A case of unconstitutional immigration: the importation of England's national curriculum to the United States.

• Author: Boutwell, Jaime Serenity

ABSTRACT

The decline in the quality of the American educational system continues to spawn debate and criticism across the nation. Despite many suggestions and arguments on how to improve American schools, such as voucher systems, smaller class size, and higher teacher qualifications, the concern, while deeply felt, appears to be empty rhetoric. Teachers' low salaries, the disparity in funding among schools, and the lack of parent and community involvement demonstrate America's apathy towards education reform. To effectuate meaningful changes in education, American communities must reach consensus on education's purpose and importance.

The failure of schools requires America to take action. State and local governments appear slow to reform, and national studies reflect little improvement in the quality of education, especially for minority students. To expedite change, the U.S. Congress faces the question of whether to take the lead in educational reform. Faced with a myriad of potential education models, Congress may decide to follow England's lead and implement a national curriculum.

Congress may choose the English model because the United States' system of education is closely tied both historically and philosophically to England's system. Both British and U.S. educational systems originally operated on a strictly local level and discriminated against student groups. The two countries' national governments interceded to prevent racial discrimination in the United States and class discrimination in England. This national involvement has only continued to increase. In fact, Parliament's efforts at creating an equitable education recently culminated in the passage of a national curriculum. Although the United States has yet to make such a bold move, Congress' passage of education legislation and recent educational debate by the presidential candidates demonstrates America's willingness to seriously consider education as a federal issue. The U.S. Constitution, however, presents a serious obstacle to Congress' ability to federalize education and adopt England's national curriculum model.

This Note provides an overview of the legal development of United States and England's educational systems and the increased involvement of the national governments in these educational systems. Additionally, this Note compares the United States and England's legal and cultural differences and how these differences affect the costs and benefits of adopting England's model. Finally, this Note examines the federalist structure of United States government and Congress' constitutional powers, specifically under the Spending Clause and the Commerce Clause, to determine Congress' authority to federalize education.

1. INTRODUCTION: EDUCATIONAL CRISIS AND RESTRUCTURING

   Over the past fifty years,(1) the greatest challenge to improving U.S. schools has been combating the apathy that a majority of Americans have towards the importance of education.(2) This apathy exists despite numerous reports,(3) statistics,(4) and daily news(5) stories about the deterioration of U.S. education.(6) Although U.S. citizens often claim to care about education,(7) their lifestyles, and their priorities reveal a different reality.(8) A recent Department of Education report commissioned by Congress, found that the quality of education in the United States is steadily declining.(9) The report found that over ninety million Americans lack simple literacy.(10) Less than twenty percent of the students surveyed were able to compare two metaphors in a poem.(11) Four percent of students surveyed could not compute the cost of carpeting a room with a given size at a given price, even with the aid of a calculator.(12) The survey also found that a total of twenty-five percent of U.S. students fail to finish school.(13) In some urban districts, almost half of the enrolled student body drops out before the end of every school year.(14) Another major educational problem that the United States has failed to address is the continued racial discrimination and disparity in the treatment of minority students, particularly in under-funded urban public schools.(15)

   There are no easy solutions to the multitude of problems facing educators.(16) Discussions centered around vouchers, tracking, mainstreaming, equality in funding all schools, curriculum changes, higher standards, more qualified teachers, and greater parental involvement all seem to suggest overwhelming public concern. Yet the studies reveal that concern for the education of all students, not just one's own children, exists only in theory.(17) In reality, few Americans have organized themselves in an attempt to improve local schools or hold teachers, administrators, and principals accountable for improving the U.S. educational system.(18)

   The quality of education will only improve if the United States makes it a priority. First, U.S. teachers must receive compensation equivalent to other professionals, such as accountants, architects, doctors, lawyers, engineers, and judges, in order to attract the brightest and most dedicated persons.(19) The United States has poured more money into education than any other country;(20) yet teachers' salaries in many U.S. cities are lower than many other cities outside the United States.(21) Second, U.S. students need to spend more time in an educational setting. Statistics indicate that students in the United States spend 900 hours in school per year;(22) many hours less than their counterparts in other countries.(23) Additionally, U.S. students spend between twenty-five to fifty percent more time watching television (an estimated 1,200 to 1,800 hours a year) than they spend in school.(24) Third, the United States must place greater emphasis on the value of learning for the sake of learning.(25) Few Americans extol the virtues of students' learning for the purpose of becoming well-rounded, open-minded, conscientious, and effective members of society.(26) Fourth, students in the United States should learn how to be responsible citizens and active participants in a democratic system.(27) For the most part, the public no longer views schools as places of intellectual learning and character development, but rather as stepping stones to employment and professional success.(28) Thus, while Americans claim to place great value on education, their behavior demonstrates that much of the concern over the quality of education in the United States is empty rhetoric.

   Although scholars, policymakers, legal theorists, educators, and politicians disagree on the methods necessary to improve education in the United States.(29) they generally agree that education must be reformed on a large scale.(30) Experts generally agree that school systems should improve the quality of education across the nation. They agree that improvement is necessary because they recognize the great importance of education. The Supreme Court in the landmark opinion of Brown v. Board of Education.(31) heralded education's importance and the many functions of schools when ruling:

   Today, education is perhaps the most important function of the state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed services. It is the very foundation of good citizenship. Today it is the principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right that must be made available to all on equal terms.(32) Despite the widely recognized need for high quality educational systems, the United States has experienced many educational movements that emphasize differing values.(33) Additionally, different states and communities believe in different ways of improving educational quality.(34) Consequently, in light of this disagreement, many questions arise as to how the United States should attempt to reach a national consensus on improving the quality of education.

   Congress has become increasingly involved in education through federal funding and legislation, such as the recently enacted Goals 2000: Educate America Act.(35) The recent involvement of Congress in education adds a new dimension to the question of who should define education.(36) The role of schools has reached a pinnacle in socializing, influencing, and broadening students because other traditional institutions, most notably the American family, have been weakened.(37) The decline of the influence of churches, synagogues, and community organizations has also increased the need for schools to socialize and educate youth.(38) These problems, combined with the increasing apathy of the American public, require that schools play an even greater role in helping Americans reach consensus in order to ensure the continued vitality of American democracy.(39) Within this context, the purpose of this Note is to determine whether Congress may take the lead in helping reach this consensus. More specifically, this Note will assess whether Congress can constitutionally implement a national curriculum similar to England's(40) 1988 Education Reform Act.

   Part I will demonstrate the need for educational reform. From there, however, this Note will argue that Congress does not have the power to enact a national curriculum either under the traditional interpretation of the Spending Clause or the Commerce Clause. Part II of this Note examines the relationship between law and education in the United States and England. Part II also discusses the United...