Illegal? I do not think it means what you think it means

Jay Greene has an interesting argument up over at EducationNext, in which he argues that the Federal Department of Education is breaking the law, that is, exceeding its statutory mandate.  (And whatever mandates it has would have to be statutory; I think it’s pretty clear that the DoE has no Constitutional portfolio whatsoever.)  Here’s the juicy bit:

The 1979 law by which the U.S. Department of Education is authorized in its current form clearly prohibits these activities.  It states (in section 103b): “No provision of a program administered by the Secretary or by any other officer of the Department shall be construed to authorize the Secretary or any such officer to exercise any direction, supervision, or control over the curriculum, program of instruction, administration, or personnel of any educational institution, school, or school system, over any accrediting agency or association, or over the selection or content of library resources, textbooks, or other instructional materials by any educational institution or school system, except to the extent authorized by law.” (emphasis added)

So, the spokesperson for the U.S. Department of Education says that they are funding development of curriculum, but the Department is expressly not authorized to direct, supervise, or control curriculum.

First let me caveat this by saying that this is my initial reaction, and does not represent any sort of studied legal opinion.  What I’m about to say is based solely on the quoted statute and my background knowledge of the law.

As sympathetic as I am with attempts to argue the DoE out of existence on legal grounds, I think that Mr. Greene is barking up the wrong tree here.  Unless I’ve forgotten everything I know about federal law, direction and supervision are going to be interpreted by courts to mean some sort of actual authority; in other words, absent someone from the DoE ordering a school district to make a specific change in the curriculum or else, there’s probably not going to be a violation found by any court of competent jurisdiction (which is to say a federal court).   And the “or else” had better not be the cutting off of a purely discretionary financial incentive that the DoE is under no obligation to deliver anyway, or it’s not going to count as an “or else”.  It really is illegal for the federal government to commandeer the legislatures of the various states (NY v. US, Printz v. US) but nothing has prevented them from offering money in return for passing alcohol consumption or DUI laws.

It’s also not clear that the language “forbids” direction and supervision.  It merely says that no program instituted by the DoE can be construed as authorizing direction and supervision.  Now, the theory of limited powers suggests that the DoE can’t do anything that’s not explicitly authorized.  But let’s be realistic here: the theory of limited powers also suggests that the DoE shouldn’t exist.

Now all this would be different if the statute said that the DoE simply could not, say, “develop or supervise the development of any curriculum… designed for educational institutions”.    That would be a ban on the development of curricula full stop.  But that’s not what it says.  It says the DoE can’t mess with the curricula of educational institutions, which is (probably) to say the existing curricula of educational institutions.

Now, I’ve long thought that the federal government giving states back their own money in return for, say, imposing drinking age laws, was the most obviously coercive move in the universe, and clearly represented federal “control” of state legislative apparatus.   The federal government gets its money from taxes, and the power to tax, as they say, is the power to destroy.  But I also recognize that almost no one agrees with me about this, certainly not any judicial opinion that I’ve ever read.  Indeed, “the power to tax is the power to destroy” language comes from McCulloch v. Maryland, which is about how the states can’t tax the feds (not the other way around).

So I admire Mr. Greene’s creativity, but the argument is almost certainly a non-starter.

Comments

  1. Roger Sweeny says:

    Michael,

    I think you may be jumping too quickly here. If you look at the legislative history of, say, the 55 mile per hour speed limit, the proponents were quite clear (and proud) that they were creating a national speed limit. The “pass a 55 state limit or we won’t give you highway money” was just the method of producing it.

    But the creation of the Department of Education was very different. There was a lot of fear that it would “destroy local control of education” and such. Many of the proponents felt obliged to say that they were not creating federal control of education but just some extra money and help. I’m pretty sure that’s where that language comes from.