Department of Health, Education and Welfare and the same predictable rationales of expediency utilized by the federal government to set the educational policy and agendas of the people and states, see, Francis Keppel, The Necessary Revolution in American Education (New York: Harper & Row, 1966). Joseph Califano exhibited greater awareness of the dangers of federal control than did Francis Keppel, though both failed to clearly understand any substantive jurisdictional claims. Califano warned that “in its most extreme form, national control of curriculum is a form of national control of ideas.” Joseph A. Califano, Jr., Governing America (New York: Simon & Schuster, 1981), 297.
   115.    Congressional Globe, supra note 1, at 2969. See text accompanying note 96 supra.
   116.    See U.S., Congress, Senate, Committee on Governmental Affairs, Legislative History of Public Law 96-98, Department of Education Organization Act, pts. 1-2, 96th Cong., 2d sess., (Washington, D.C.: Government Printing Office, 1980), 1:3. See also 20 USC 3402. For a discussion of Garfield’s proliferation of the census, see Smith, Garfield, supra note 109, at 2:793-96.