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United States

Constitutional & Legal Foundations


Colonial Precedents: Massachusetts passed a statute requiring the education of all children in 1647. Towns of 100 or more families were required by law to establish formal secondary or "grammar" schools that taught—in addition to religious values, reading, and writing—the subjects of arithmetic, Latin, and Greek. The colony's governing body required all parents living in a community of at least 50 families to employ the services of a schoolmaster who imparted, not just community and church values, but skills related to reading and writing. There was to be no charge for the children of Native Americans who wanted an education. Compensation to the schoolmaster was 50 pounds a year.

Parents were required to school their children under penalty of having those offspring placed in the custody of another master who would see to it they were educated until males reached 21 and females became 18. Towns could be heavily fined for noncompliance with the education statute.

Three years later, the growing colony of Connecticut did the same, its code drawn from the one passed in Massachusetts. Not only parents, but also masters responsible for children who were indentured servants, were required to send their charges to school. Fines were levied for noncompliance. Laws stayed in effect in both Connecticut and Massachusetts until independent state constitutions for both former colonies were written after the American Revolution. Parents in the colony of Virginia were also required to send their children to school, as education was compulsory. Failing to send one's children was to run afoul of Virginia courts.


Constitution & Federal Law: The United States Constitution makes clear that the founders wanted to place responsibility for the education of its citizens under the control of states and other jurisdictions, such as the District of Columbia. States derive their power and responsibility to their schools from the Tenth Amendment, since the federal Constitution itself makes no provision for federal control of education.

Each state writes its own statutes concerning education and amends or rewrites them as changing circumstances demand. Essentially, every state and jurisdiction must provide, maintain, support, and guide a system of public schools for the well-being and education of the citizens in that state. Each also must license and pay heed to the institutions providing private education. Because the governance of numerous school districts is enormous in scope and complexity, states in turn place primary responsibility for the overall operations into the care of administrators and boards overseeing a large number of administrative districts.

The federal government, however, has not absolutely absolved itself of the responsibility to provide material resources to U.S. schools or to step in should violations occur that appear to violate protections for citizens guaranteed by the constitution. In addition, the government throughout early American history set aside public lands to set benefit schools.

Following the precedent set in 1787, when Congress set aside land in the Northwest Territory, lawmakers passed the Morrill Act of 1862, setting aside federal lands for the purpose of building colleges and emphasizing agriculture and mechanical arts (engineering). The act was amended in 1890, taking into account the changing needs of state universities founded on public lands. Vermont congress member Justin Morrill was the prime instigator of the bill. Others in Congress expressed opposition to it; in fact, five years before its passage, the Morrill Act went down in defeat, vetoed by then-President James Buchanan. Although the pro-agriculture nature of the schools earned it the strong support of Southern lawmakers, it was after the South seceded that the Morrill Act was passed during the administration of President Abraham Lincoln. The law also had strong support from Midwest farming states.

Following the Civil War, many universities were finally constructed on the public lands set aside for that purpose, including several that offered educational opportunities in higher education to blacks. Many sons and daughters of farmers and working class Americans received the benefits of an education thanks to Morrill's bill. In addition, advances in scientific farming, wise agricultural practices, and healthier food standards also can be attributed to the establishment of those colleges. Several major U.S. universities trace their success back to land-grant beginnings, including the University of Florida, the University of Kentucky, Purdue University (Indiana), Clemson University (South Carolina), Pennsylvania State University, Ohio State University, West Virginia University, Oregon State University, and the University of Maryland.

Closely connected to the Morrill Act was the Hatch Act of 1887, allowing federal aid to enable operation of agricultural research operations at state colleges for the benefit of all citizens, since the country was dependent upon agricultural products. The federal government passed the Smith-Lever Act in 1914, establishing Cooperative Extension in partnership with the U.S. Department of Agriculture and the land-grant universities for educational and informational purposes.

In addition to aid for various educational institutions connected with agriculture, the government has mandated funding for vocational programs at the secondary level. This distribution of federal aid occurred during the Depression Era year of 1937 and was approved under legislation known as the George-Deen Act. The federal government under acts of 1962 approved additional aid for vocational training programs.

The National Science Foundation Act of 1950 established the National Science Foundation (NSF) as an independent agency. NSF funds science and engineering research projects and educational programs, and it actively promotes the dissemination of information in the fields of science and engineering. Congress also attempted to jumpstart research activities in the field of education when it passed the Cooperative Research Act of 1954. The purpose of the bill was to permit the Office of Education to encourage cooperative research by colleges, universities, and state departments of education. One of the primary areas of funding initially was research into mental retardation.

Concerned that the United States was losing power and prestige in the race to conquer space with the Soviets following the launch of Sputnik in 1957, Congress provided further funds for education research in 1958 under terms of the National Defense Education Act (NDEA). Among other functions, NDEA authorized student loans and other financial aid to higher education, particularly in science, mathematics, and modern languages. Another area of concern and funding was educational television and other media.

One of the more comprehensive programs of the 1960s was the Elementary and Secondary Education Act of 1965. Among various titles or sections, it offered aid to schools with a high percentage of low-income families to fund programs in special education, to enable school libraries to purchase materials, and to fund educational research, as well as additional purposes. The federal government through the Library Services and Construction Act of 1964 and the Medical Library Assistance Act of 1965 provided additional money for library projects and facilities.

The best known section of this 1965 legislation is Title I, by which Congress extended federal aid to the children of the poor in an attempt to provide them equal educational opportunities. President Lyndon Johnson personally endorsed Title 1 as the most compelling entry in his "Great Society" platform.

In 1981, Congress passed the Omnibus Budget Reconciliation Act during the Republican administration of President Ronald Reagan. This bill provided block grants to states, taking away some of the direct federal involvement in Title 1 that had been criticized by some politicians. Among other major changes at that time, Congress mandated that students applying for low-interest loans demonstrate financial need for funds. Other money for students proving need was available after passage of legislation approving Pell grants.


Issues of Church & State: In early America the connection between church and state was taken for granted, but the increasing diversity of the nation forced legislators and courts to consider the issue more carefully, particularly in response to immigration. Although the Quakers, Dutch Reformed, and other denominations operated schools during the colonial period, one of the largest explosions of parochial schools occurred between 1880 and 1910 with the influx of Catholic immigrants from Poland, Spain, Italy, Ireland, and other European countries.

The milestone political action by Catholic Church interests in America was a national convention of clerics and theologians convening in Baltimore, Maryland, in 1884. This resulted in the founding of Catholic University in Washington, DC, as well as detailed plans to establish a nationwide network of diocese-based schools as well as seminaries and convents for training priests and nuns. In time, churches came to build both elementary schools and high schools. Anti-Catholic sentiment was widespread, and anti-Catholic advocates claimed victory when in the 1920s Oregon legislators mandated attendance in public schools up to age 16, effectively stopping the spread of parochial schools.

In 1925, however, the right of religious denominations to operate schools was affirmed by a landmark decision of the U.S. Supreme Court. In Pierce v. Society of Sisters of the Holy Names of Jesus and Mary, the court opined that the state could regulate schools but not decide for parents what school they wanted for their children's education. A ruling in New York State later in the century allowed parents of public school children to send their offspring to religious instruction off public school premises.

One of the more significant issues in early twentieth-century education was creationism. States passed laws in support of a citizen's "right" to take Genesis literally with regard to Creation, thereby renouncing Charles Darwin's theories on the natural evolution of man from less significant species. In 1925 the Scopes Monkey trial brought the issue to a head, in a case against John Scopes, who taught evolutionary theory in violation of Tennessee's anti-evolution act. Although former presidential candidate and fiery attorney William Jennings Bryan won the trial, there was great public and press sympathy for defense attorney Clarence Darrow and for Scopes. Coverage of the Scopes trial by satirist H. L. Mencken caused many Americans to look skeptically at religion in general, and to begin talking heatedly about the need to keep churches out of state affairs.

Nonetheless, as late as 1999, the Kansas Board of Education passed a measure agreeing to prohibit questions on evolution from appearing on state high school standardized exams. The National Association of Biology Teachers supports classroom presentations of evolution, saying that it long has been a theory consistent with science, and it further recommends classroom discussion and study. Leading the religious vanguard against evolution is pro-Creation activist Jonathan Wells, who preaches that there is no scientific basis for evolution.

Other areas of frequent contention include character education, stopping short of religious instruction; attempts to convert children to a particular faith; and remarks that might offend some in the classroom that belong to minority faiths, practice Wicca, or have no faith at all. Some critics attack not only school prayer or celebration of religious holidays but also the mandatory recital of the Pledge of Allegiance due to the phrase "one nation under God." Court cases in Maryland, Pennsylvania, and other states have prohibited state legislatures from mandating the saying of daily Bible verses or a prayer identified as sectarian, which would effectively favor Christianity over other religions.

On the other hand, in the 1990s some parents and children were concerned that the zeal to separate church and state was depriving elementary and secondary students of some practices that interfered with neither the beliefs nor the privacy of others. For example, they perceived that students could wear clothing with slogans of a non-religious nature, but they were not permitted to wear clothing with Biblical slogans. By the late 1990s, the Department of Education published guidelines allowing children of Christian and other faiths to make references to their religious beliefs while addressing normal school subject matter and to bow their heads before meals to say grace. The NEA also became involved, attempting to create a climate where respect for a person's personal beliefs was the norm. In addition to Christianity, many schools have made a point of safeguarding the beliefs of minority religions in a school, such as Islam or Buddhism. By the late 1990s, schools also were asked to protect the rights of individuals who openly professed no faith or alternate faiths such as Wicca.


Civil Rights & Education: As part of the culture of slavery, nineteenth-century legislators passed laws against the education of blacks. Laws that deprived people of a chance to better themselves were a most egregious but effective method to keep a whole people in bondage. While some landowners provided for the rudimentary teaching of writing, reading, and arithmetic for household slaves as a matter of self-interest, others prohibited such learning entirely, and a whipping or other physical punishment could be administered for violations. The only southern states permitting landowners to educate slaves before the Civil War were Kentucky, Maryland, and Tennessee. Because southern blacks outnumbered landowners in many southern states, there was near mass hysteria behind the legislation to keep blacks uneducated and to prevent rebellion.

Rebellions nonetheless ensued. A rebellion in South Carolina in 1739 resulted in murder of 75 slaves, and a later rebellion at Charleston in 1822 was also put down with a loss of life. Both the abolitionist movement in the South and activist efforts to educate southern begroes were dealt a serious setback in 1831 when a bloody rebellion known as the Southampton Insurrection convinced landowners that the education of slaves had to be controlled or outlawed. Nat Turner, a slave in Southampton County, Virginia, organized a revolt with dozens of runaway slaves bent on gaining freedom at all costs. In the end, the rebellion was quashed, and Turner was executed.

Not even the Civil War, Abraham Lincoln's Emancipation Proclamation, and the passage of the Thirteenth Amendment (1865) abolishing slavery and the Fifteenth Amendment (1869) guaranteeing civil rights stopped serious educational inequities from being practiced in many parts of the South. So-called "black codes" and later "Jim Crow" legislation enforcing school and public-place segregation were enforced from about 1865 until long into the twentieth century. White families humiliated Caucasian teachers who came from the North to educate Negro children, and a few teachers were murdered or falsely accused of the "crime" of miscegenation (the marriage or cohabitation between white and nonwhite persons).

Not that the education of blacks in the North was any more progressive in many areas. In New England, abolitionists gradually agitated for desegregation, but both white and black townspeople, and even educators, blocked what was legally permissible, many arguing for the social benefits of separate schools. In Philadelphia, a public school administrator who opened a school for blacks in 1822 actually offered white citizens an apology for doing what in other parts of the world would become known in full arrogance as "picking up the white man's burden." As an exception, Quaker schools in Pennsylvania and New England offered equal educational opportunities to all students.

In Indiana in 1850, many lawmakers not only wanted to ban any new settlers with a "drop" of black blood from settling in the state, but many wanted to pass a colonization attempt to banish existing blacks to Africa. Even legislators opposing such legislation as unconstitutional sometimes commented on what they perceived to be the "inferiority" of blacks. Laws of Indiana and Illinois allowed the establishment of non-integrated schools for Caucasian students.

Not until 1855 did a state—Massachusetts—aggressively mandate integration of the races in public schools, and that state succeeded because of a relatively low population of blacks and a strong presence of influential abolitionists. New York, with its record of putting to death blacks suspected of arson in the nineteenth century and a very large black population, failed to pass statutes to end segregation until 1900.

Many black parents supported segregation, realizing that their children could be injured, or even killed, by forcing the issue and integrating public schools. Booker T. Washington, a revered black educator, advised blacks to be passive and to turn the other cheek. The Supreme Court's Plessy v. Ferguson decision in 1896 interpreted the Fourteenth Amendment as permitting segregation, if facilities were "separate but equal." What blacks received in reality were worthless, dated textbooks; substandard and antiquated school buildings; and teachers whose credentials usually failed to match those of teachers in schools populated mainly by white children. Historian John D. Pulliam reports that the costs of educating white and black children at the time were $102 and $67 respectively, effectively showing that separate facilities were, in fact, unequal.

Because schooling of blacks in many colonies and later in states was either repressed or outright forbidden, it took some time for a black educator to emerge as a national champion for the education of African Americans. During the late nineteenth century, a competent teacher with ambition and rhetorical genius named W.E.B. Du-Bois became this leader. Both boys and girls found equal welcome in his classroom, although facilities in black schools were risky by safety standards and furniture often was borrowed and rickety. DuBois became a nationally known writer, educator, and social critic, fiercely opposed to social and educational inequities because of race.

Years later, when President Dwight D. Eisenhower appointed Earl Warren as Chief Justice of the U.S. Supreme Court, the issue of "separate but equal" was revisited. In 1954, the Supreme Court utterly reversed the 1896 Plessy v. Ferguson ruling, stressing that separate facilities for education cannot be defined as equal. Immediately after the 1954 Brown v. Board of Education ruling, a number of southern states tried to bypass the law but were thwarted when they tried to pass legislation that was blatantly racist. One county in Virginia tried to declare its public school system at an end, financing instead private schools that were segregated, until the U.S. Supreme Court intervened. Other states continued segregation as usual, flaunting their disregard for the Supreme Court ruling and erecting billboards all over the South that called, unsuccessfully, for Chief Justice Warren's impeachment.

Some 2,300 school districts defied the Supreme Court ruling, and agitated Caucasians in Little Rock, Arkansas, picketed a school undergoing integration and defied federal troops. These actions inspired the black and white supporters of the Reverend Martin Luther King to express powerful opposition through boycotts, marches, and sit-ins at drugstore counters and department store cafeterias. As part of their political action, marchers demanded integration and better educational opportunities for blacks, including full admission to colleges and professional schools in institutions where this had been prohibited. No longer voiceless or uneducated, the civil rights movement was manned by many African-American professional people. There were twice as many blacks in the various professions in 1957 as there had been in 1940, according to historian Samuel Eliot Morison.


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