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The Confederate Lawyer
November 30, 2010

Federal Aid to Schools Is Unconstitutional
by Charles G. Mills
fitzgerald griffin foundation

GLEN COVE, NY — Some “conservative” governors seem eager to get the usual dose of federal “aid” to education. Similarly, some “conservatives” want to cut the budget of every federal department by 10 percent without considering how much harm certain departments do and without distinguishing between constitutional and unconstitutional government programs. The truth is that cutting federal aid to education by 90 percent would be better than cutting it by 10 percent.

In a previous column, I explained how most of the money we spend on education goes to hire mediocre teachers to take the load off good teachers, to hire administrators to frustrate teachers trying to do their jobs, and to create extracurricular distractions for students. The money does not help education; it harms it.

Federal money is even more harmful than state money for two reasons. First, virtually all federal involvement in education is unconstitutional. Second, the federal bureaucracy is even more remote than those of the states.

It is immoral for a person to take a position that requires him to swear to uphold the Constitution and to violate the Constitution while holding such a position. The Constitution does not have a provision allowing the federal government to involve itself in education or even to require education. The United States had a system of education when the Constitution was drafted, but the Constitution says nothing about education.

Some federal funding of education even predates the Constitution; land grants were made by the Continental Congress in the western territories for the purpose of building schools and colleges. The federal government, throughout our history, has provided various forms of military education, including the service academies and ROTC. None of these involved federal interference in local schools.

Before the 1860s, in fact, the federal government made no real federal attempt to control education. A short-term exception occurred when certain New Englanders serving as governors in the militarily occupied South tried to impose their model of public schools in parts of the South.

Widespread federal interference began under Franklin Delano Roosevelt with a school lunch program. The program was fairly harmless, but the theory behind it was not. It arose out of a novel interpretation of the Constitution in which every tomato grown on an apartment balcony was in interstate commerce, and every handwashing took place in the navigable waters of the United States. John F. Kennedy added another arrow to the federal quiver with his claim that student loans were a national defense action.

Today, these distortions of the Constitution have expanded to the point that we have a cabinet-level Department of Education, volumes of federal regulations governing local schools, massive transfers from the federal treasury to local schools, and the horribly misnamed “No Child Left Behind Act.” This act has nothing to do with children and everything to enriching the worst schools in the country and rewarding changes from bad to mediocre.

Quite apart from the immorality involved in distorting the Constitution, federal involvement in education is bad policy. The United States is a confederation of 50 states with a variety of traditions and needs. It is not a one-size-fits-all place. Federal controls cannot accommodate all the needs in the country and are necessarily unfair. Furthermore, channeling money up to the federal bureaucracy and back down to the local schools only enriches the power of the federal bureaucrats.

The federal courts have stripped the schools of religious content. Shortly after the Constitution was adopted, the passage of the First Amendment served to prevent any federal interference in the religious content of the schools. At the same time, schools had a strong religious content, and many states did have requirements regarding this content. For example, the Connecticut legislature required belief in predestination and presbyterian ordination to teach at Yale. The Supreme Court ducked the question of whether a state could establish schools that denied Christianity. This original and accurate meaning of the Constitution was that the moral content of education was determined at the local rather than at the federal level. Does anyone really want today’s Washington deciding what we should tell our children is right and what is wrong?

We should abolish the Department of Education and all its regulations. We should abolish all federal aid to education that would not have passed Constitutional scrutiny in the earliest days of our Constitution.

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The Confederate Lawyer column is copyright © 2010 by Charles G. Mills and the Fitzgerald Griffin Foundation, www.fgfBooks.com. All rights reserved.

Charles G. Mills is the Judge Advocate or general counsel for the New York State American Legion. He has forty years of experience in many trial and appellate courts and has published several articles about the law.

See his biographical sketch and additional columns here.

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