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

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.

I. 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 States' gradual movement towards a more centralized educational system. Part III distinguishes governmental and ideological differences between the United States and England. It also discusses the costs and benefits of adopting a centralized curriculum and delegating curriculum power to state and local authorities. Part IV addresses whether Congress could adopt and develop a national curriculum similar to England's. Specifically, Part IV examines whether the Spending Clause and Commerce Clause permit Congress to enact legislation federalizing education. Finally, Part V concludes that the United States' educational crisis should be resolved by changes implemented at the state and local levels.

II. THE DEVELOPMENT OF EDUCATION IN ENGLAND AND THE UNITED STATES

England's educational system has continually served as a practical model for the United States. Besides the convenience of shared traditions,(41) language,(42) and legal principles,(43) many of the same educational thinkers influenced the foundation of both the United States and England's educational systems.(44) As a result, the two nations share a number of similar educational philosophies,(45) schooling trends,(46) and policies.(47)

During the nineteenth and twentieth centuries, both the United States and England created greater access to education for larger numbers of students. In the United States, reform centered on greater access for African-American and females, while England attempted to increase access to students from lower socio-economic classes.(48) The national governments of England and the United States became increasingly involved in eradicating the discriminatory principles embedded in their educational systems. In England, national Parliamentarian laws have helped persons from lower socioeconomic classes obtain access to quality education and have culminated in the recent development of a national curriculum.(49) Schooling in the United States initially evolved through state laws and state constitutions that gradually established and funded public schools.(50) The United States federal government, however, through both the federal courts and Congress, has increasingly become involved in shaping educational policy in the last fifty years. Most notably, in Brown v. Board of Education of Topeka, the U.S. Supreme Court sought to end racial segregation in the American educational system.(51) Congress has additionally begun passing more comprehensive federal legislation, such as the Smith-Hughes Vocational Educational Act of 1917 and the G. I. Bill of Rights.(52)

A. England's Development of a National Curriculum

England's modern educational system can be traced back to the late seventeenth century, where control was exercised by private individuals and institutions, mainly churches.(53) Even in the nineteenth century, however, the opportunity to attend school largely depended on a family's financial status and its area of residence.(54) England's schools reflected the country's divided class structure.(55) The public-grammar school tradition trained and developed wealthy boys to become "Christian gentleman."(56) Since these boys were to become England's future leaders, they received character training and elitist knowledge that would reinforce and bolster their exclusive social rank.(57) In contrast, the English elementary schools trained the "low orders" and supplied England's workforce with the skills necessary for factory production jobs.(58) These low order children learned to read simple written instructions, understand their place in society, act obediently, and respect the property of their betters.(59)

Despite the desire of England's middle class to limit the education of the poor,(60) the government showed some concern about the educational conditions of these children. In the nineteenth century, England enacted educational laws to regulate the health and morals of children who were apprentices at industry schools.(61) Additionally, the English government set forth its first educational grant in 1833 because of the overwhelmingly small number of students receiving quality education.(62) This educational grant instigated debate over England's national involvement in education.(63) England developed subsequent grants, educational commissions, and legislation over the nineteenth century, all focused on the nation's economic goals and the need for a trained labor force.(64)

The English educational system slowly changed, however, causing some elementary skills training schools to come very close to providing higher-level secondary education.(65) The Education Act of 1902 and 1944 laid the foundation for England's national curriculum, which was officially introduced by the 1988 Education Reform Act. The Education Act of 1902, while by no means revolutionary in regards to the educational system's class division, gave local educational authorities the power to provide non-elementary educational opportunities to students.(66) This controversial Act allowed students with high aptitude to attend secondary schools even though their parents could not afford tuition.(67) The 1902 Act created a more organized and better-structured system of education that proved necessary for future national control.(68) While its effects would not be fully realized for years, the 1902 Act completely changed English education.(69) The Act encouraged schools to focus on the development of children as individuals,(70) whereas the schools' prior focus centered only on the student's ability to contribute to a stronger national economy.(71) Thus, Parliament codified the principle that students are more than just a means to a [national] economic end.(72) As a result of the 1902 Act and the subsequent legislation it spurred, English law recognized the principle that all students should have an equal opportunity to receive education. Scholars suggest, however, that the law did not reflect the reality of a divided and unequal educational system.(73)

The 1944 Act helped the two traditions of elementary and secondary education to merge by abolishing the centralized control over curriculum and regulations in secondary schools.(74) Throughout the 1940s and 1950s, however, a dual system of education still existed in which "grammar schools [were] for roughly the top 20 per cent of the ability range and secondary modern schools for the rest, who were inevitably seen as non-academic or less able."(75) In the twenty-five years preceding the national curriculum, England attempted to create greater equality through comprehensive schools and curriculum experimentation.(76) Despite these reforms, however, England's goal of equal education for all students has never been fully realized.(77)

The 1988 Education Act combines England's traditional educational purpose of producing a properly trained workforce with its more recent concern for equal access to education. By requiring all students to learn the same subjects, specifically selected for their economic and utilitarian value, the national curriculum theoretically gives all students the opportunity to reach their full potential.(78) The national curriculum requires that students reach certain prescribed educational goals and learn predetermined information at the key ages of seven, eleven, fourteen, and sixteen.(79) The students must demonstrate a mastery of requisite knowledge within the subjects of mathematics, English, science, technology, modern languages, history, geography, art, music, and physical education.(80) Thorough analysis of the national curriculum's impact must be postponed until a full generation of students has completed the full eleven-year curriculum.(81) The statute's purpose, its immediate implications for teachers and students, and its controversial nature,(82) however, all demonstrate the difficulties of nationally legislating a system that requires the cooperation of so many diverse groups (students, teachers, parents, administrators) in order to effect change.

The national government's involvement in education in both England and the United States arose primarily due to financial and equality issues. The expenditure of federal funds(83) increased the U.S. federal government's involvement in educational issues.(84) Furthermore, the U.S. Supreme Court began interpreting the Constitution in a way that would provide Congress with the power to pass legislation granting greater educational opportunity to African Americans and to students with disabilities.(85) Despite federal legislation and federal court intervention, however, control over the educational curriculum has remained in local hands.

B. The U.S. Movement Toward Federalized Education

1. A Historical Perspective

Traditionally, schools in the United States developed under local and state control.(86) The first colonial schools were started by church groups to meet local educational needs.(87) During the Revolutionary period, states took responsibility for education through their constitutions.(88) Additionally, the states adopted the federal Constitution in 1789, which gave Congress no power to regulate education.(89) The states ratified the Tenth Amendment, which among other things, implicitly confirmed their power to control education.(90) The tradition of state regulation of education has continued with forty-nine out of fifty state constitutions containing "variously worded education clauses, some more explicitly rights-based than others."(91)

Unlike English schools that were divided based on the students' socio-economic class and future anticipated employment, U.S. schools were open to almost all white students for the purpose of forming civic-minded "Americans."(92) Due to an increasing number of immigrants, schools emphasized the importance of education for citizenship over employment.(93) Elementary school curriculums remained fairly consistent throughout the United States from the mid-nineteenth century through the first half of the twentieth century.(94) Elementary schools focused on teaching basic skills, such as reading, writing, and arithmetic for the primary grades, while the upper grades learned "a combination of advanced basic skills and increasing amounts of science, history and geography, art, music, and physical education."(95)

Education in the United States has been affected by social, political, and historical events. Beginning in the 1950s, education shifted from the child-centered progressive approach(96) to a more rigid, authoritarian style based on the nation's concern over competition with the Soviet Union.(97) By the mid-1960s, however, states initiated a shift from traditionalism(98) back to progressive education.(99) An emphasis on educating the "whole child" emerged out of the anti-war movements and the War on Poverty.(100) States challenged the traditional views of schooling, finding them overly competitive and goal-oriented,(101) During the 1970s, however, experts viewed declining test scores, increased drop out rates, and rising student violence as products of progressive education. This view led to an educational movement(102) known as a shift "back to basics."(103) This movement, greatly influenced by the 1983 publication of A Nation at Risk,(104) focused on students' mastery of core academic subjects.(105)

These trends are significant because they demonstrate how culture and education are intertwined.(106) Although the educational foundation and general structure remain the same in the United States, the trends illustrate how Americans expect education to serve different purposes depending on current political and social events.(107) Thus, the United States seems unlikely to implement meaningful educational reform, beyond the shifting of educational approaches, until U.S. culture develops a true concern for the quality of education.

2. Goals 2000

In March 1994 President Clinton signed Goals 2000: Educate America Act (Goals 2000) into law. The purpose of this Act was to end mediocrity in American education.(108) The roots of Goals 2000 began in 1989 when President Bush held an Educational Summit with the nation's fifty governors "to establish a set of national educational goals and to reallocate educational policy responsibilities among the federal, state, and local governments."(109) Goals 2000 emerged after years of incorporating the goals from the 1989 Education Summit meeting(110) into statutory language. Goals 2000 has dramatically increased the role of the federal government in making educational policy.(111)

Goals 2000 is unique(112) because it goes further than previously passed legislation to impact local educational systems,(113) Previous federal educational laws traditionally delegated funds within narrowly defined areas, whereas Goals 2000 seeks to create a "coherent, nationwide, systematic education reform."(114) Goals 2000 encourages states to voluntarily adopt opportunity-to-learn standards(115) and to apply to the federal government for certification in an effort to develop a national curriculum.(116)

To oversee the structuring of the educational criteria, Goals 2000 established the National Education Standards and Improvement Council (NESIC).(117) This Council works with states to ensure that they receive federal certification for their educational content and opportunity-to-learn standards.(118) Congress also sought to test students in grades four, eight, and twelve to ensure their competency over challenging subject matters.(119) Congress employed its traditional method of seeking state compliance with federal legislation in education(120) by conditioning federal grants upon the states' adoption of Goals 2000.(121)

Although Goals 2000 presents a more vague and "voluntary" national system which differs greatly from the rigid uniformity of England's national curriculum, the Act demonstrates a definite step towards the English system. Goals 2000 seeks to establish a national consensus for educational improvement through the National Education Goals Panel (NEGP), an independent agency created by the Act, which implies that this law is just the first step towards increasing the federal government's role in education.(122) Furthermore, Goals 2000 calls for an international educational program to study the educational systems of foreign countries and develop an exchange with educators internationally.(123)

Given the similar educational movements and philosophies in the United States and England, the United States seems likely to continue to follow England's lead.(124) Public disillusionment with the current educational system has created the opportunity for Congress and future presidents to seek a national solution to the complicated state educational crisis.(125) Thus, Goals 2000 is likely the first step towards the United States creating a national curriculum modeled after England's national curriculum. Questions arise, however, over the policy and legal ramifications of a U.S. national curriculum, and most importantly, whether Congress has the power to create and implement such a curriculum.

III. COMPARING THE UNITED STATES AND ENGLAND: THE POTENTIAL EDUCATIONAL AND LEGAL IMPLICATIONS OF ADOPTING ENGLAND'S SYSTEM

The United States and England, due partly to the unique historic relationship between the two,(126) share common philosophies in education.(127) Historical, social, and economic events have caused the two nations to look to each other for support and guidance in many areas, particularly education.(128) England has already implemented most of the United State's current reform ideas,(129) although England's recent centralization of education raises separate issues due to the two countries' differences in government structure and ideology. This section discusses how these differences influence the ability of the United States to follow England's lead in educational reform.(130) Furthermore, the advantages and disadvantages of centralization as well as the benefits and problems of local and state control of curriculum will be analyzed. Ultimately, the U.S. federal government will continue to play a role in education.(131) Yet, U.S. governmental structure and ideology require that states maintain ultimate substantive control educational reform.(132) Therefore, the role of Congress should be limited to providing funds under the Spending Clause,(133) and the federal courts should interpret the Constitution in such a way that honors state autonomy and the fundamental concept of federalism.(134)

A. How Governmental and Ideological Differences Impact Education Law

The U.S. government emerged from direct opposition to England's control over the colonies. As a result, the United States developed a contrasting governmental structure, while still maintaining strong cultural ties with England.(135) The Mother County's cultural and social influences on the United States as well as the countries' consistent economic and intellectual relationships continually influence the nations' consanguinity, which helps explain their exchange of ideas on educational policy.(136) Both nations based their educational systems on similar thinkers, such as Rousseau,(137) experienced similar educational movements,(138) and provided disparate educational opportunities.(139) Thus, the fact that both countries have adopted a "market approach" focusing on schools as training grounds for students' future jobs is not surprising.(140)

This educational focus, however, has different implications for the United States and England, because both have fundamentally distinct structures of government. The U.S. Constitution delegates limited powers to the federal government, while the states retain the majority of the power to regulate the health, welfare, and morals of individuals.(141) England, on the other hand, is the major administrative division of the United Kingdom, which is a constitutional monarchy.(142) Although the United Kingdom lacks a written constitution, it has approximately a thousand years of experience as a unified entity with authority derived from common law, practice, and statutes.(143) England's governmental structure makes creation of a centralized educational curriculum easy and politically palpable, because the bicameral Parliament simply passes whatever laws it deems appropriate.(144) For this reason, England's creation of a national curriculum does not raise the governmental power questions that the United States must face.

Unlike England, the constitutional structure of the United States purposely maintains a system of checks and balances designed to prevent any one branch from exercising too much power.(145) Ironically, although this system emerged in opposition to England's rule of the colonies, it was built upon the ideas of English legal theorists such as William Blackstone and philosophers like John Locke.(146) The Founding Fathers were well aware of the existing regional differences and the necessity of maintaining the sovereignty of the individual states.(147) The general police power of the states has remained important in large part because of the size and population of the United States.(148) In contrast to England's thousand year existence and relatively homogeneous population,(149) the short history of the United States includes the integration of masses of immigrants with a wide range of ethnic, racial, religious, and cultural backgrounds.(150) This rich cultural diversity contributes to the practical difficulty of administering a comprehensive federal education program. Additionally, many regions of the United States appear to have developed their own personalities, and consequently attract persons of similar religious, ethnic, cultural, racial, or political backgrounds.(151) Thus, state laws on issues including family, criminal, and educational law can widely differ due to the divergent views and backgrounds of persons in the fifty states.(152) These differences in state law are generally considered one of the U.S. government's strengths because they provide for greater political accountability,(153) public participation,(154) and experimentation.(155) Therefore, the geographical size, population, diversity, and regionalism of the United States reinforce state sovereignty and the need for Congress to consider these governmental differences when passing educational laws.

Besides governmental structural differences, the ideologies of the United States and England, while becoming more convergent, originated from separate premises. While defining any nation's ideology is difficult and requires many generalizations,(156) the educational system in the United States began with the primary goal of creating responsible, educated citizens who would participate in the democratic system.(157) As a new nation, the United States quickly developed a thriving middle class(158) and attracted diverse individuals from far off countries.(159) Therefore, the Framers and early educators circuited their enthusiasm for the new federal republic into the nation's educational ideology. As a result, schools helped develop a strong democratic tradition,(160) while evolving based on these republican ideals.(161) The schools groomed white students, regardless of economic or social class, to embrace a common, national ethos, while still maintaining their individualism.(162) England, on the other hand, historically maintained divergent schools based on students' wealth and social status.(163) England's ideological focus was to produce educated individuals who could perform well within the career path that their aptitude dictated.(164)

Accordingly, Parliament recently passed the Education Acts of 1988 and 1993 to produce a market-like educational structure, which identifies "effective" schools.(165) Although the changing ideology of the United States has followed England's lead by adopting more competitive measures,(166) Americans appear ambivalent to the effect of this ideological transformation on democracy.(167) As debate in the United States escalates on issues of vouchers and school choice, the ideology of the United States appears on the brink of intersecting England's free market educational experiment.(168) While the United States' focus on producing a powerful economic workforce is undoubtedly important, Americans should not forget the traditional ideological goal of producing socially and politically responsible citizens.

B. Advantages and Disadvantages of Adopting England's National Curriculum

Two lines of reasoning support the adoption of a uniform national curriculum by the United States. First, society has an interest in creating a national education system that provides all students with equal educational opportunities.(169) By adopting a national curriculum, society has an objective standard by which to measure the quality of schools. This in turn fosters health competition. For this reason, England has implemented the national curriculum.(170) In England, national inspectors utilize standardized criteria for rating schools and identifying the school's strengths and weaknesses.(171) These evaluations then become public knowledge.(172) By identifying the ineffective schools, free market competition works either to eliminate or ameliorate those schools.(173) Thus, the national curriculum as well as student and school assessments work together to create incentives for schools to improve their overall quality and meet the national standards.(174)

This English competitive system in which some schools fail and others thrive has earned much criticism.(175) Specifically, the development of national standards by government agencies, often persons with little or no educational experience has generated much controversy.(176) Teachers, in particular, asserted that their position as educators and professionals was undermined.(177) Instead of focusing on student learning, flexibility, and student choice in material, standardized tests required full attention and often diverted resources away from other important educational programs.(178) Many educators also experienced dissatisfaction with the pressure of school inspection and preparing students of differing abilities for standardized tests.(179) These tests, as with most standardized tests, raise serious questions about their validity and about what they actually measure.(180) Overall, the competition between schools, which the national curriculum seeks to promote, asks society to determine whether identifying and singling out schools that fail to meet national standards promotes better quality schools. In the end, society must determine if the national standards, student assessments, and school inspections foster the type of learning environment in which students can develop intellectually as well as personally.

The second line of reasoning for adopting a standardized curriculum is national interest in creating a common ethos.(181) The standardization of education allows for all students to share a common cultural language because they have studied and examined the same materials.(182) This shared knowledge base spurs intellectual and social development by enabling everyone to fully participate in discussion of ideas.(183) Consequently, all students will have an equal ability to participate in the democratic process since no student will have an educational advantage from the material that their school taught.(184) If students, despite the diversity of their backgrounds, have a common educational experience, genuine communication is more likely to occur.(185) In addition to facilitating communication, a national curriculum may better represent interests of divergent groups.(186) Instead of local majority views controlling, the national standardization process would allow the views of minority groups to be included.(187) The question of whether minority views could ever be adequately represented, however, remains at issue.(188)

C. Advantages and Disadvantages of State and Local Control of Curriculum

Ideally, local control of curriculum sends a message to teachers, administrators, parents, and students that they have a voice and role in making their local school the best it can be.(189) Local control also highlights the community's duty to be involved in ensuring that the school provides the type of education that is most in keeping with community values.(190) Local schools can encourage students, parents, and teacher to partake in school board meetings on the chose of curriculum, to learn about how their school spends funds on developing curriculum and textbooks, and to participate in local committees on school curriculum improvements.(191) This active involvement of community and school persons ensures that local standards help guide and invigorate teachers to maintain optimum classroom environments for their students.

This local control also helps to place students at the center of the learning process(192) and validates the roles of teachers as professionals who can best decide how to meet locally promulgated standards.(193) Since standards and curriculum are established on a local level, the public has more of an opportunity to voice opinions on the curriculum selection and to hold elected officials accountable.(194) Like schools with national curriculum, the students should be capable of demonstrating their knowledge through a fair testing or evaluation process; however, the tests should measure what the students learned from the classroom experience.(195)

While scholars generally consider experimentation and flexibility advantages of local control,(196) lack of stability and structure in curriculum can obstruct the delivery of consistently strong educational opportunities.(197) Politicians oftentimes advocate educational policy in order to gain attention and popularity without carefully weighing its implications or efforts on the current system.(198) The flexibility of teachers having choice in what they teach and how they teach it can be a disincentive to teachers to develop a highly structured or formalized classroom environment.(199) Students may also be disadvantaged if they transfer to another school district because they may not be prepared or may be forced to repeat material. Additionally, students who apply to colleges may be subject to disparate treatment based on their school system's curriculum and assessment methods, such as lack of advanced placement courses or deflated grading systems.

Even though local and state curriculum control prevents nationwide school comparison, the diverse school curriculums still enable and actually encourage competition. Schools and communities are likely to work diligently to design curriculum to earn such reputations because parents are attracted to areas with reputations for high quality schools. Additionally, many states use statewide tests to compare schools. These tests, however, have the advantage--over national tests--of comparing a smaller, more concentrated group of students. Thus, the test results are more likely to motivate students since they are more familiar with the school districts to which they are being compared and less likely to attribute their test scores to factors that they consider out of their control. Also, teachers, administrators, parents, and students have greater flexibility and control to restructure classes and curriculum as needed to improve these test scores.

IV. IMPORTATION OF A NATIONAL CURRICULUM TO THE UNITED STATES

Unlike England, in which the Parliament has supremacy and can decide to pass whatever laws it so desires,(200) the U.S. Congress only has power to pass laws as provided by the federal Constitution.(201) Although a few scholars have made creative arguments for federal right to education,(202) neither the federal Constitution nor history establishes education as a systemic fundamental right.(203) Accordingly, the Supreme Court has found education to be a state benefit(204) and thereby, implicitly affirmed the state's power to dictate educational policy.(205) Nonetheless, legislation like Goals 2000 sets the precedent for Congress to mandate a national curriculum. Congress, however, must base such legislation(206) on either the Spending Clause(207) or the Commerce Clause.(208)

This section provides the legal context for interpreting the meaning of the Spending Clause and the Commerce Clauses and analyzes whether that grant of power enables Congress to mandate a national curriculum in public schools.(209) Determining the meaning of the Spending and Commerce Clauses requires analysis of their language,(210) the historical and traditional interpretation of the clauses by the Court and scholars,(211) the current, applicable Supreme Court jurisprudence,(212) and functional analysis,(213) Before interpreting the clauses, this Note will discuss the federalist structure(214) of the Constitution because this structure illuminates the constitutional powers of Congress and the limitations of those powers. The Spending Clause, under which Congress has already passed federal education legislation, will also be discussed. Finally, the constitutionality of Congress passing a national curriculum under the Commerce Clause will be analyzed. Although Congress has not yet attempted to regulate education under the Commerce Clause, it is likely to prefer use of the Commerce Clause to the Spending Clause because it provides Congress greater freedom to impose mandatory regulations. Under the Commerce Clause, Congress would not have to provide money to the states or limit its regulations to those that the states accept as a condition to receiving federal funds.

A. Federalism: U.S. Government's Structure and its Importance to Constitutional Interpretation

Federalism, the dual sovereignty between the states and the federal government, serves as the foundation of the U.S. government's structure.(215) The Framers, noting their dissatisfaction as former colonists with England's control, created a federalist system.(216) They wanted to ensure that the government's structure delegated control to the people and ensured protection from tyranny.(217) Thus, when the Framers constructed the Constitution to replace the Articles of Confederation, the states retained all powers not specifically delegated to Congress.(218) The Framers decided to limit the power of the federal branches to narrow areas that required uniformity and to reserve the remainder of the powers to the states.(219) James Madison best described the states and federal government's relationship when he wrote:

   The powers delegated ... to the federal government are few and defined.
   Those which are to remain in the State governments are numerous and
   indefinite. The former will be exercised principally on external objects,
   as war, peace, negotiation, and foreign commerce.... The powers reserved to
   the States will extend to all the objects which, in the course of affairs,
   concern the lives, liberties, and properties of the people, and the
   internal order, improvement, and prosperity of the State.(220)

The Framers considered this federalist structure of government to be such a powerful mechanism for preserving liberty that the Bill of Rights was only a controversial afterthought that some Framers viewed as superfluous and dangerous.(221) Since the Constitution not only divided power between the states and federal government, but also limited each branch of the federal government to specific enumerated powers,(222) the Framers were confident that this system of checks and balances would preserve a representative democracy.(223)

The Framers actually relied upon this tension between the state and federal governments to create a checks and balances system that prevents abuse.(224) In fact, James Madison concluded that "the different governments will control each other; at the same time each will be controlled by itself."(225) This intentional conflict, between the sovereign, independent governments, works to Americans' advantage.(226) In Gregory v. Ashcroft,(227) Justice O'Connor delineated the following roles and advantages of a federal system:

   [It] assures a decentralized government that will be more sensitive to the
   diverse needs of a heterogeneous society; it increases opportunity for
   citizen involvement in the democratic processes; it allows for more
   innovation and experimentation in government; and it makes government more
   responsive by putting the states in competition for a mobile
   citizenry.(228)

These benefits provide adequate reason for the preservation of the federalist framework. Thus, when interpreting the Constitution, courts must respect this purposeful division of powers between state and federal governments.

While federalism has always generated much controversy,(229) the relationship between the federal government and the states has increasingly blurred.(230) Over time, the federal government has gradually displaced the political and legal authority of the states.(231) Admittedly, many unavoidable political, constitutional, technological, and economic changes led to a more centralized government in which society affords less deference to the states' powers.(232) Although states have retained some powers and still maintain sovereignty, dual-sovereignty federalism has waned, despite its presence in theory.(233) Instead, the concept of "cooperative federalism"(234) emerges to justify and explain the increased role of the federal government.(235) Consequently, Americans have become increasingly comfortable looking to the federal government for solutions to local problems.

Recently, the Supreme Court has appeared interested in revitalizing the dual-sovereignty federalism model.(236) This interest is of great significance since the Court interprets the meaning of the Constitution for the other branches of government and its interpretation may limit Congress' law-making ability.(237) In struggling to resolve power disputes between the state and federal governments, the Court has developed two doctrinal constructs.(238) The first concept is the traditional "delegated powers" construct, which narrowly defines the powers of Congress to those areas the states are ill-equipped to handle.(239) The second doctrine, the "enclave" construct, recently emerged and broadly characterizes the federal government's power to include all areas that the states have not traditionally regulated.(240) The Court's decision in Garcia v. San Antonio Metro Transit(241) must be read as a return to the delegated power construct if the Framers' idea of federalism is to retain any meaningful presence in U.S. domestic affairs.(242) Using the delegated power construct, the Court determines whether regulation was properly within the national government's power.(243) This determination would be based upon "an assessment of the national interest in the object of the regulation, the extent to which the object of the regulation involves interstate independence, and the appropriateness of the object for national uniform regulation."(244) As a result, courts have recently recognized the interest of states in preserving local democracy by making more officials accountable, allowing for experimentation, and promoting local values.(245)

In determining whether a law falls within Congress' power, courts should employ federalism's delegation construct. The Supreme Court's recent broad reading of the Spending Clause and the Commerce Clause is logical in light of the increase in industrialization and technology, as well as an array of historical, political, and economic factors.(246) The initial design of government, however, conveyed through the Constitution, requires that every statute's validity be scrutinized within the federalist framework.

B. Does Congress Have the Power Under the Spending Clause to Create a Federalized Education Plan?

The Spending Clause has generated much controversy since its inception.(247) The core theory of the Spending Clause, however, remained consistent until the Supreme Court's decision in South Dakota v. Dole.(248) Under this expansive interpretation of the Spending Clause, Congress passed Goals 2000 education legislation.(249) To date, no party has challenged the constitutional validity of this legislation in Court. Despite the successful passage of Goals 2000 under the Spending Clause, this Section asserts that the passage of education legislation under the Spending Clause is unconstitutional. Additionally, this Section maintains that the Supreme Court should reverse its holding in South Dakota v. Dole(250) and return to the traditional interpretation of the Spending Clause espoused in Butler v. United States.(251)

1. Traditional Reading of the Spending Clause

The Spending Clause in Article I, Section 8, Clause 1 of the Constitution provides: "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."(252) This Clause spawned debate as far back as 1817 when President James Madison vetoed the Internal Improvement Bill.(253) He believed that the Spending Clause did not authorize Congress to spend money to build roads and canals.(254) Rather, Madison narrowly construed Congress' power to spend for the "General Welfare" as limited to expenditures under the enumerated powers in Article I, Section 8 of the Constitution.(255) The other interpretation of this Clause, advocated by Alexander Hamilton, construed the Spending Clause as an independent power, authorizing Congress to tax and make expenditures to promote the national welfare for matters beyond the scope of their other powers.(256) Ultimately, the Supreme Court rejected Madison's view in United States v. Butler and explicitly adopted the Hamiltonian theory.(257)

While Hamilton and Madison disagreed about the breadth of the Spending Clause,(258) they both accepted that the federalist government structure of the United States imposed significant limitations on the Spending Clause.(259) Even Hamilton, who led the advocacy for a broad interpretation of the Spending Clause, never purported that this Clause authorized Congress to usurp the federalist structure and enable Congress to regulate local state issues.(260) Regardless of the Spending Clause's controversy, all parties' interpreted the Spending Clause as consistent with the Framers' original intent to delegate few and defined enumerated powers to the federal government and to abide by the Tenth Amendment.(261)

In United States v. Butler, the seminal Spending Clause case, the Supreme Court held the Agricultural Adjustment Act of 1933 (AAA) unconstitutional.(262) The AAA mandated processors of agricultural goods to pay a tax.(263) Additionally, the AAA provided that this processing tax revenue compensated farmers who entered into agreements with the government to farm less of their land.(264) Through this scheme, Congress sought to stabilize market prices for farm goods by controlling their supply.(265) Although the Court affirmed Congress' broad power to tax and make expenditures for the general welfare,(266) the Butler Court distinguished this tax and spend scheme from constitutionally valid schemes: "There is an obvious difference between a statute stating the condition upon which moneys shall be expended and one effective only upon the assumption of a contractual obligation to submit to a regulation which otherwise could not be enforced."(267)

The Court concluded that the Spending Clause's scope may not exceed the limitations imposed by the federalist structure and the Tenth Amendment.(268) Thus, Congress may not attempt to regulate local governmental issues by indirectly "taxing and spending to purchase compliance."(269) Even though the AAA would now be acceptable under the Commerce Clause,(270) the Butler Court's holding that the AAA was an unconstitutional regulation and not spending should stand.(271)

Another seminal Spending Clause case, Steward Machine Co. v. Davis,(272) further illuminates the distinction between a valid taxing and spending scheme and an unconstitutional regulatory measure in the guise of the Spending Clause. In Steward, Congress passed a federal unemployment compensation program under the Social Security Act (SSA).(273) This scheme mandated that employers pay a tax whereby the revenues generated from the tax would be paid to the unemployed.(274) The SSA, however, also provided that employers would not have to pay the federal tax if their State enacted an unemployment compensation program that met federal guidelines.(275) The plaintiff, an individual taxpayer, protested claiming that the federal tax was unconstitutional.(276) While this case appears similar to Butler at first blush, Steward involves a genuine tax and appropriation scheme instead of a regulatory scheme in disguise.(277)

In Butler, Congress wanted to regulate the market on farm goods by coercing farmers into not using all their land.(278) Congress conditioned the farmer's receiving the federal monies upon their agreement to leave their land fallow.(279) If Congress had taxed only the processors and appropriated funds to farmers, then the scheme would appear consistent with the traditional meaning of the Spending Clause.(280) Congress' attachment of the condition that farmers reduce the acreage of the land they use to receive the federal monies demonstrated that Congress used the taxing and spending scheme to regulate the local farmer's activities.(281) This local regulation, which Congress clearly did not have the power to enact, differs from the legislation in Steward.(282)

In Steward, Congress used a tax and appropriation scheme to provide unemployment compensation.(283) Congress not only had the power to tax employers and appropriate funds to the unemployed, but also had the power to attach the condition that it would not double-tax employers who paid a similar tax in states with a similar unemployment compensation scheme.(284) In that case, the plaintiff only challenged the federal government's ability to tax him, failing to also challenge the condition upon which the exemption of the tax was based.(285) (Note that Congress' enactment of the employment compensation scheme did not attempt to regulate a group of individuals like the farmers in Butler or even the states themselves.(286) Congress merely sought to provide a uniform unemployment compensation scheme which states could choose to enact or leave in the hands of the federal government.)(287)

The Spending Clause provides Congress with the broad authority to spend federal funds for any purpose that Congress reasonably believes contributes to the general welfare of the nation.(288) This broad power also enables Congress to designate how funds should be spent and attach certain conditions to ensure that the federal monies are spent in the manner that Congress envisioned.(289) Congress, however, may not overstep the federalist structure of government and use its spending power to regulate local activities by attaching conditions that are independent from Congress' designation of federal money expenditures.(290) Even when Congress uses the taxing and spending power in form, the Court must examine whether Congress is truly allocating monies to contribute to the national welfare or attempting to require compliance with a regulatory scheme that is outside its powers to enact.(291)

2. Recent Supreme Court Jurisprudence: The South Dakota v. Dole Tragedy

South Dakota v. Dole marked the Supreme Court's departure from the traditional interpretation of the Spending Clause.(292) In this case, Congress enacted the National Minimum Drinking Age (NMDA) amendment to the National Surface Transportation Act.(293) The NMDA directed the Secretary of Transportation to withhold up to ten percent of a state's federal highway funds from States that failed to mandate twenty-one years old as the minimum drinking age in their state.(294)

South Dakota, which had a nineteen-year-old minimum drinking age,(295) challenged the NMDA's constitutionality based on the Twenty-first Amendment and the Spending Clause.(296) The Court held that the Twenty-First Amendment did not bar Congress from conditioning federal highway funds on states' agreement to enforce twenty-one as the minimum drinking age.(297) Therefore, the Court had only to decide the constitutionality of the NMDA under the Spending Clause.(298) It held the NMDA constitutional.(299) It reasoned that the Spending Clause provided Congress the authority to purchase compliance by tempting states with federal funds in exchange for the states accepting the conditions attached to monies.(300) Even though the Court assumed Congress did not have the power to directly regulate the minimum drinking age that states set,(301) the Court found this "tax and spend" scheme valid because it did not coerce, but rather tempted, South Dakota into compliance.(302)

Clearly, the South Dakota v. Dole holding redefines the Spending Clause in a manner that ignores both the federalist structure of government and case precedent.(303) The Constitution purposely delegates only certain enumerated powers to Congress in order that the states may maintain autonomy and legislative power concerning all non-enumerated matters.(304) In Butler, the Court unambiguously declared in the following words that the Spending Clause should not be interpreted as a loophole for Congress to regulate activities beyond its scope:

   [T]hough the makers of the Constitution, in erecting the federal
   government, intended sedulously to limit and define its powers, so as to
   reserve to the states and the people sovereign power, to be wielded by the
   states and their citizens and not to be invaded by the United States, they
   nevertheless by a single clause gave power to the Congress to tear down the
   barriers, to invade the states' jurisdiction, and to become a parliament of
   the whole people, subject to no restrictions save such as are self-imposed.
   The argument, when seen in its true character and in light of its
   inevitable results, must be rejected.(305)

The Butler Court concluded that there must be limitations on the Spending Clause or else Congress would be able to use the Clause to create regulations outside its power.(306) Implicitly, Butler places two limits on Congress' ability to use the Spending Clause.(307) First, Congress may not attach a condition to federal funds that requires states to enact regulations of individuals that Congress would not otherwise have the power to regulate.(308) Second, Congress may not attach conditions to federal funds that are independent of the states' spending of the funds.(309) South Dakota ignores this implicit common sense approach laid out in Butler.(310)

The South Dakota Court fails to analyze whether Congress offered states federal funds to promote a national objective, specifying how the state was to spend the federal funds, or whether Congress offered the funds to compel states to regulate individuals on a matter beyond Congress' power to regulate.(311) Rather, the Court reasons that the NDMA is constitutional because the scheme effectively motivates states to accept the minimum drinking age, but does not coerce states.(312) In fact, the Court rests its holding upon the amount of money that Congress offered the states.(313) Thus, under South Dakota, Congress may constitutionally condition federal funds upon state adoption of federal education policy, federal criminal law, federal zoning ordinances, and other matters traditionally falling within state government powers.(314) While Congress now has the power to purchase state compliance, Congress, ironically, must limit itself to only offering "small" financial inducements to the states to accept their regulations.(315)

3. Synthesis: Congress' Power to Further Goals 2000 and Create a National Curriculum Under the Guise of the Spending Clause

Congress passed Goals 2000 in 1994 under the Spending Clause.(316) While Goals 2000 does not mandate that states follow the same curriculum with the same rigidity as England's national curriculum,(317) Goals 2000 marks a bold step towards a uniform system.(318) Under Goals 2000 the federal government possesses the framework to shape the curriculum and policy effecting every student in every public school.(319) In fact, Goals 2000 allocates federal funds to a committee of nineteen members appointed by the President who work to establish national educational standards.(320) Additionally, Goals 2000 provides federal funds to states on the condition that they develop "state improvement plans" which meet the National Educational Goals.(321)

Furthermore, Goals 2000 allocates federal funds to nonprofit organizations that provide information and training to parents.(322) This current comprehensive statute has yet to be challenged and sections of it may pass the constitutional muster even under the traditional Butler interpretation of the Spending Clause.(323) If Congress, however, decided to take Goals 2000 a step further and conditioned educational funds upon implementation of a national curriculum by the states, then such a regulation would be beyond Congress' Spending Clause power.(324)

Clearly, the Spending Clause grants Congress the authority to spend money on education and to direct how the states should spend the federal funds.(325) For instance, Congress may dedicate large grants to states that agree to use the federal monies to hire more teachers and reduce class sizes. Similarly, Congress may spend money to develop educational curriculum and provide federal funds to states that agree to implement such curriculum. These examples demonstrate Congress exercising its spending power and placing conditions upon how the states are to spend the funds. In contrast, Goals 2000's comprehensive scheme and the possible future promulgation of a national curriculum under the Spending Clause present a more difficult question as to their constitutionality.

Justice O'Connor's dissenting opinion in South Dakota v. Dole provides the following standard for evaluating constitutionality of a law under the Spending Clause:

   The appropriate inquiry, then, is whether the spending requirement or
   prohibition is a condition on a grant or whether it is regulation. The
   difference turns on whether the requirement specifies the manner in which
   the money should be spent, so that Congress' intent in making the grant
   will be effectuated. Congress has no power under the Spending Clause to
   impose requirements on a grant that go beyond specifying how the money
   should be spent. A requirement that is not such a specification is not a
   condition, but a regulation, which is valid only if it falls within one of
   Congress' delegated regulatory powers.(326)

Under this inquiry Goals 2000's "parental information and resource centers" section(327) would appear constitutional as Congress merely directs the nonprofit organizations to spend the federal funds for resource centers(328) Goals 2000's "state improvement plans" section,(329) however, requires states that accept federal funds to develop and implement a state improvement plan that meets the National Education Goals.(330) The state improvement plans go beyond directing how the federal monies should be spent.(331) They require states to implement a comprehensive educational system.(332) To receive the federal funds, states must require state officials, including the governor, to participate in teaching students "core content areas," in adopting content standards and state student performance standards for all students, in assessing all students' performance regularly, and in meeting other numerous requirements.(333) Rather than directing how funds are to be spent, Congress appears to be granting federal funds "only upon the assumption of a contractual obligation to submit to a regulation which otherwise could not be enforced."(334) Such a grant violates the traditional interpretation of the Spending Clause, and therefore should be held unconstitutional.

Likewise, if Congress expands Goals 2000 and conditions federal funds upon implementation of a national curriculum, then states should challenge the validity of the statute and it should be found unconstitutional.(335) Currently, forty-seven states and the District of Columbia and Puerto Rico receive monies through Goals 2000.(336) As a result of the great increase in federal taxation in recent decades, states face great obstacles in raising local revenue from constituents who have less after-federal-tax income than in the past.(337) This lack of funds forces states to rely upon federal grants.(338) The necessity of state funding further diminishes the ability of states to choose to reject the valid conditions or unconstitutional regulations that Congress attaches to the funds.(339) Although the states have less of a real choice, the general public still holds the states accountable for the programs that it implements on a local level.(340) Congressional conditioning of federal grants, therefore, creates serious political accountability concerns because the electorate no longer knows what branch of government to hold responsible for law and policy decisions.(341)

In light of South Dakota v. Dole, a national curriculum appears within reach for Congress to pass.(342) After all, the majority opinion labeled the withholding of "a small percentage" of federal highway funds "mild encouragement,"(343) even though Texas was threatened with a loss of $100 million and Florida with a loss of $73 million.(344) Although speculation about the possibility of the Supreme Court reversing its holding in South Dakota v. Dole is just that--speculation--the possibility is real. Only three members of the majority opinion remain on the bench: Chief Justice Rehnquist and Justices Stevens and Scalia.(345) Furthermore, decisions and public statements from the other sitting Justices demonstrate that they appear to recognize the fallacy of Dole.(346) Hopefully, if Congress provided funds to states that implemented a national curriculum, the Court would recognize that such regulation is beyond the scope of Congress and, therefore, unconstitutional.

C. Does Congress Have the Power Under the Commerce Clause to Create a Federalized Education Plan?

Congress has yet to pass education legislation under the Commerce Clause. Congress may, however, attempt to do so because the Commerce Clause would provide Congress greater regulatory freedom than the Spending Clause. Under the Commerce Clause, Congress would be able to require states to comply with mandatory educational programs without having to provide federal funds and attaching a state's acceptance of the funds to specific conditions. Although Congress may choose to federalize education, this Section explains why the Supreme Court should hold such legislation unconstitutional.

1. Traditional Reading of the Commerce Clause

The Commerce Clause in Article I, Section 8 of the federal Constitution provides Congress with the power "to regulate Commerce with foreign Nations, and among the several States and with Indian Tribes."(347) Congress, therefore, has the authority to regulate foreign and interstate commerce. This grant of power arose as a direct response to state interference with trade and the inability of the states to agree upon trade issues.(348) While little discussion occurred about the actual meaning of the Commerce Clause at the Constitutional Convention,(349) the Framers wanted to encourage trade with foreign nations and intended to prevent conflicting or competing state legislation.(350) The Framers, however, intended to limit Congress' power to areas in which the self-interest of the states could hurt the development of a national economy.(351) Thus, the Framers' federalist design of the Constitution and distrust of a large federal government provide support for a narrow reading of the Commerce Clause.(352)

Furthermore, the Supreme Court's earliest decisions supported a narrow interpretation of the Commerce Clause by limiting Congress' power to regulate only a narrow scope of economic activities.(353) While Congress' power to regulate foreign commerce remained unchallenged, disputes between the states required the Supreme Court to define the scope of the Commerce Clause and its limits on state police power.(354) The Court held that the Commerce Clause prevented some states from benefiting to the disadvantage of others, thereby creating economic balkanization.(355) Congress did not pass laws under the Commerce Clause until after the Civil War.(356) Consequently, Commerce Clause jurisprudence, which developed during the United States' first one hundred years, only involved questions arising under the dormant Commerce Clause.(357) When the Supreme Court first faced controversies involving the affirmative Commerce Clause, the Court adopted a restrictive view and preserved extensive state control over business.(358)

Supreme Court jurisprudence began to change in the early 1900s.(359) Two judicial constructs emerged, defining Congress' affirmative power to regulate under the Commerce Clause.(360) The first interpretation involves any movement of goods or people across state lines, even if the movement fails to eliminate trade barriers between states or affect interstate business relations.(361) In fact, Congress' regulation of movement even included regulation of typically local concerns like sexual relations and availability of lottery tickets.(362) The second interpretation concerns any activity that has a substantial effect on interstate commerce.(363) The imprecise, broad nature of this construct proves inconsistent with the Framers' delegation of enumerated powers.(364) Yet, its evolution in the wake of what historians commonly refer to as the "1937 constitutional revolution"(365) is hardly surprising.

While the Court's "substantially related to interstate commerce" construct is linguistically problematic,(366) the Court's decisions leading up to and including Wickard v. Filburn(367) can be reconciled with the Commerce Clause's meaning within the Constitution's federalist framework.(368) It is very likely that Wickard illustrates the furthest possible stretch of the Commerce Clause within the federalist framework(369) In this case, Congress used the Commerce Clause to regulate the amount of excess wheat that a private farmer could grow on his farm.(370) The Supreme Court held that fining a dairy farmer for growing six extra bushels of wheat on his farm was constitutionally permissible since excess production of wheat "in the aggregate" would affect interstate commerce by changing the market price for wheat.(371) Although a local farmer growing six extra bushels of wheat to feed his livestock hardly seems to fit under type of regulation the Framers envisioned when delegating Congress the power to regulate "commerce,"(372) functional analysis provides a basis for the Court's decision.(373)

Functional analysis refers to the analytical process of determining the meaning of a constitutional provision.(374) This process involves examining the logical reasons behind the provision and determining whether states alone can handle the problem.(375) The question therefore becomes whether the states are capable of regulating the activity or whether Congress' help is necessary because of a need for uniform regulation.(376) Thus, functional analysis requires courts to seriously examine the federalist structure of government and the benefits of dual-sovereignty.(377) Admittedly, the public may support and Congress may be able to effectively handle a large range of areas that affect the economy.(378) Functional analysis, however, prevents the current majority from eradicating the intended balance of governmental powers.(379) Considering the dire economic conditions of the 1930s and the emergence of an integrated national economy.(380) Congress needed to regulate the wheat market(381) because the regulation of the independent states would likely have proven ineffective.(382) The need for uniformity and the economic nature of the activity justified Congress' intervention in a local farmer's business.(383)

Unfortunately, the Court in Wickard held the statute constitutional by employing the "anything taken in the aggregate that is substantially related to interstate commerce" standard.(384) The Court has yet to explicitly refine the Wickard standard or use a standard that linguistically conveys a functional analysis limitation.(385) In fact, the Supreme Court broadened the Wickard construct when it upheld Congress' authority to enact the Civil Rights Act of 1964.(386) United States v. Lopez(387) and United States v. New York(388) question this expansive standard from Katzenbach v. McClung.(389)

2. Recent Supreme Court Jurisprudence: Barbecue, Guns, and Waste

Congress' power under the Commerce Clause rose to an entirely new level in the landmark case of Katenbachk v. McClung, better known as Ollie's Barbecue (Ollie's BBQ).(390) In Ollie's BBQ, the Court reasoned that Congress had the power to regulate Ollie's Barbecue as long as Congress could reasonably conclude that the activity, taken in the aggregate, could affect commerce.(391) For thirty-one years, this standard enabled Congress to regulate even the most remote aspects of local activity.(392) The Court's interest in validating legislation,(393) aimed at eliminating discrimination, overruled federalist considerations of limiting the regulatory reach of Congress.(394) Unlike Heart of Atlanta,(395) the facts of Ollie's BBQ(396) and the Court's tenuous reasoning(397) enabled Congress to pass thousands of laws under the Supreme Court's broad interpretation of the Commerce Clause.(398)

Ollie's BBQ raised the question of whether the Commerce Clause granted Congress the power to regulate the customer service policy of a local, family-owned restaurant in Birmingham, Alabama.(399) Specifically, the local restaurant only served African-Americans through a take-out service, while allowing whites to sit and eat.(400) McClung, the owner of Ollie's BBQ, challenged congressional authority to regulate local establishments.(401) He claimed that his seating policy did not affect interstate commerce or trade.(402) The district court agreed and held the statute unconstitutional.(403) The Supreme Court reversed, however, in an 8-1 decision.(404)

The Supreme Court's reasoning began by stating logical premises(405) and narrowly framing the issue.(406) Yet, the Court somehow drifted away from analyzing Congress' Commerce Clause power(407) to a finding of great deference for congressional regulations.(408) The Court eventually found that Ollie's BBQ had a "close tie to interstate commerce" because it served "food that came from out of the state."(409) The Court skirted the issue of how the discriminatory seating policy actually impacts commerce.(410) Rather, it determined that the seating policy did not have to directly impact commerce since the restaurant received food that moved in commerce.(411) The Court found that the Congressional Record amply described ways that discriminatory regulations affected commerce. Such regulations deter minorities from traveling out-of-state due to lack of restaurants, reduce the flow of food from out-of-state since more food would be ordered if the minority population could frequent the restaurant as well, and prevent new businesses or persons from moving to the area.(412) While these congressional findings are important to determining whether Congress' power extended to regulating Ollie's seating policy,(413) the Court's decision did not confirm that Ollie's seating policy had deterred minorities from traveling, reduced the flow of food, or prevented new businesses from moving to the area.(414) The Court did not address whether the seating policy affected commerce because it simply relied on Congress' judgement in promulgating the regulation.(415)

The efforts of Congress to eliminate discrimination through the Civil Rights Act of 1964 and the Supreme Court's validation of congressional power to stop discrimination were admirable and long overdue.(416) The Thirteenth Amendment, however, would have served as the more proper venue to achieve the constitutional objective of eliminating discrimination in public places.(417) The use of the Commerce Clause by Congress ignores the federalist structure of the Constitution(418) and injures the protective mechanisms provided by this structure of government(419) Since Ollie's BBQ holding rested on the interpretation of the Constitution,(420) the Supreme Court's affirmation of congressional power to regulate non-economic activities is particularly disconcerting.(421) Additionally, the Court upheld Congress' power even though the facts of the case failed to indicate any effects on interstate commerce or the national economy.(422) As a result of Ollie's BBQ, the Supreme Court's interpretation of the Commerce Clause to include any activity either "in" or "affecting" interstate commerce caused congressional power to remain virtually unrestrained until United States v. Lopez.(423)

United States v. Lopez has emerged as the leading and most controversial Commerce Clause case.(424) The importance of the 5-4 Lopez decision cannot be overstated.(425) The Lopez Court was charged with determining whether the Commerce Clause limits the ability of Congress to regulate all domestic issues without spending federal funds.(426) Lopez addressed the constitutionality of the federal Gun-Free Zone Act of 1990,(427) which prohibited all persons from knowingly carrying a gun within a school zone.(428) The Court held the statute invalid.(429) The Supreme Court found that possession of a gun within 1,000 feet of a school did not bear a substantial effect on interstate commerce in order for Congress to have the authority to regulate such activity.(430) Additionally, the Court found the statute to be a mere regulation of criminal activity, which is traditionally left to the state's domain.(431)

The Court first described the Commerce Clause's scope as an enumerated power(432) and summarized the standards from the previous Supreme Court jurisprudence.(433) It narrowly focused the issue to determine only whether possession of a firearm substantially affects interstate commerce.(434) The Court found that possession of a gun is distinguishable from other activities that Congress has the power to regulate.(435) It addressed and rejected the Government's three main arguments supporting the regulations' effect on interstate commerce: (1) costs of crime,(436) (2) national productivity,(437) and (3) economic productivity.(438) Finally, it reasoned that, based on the federalist structure of the Constitution,(439) it must limit Congress' commerce power,(440) leaving some activities to state control.(441) For example, the Court found that Congress does not hold the power to "mandate a federal curriculum for local elementary and secondary schools."(442)

The Court's findings indicate a return to the traditionally accepted view that Congress's enumerated federal powers require a narrow reading of the Commerce Clause.(443) As a result, the Congress can no longer assert that the regulation impacts interstate commerce; rather the Court will insist that the Government prove that the regulated activity bears a substantial effect on interstate commerce concerns.(444) In his concurring opinion,(445) Justice Kennedy also reasoned that the Court never permitted Congress to exercise an unlimited police power.(446) Even more fervently,(447) Justice Thomas's concurring opinion rejects congressional power extending to criminal statutes.(448) Justice Thomas urges a return to the original meaning of the Commerce Clause(449) and recommends that the Court adopt a new test that reflects this.(450) While Lopez demonstrates a limit on Congress' commerce power,(451) the Court did not explicitly overrule earlier Commerce Clause precedent.(452) Thus, the extent of Congress' power still remains unclear.(453) Cases like Lopez and New York v. United States, however, demonstrate that Congress can overstep its bounds under the Commerce Clause(454) and that the Supreme Court remains concerned about state sovereignty within the federalism balance.(455)

Prior to Lopez, the Supreme Court affirmed another congressional commerce power limit in New York v. United States.(456) The limit involves statutes that infringe on state autonomy.(457) In New York, Congress provided three incentives to encourage the states to dispose of the radioactive waste that was generated within the state's borders.(458) The Court invalidated the "take title" incentive,(459) because it mandated state action rather than simply encouraging states to follow a particular policy.(460) The Court reasoned that the relationship between the federal government and the states constrains Congress only to encourage state action with regard to local activities.(461) Congress, of course, has the power to regulate individual generators and disposers of radioactive waste;(462) however, the states cannot be held responsible if these individuals fail to follow federal regulations.(463)

Based on the Lopez and New York decisions, there are two principles that limit Congress' ability to regulate education. First, Lopez appears to implicitly overrule Ollie's BBQ,(464) or at a minimum, retreat from its broad holding.(465) After all, Lopez appears to limit Congress' power only to economic activities(466) and it suggests that Wickard's "substantially related to interstate commerce" standard serves as the furthest extent of Congress' power.(467) Second, New York requires that Congress only regulate commerce between the states.(468) These limits indicate that the passage of a mandatory curriculum in public schools would meet a strong challenge to the statute's constitutionality under the Commerce Clause.(469)

3. Synthesis: Congress' Power to Create a National Curriculum Based on the Commerce Clause

Congress may attempt to pass legislation that regulates local schools under the Commerce Clause.(470) If Congress passed a national curriculum modeled after the English system,(471) every teacher in every school in the United States would use the same set of standards and have the same academic objectives.(472) The academic standards would not, necessarily, require the teaching of the same books everywhere, but the same academic goals concerning certain core subjects would be implemented across the nation.(473) If this scheme is adopted, its constitutionality must be examined in light of Ollie's BBQ, Lopez, and New York.(474) The ambiguities of Commerce Clause jurisprudence complicate the task of predicting how the Supreme Court would interpret the Commerce Clause power regarding mandatory curriculum.(475) A close examination of the Constitution's powers, however, combined with the early history of the Commerce Clause provides substantial support for how the Court should decide such a case.(476)

Predicting the Supreme Court's holding in a challenge to a congressional regulation of local schools requires a synthesis of Lopez, Ollie's BBQ, and New York.(477) New York's holding, however, does not apply directly to Congress' regulation of education,(478) because New York addresses Congress' attempt to regulate the state's power to pass laws and regulate individuals. In this case, regulation by Congress of local schools would involve the regulation of a state distributing a beneficiary service to the public.(479) As a result, New York places no explicit limitation on Congress' ability to regulate local schools since the state's regulatory power is not at issue.(480) Yet, New York cannot be ignored because it addresses the relationship between the state and federal government and demonstrates the Court's concerns about maintaining a proper federalist balance and the Court's renewed interest in resurrecting the Tenth Amendment.(481)

Under Ollie's BBQ, Congress would seem to have the power to enact a mandatory curriculum under the Commerce Clause.(482) The dissent and majority opinions in Lopez, however, directly address this issue and disagree.(483) Adhering to precedent, Lopez's majority opinion is controlling.(484) While the Lopez Court states three standards under which Congress' commerce power allows regulation of activities,(485) regulation of education by Congress would only involve the "substantially related to interstate commerce" test.(486) As a result of the Court's reasoning in holding the firearm statute invalid,(487) the Court would likely find a mandatory curriculum statute similar to the firearm statute.(488) The Court, therefore, would likely find that regulation of curriculum by Congress also has only a tangential relationship to interstate commerce.(489) The Government, however, would then be likely to submit evidence supporting a direct relationship between education quality and interstate commerce.(490)

Even with such evidence in the record, the Court is likely to hold the statute invalid for two reasons. First, the federalist concerns explicitly expressed in the majority and concurrent opinions would likely require the statute to be found invalid.(491) Secondly, the relationship between regulating education and commerce, like the criminal statute, requires the Court to make too many assumptions about complex cause and effect relationships between curriculum and interstate commerce,(492) especially since education is not an economic activity.(493) Leaving education to the states and local government prevents the federal government from overtaking all of the states' functions.(494) After all, education is one of the states' most important areas of regulation.(495)

V. CONCLUSION

Undeniably, America needs to restructure schools to provide all students with a better quality of education. Congress's efforts to improve the nation's educational system through Goals 2000 and the United States' historical and philosophical ties with England indicate that Congress will likely expand the current federal education legislation. England's concerns over greater equality in education and its desire for greater accountability are common themes that resonate as criticisms in the U.S. educational system. Thus, England's implementation of national curriculum and standardized assessments will likely serve as the model that Congress will follow when making new federal education laws.

From a policy perspective, implementing a national curriculum similar to England's would help promote a common ethos and help unify the educational experiences of students throughout the United States. Additionally, greater accountability in schools would be possible because standardized national tests could be used to measure the effectiveness of teachers and schools in helping students master the same curriculum. Perhaps the national curriculum and national testing would promote a market in which competition would force schools and teachers to improve. Unlike England, however, Congress must not only weigh policy concerns but also honor the ideology and federalist structure of the United States government.

The Framers, through the Constitution, provided only limited, enumerated powers to the federal government, while the states maintained the majority of their police powers. As a result of regional diversity in the United States, state governments have the power to regulate matters concerning health, welfare, safety, and morals, such as education. The states must continue to maintain control over education in order to allow for experimentation, political accountability of leaders, citizenship involvement, and custom-made laws that reflect the states' individual values and priorities. Although Congress has and will continue to stretch its Constitutional powers, the Spending and Commerce Clause were not intended to give Congress power to regulate traditional, local, and police power matters like education.

In summary, the Constitution and the federalist structure of the U.S. government should prevent Congress from following England's national curriculum and enacting further federal education legislation. America's educational problems are not the result of state government's control over education. The quality of American education will continue to decline until Americans make education a priority by increasing teacher salaries and creating smaller-size classrooms. Most importantly, they must realize the value of learning for the sake of learning.

(1.) In the past fifty years, a national consensus has developed over the declining state of education. The historic launching of the Soviet satellite, Sputnik, in October of 1957 marked the beginning of Americans' fear that the U.S. educational system lagged behind other industrial nations. Michael Heise, Goals 2000: Educate America Act: The Federalization and Legalization of Educational Policy, 63 FORDHAM L. REV. 345, 353 n.48. (1994) [hereinafter Goals 2000]. Additionally, education's decline was blamed on the failure of the system to teach morals or provide any form of character training. See generally JAMES DAVISON HUNTER, CULTURE WARS: THE STRUGGLE TO DEFINE AMERICA (1991) (suggesting that education, a primary vehicle for transmitting cultural views, is part of the battle for the minds of young people, and positing that education has shifted from teaching students to be morally, upright citizens to focusing on obtaining material success). As an example, critics argue that European students read and study classics like Homer at an early age, whereas American students frequently do not read them until college. See ALLAN BLOOM, THE CLOSING OF THE AMERICAN MIND, 62-67 (1987) (suggesting that modern universities have lost touch with their traditional purposes and become mere trade schools in which bureaucracy encourages mediocrity). Finally, much criticism developed from the Supreme Court's involvement in altering education. Specifically, decisions during the 1960s prohibiting prayer and Bible readings in schools generated significant controversy and have spurred numerous proposals to amend the Constitution. See, e.g., Abington v. Schempp, 374 U.S. 203 (1963) (prohibiting Bible reading and recitation of the Lord's Prayer in public schools); Engel v. Vitale, 370 U.S. 421 (1962) (holding that prayer recitation violates the First Amendment Establishment Clause). Debate continues over recent decisions, raising questions about what should be taught and encouraged in schools, and who should decide. See, e.g., Mozert v. Hawkins Cty. Bd. of Educ., 827 F.2d 1058 (6th Cir. 1987) (holding that the basic reader series chosen by school authorities was Constitutional and did not violate students' exercise of their religion).

(2.) See Benjamin R. Barber, America Skips School: Why We Talk So Much about Education and Do So Little, HARPER'S MAGAZINE, Nov. 1993, at 39, 41 (delineating Americans' apathy towards education through statistical and cultural evidence).

(3.) See, e.g., NATIONAL COMMISSION ON EXCELLENCE IN EDUCATION, U.S. DEP'T OF EDUC., A NATION AT RISK: THE IMPERATIVE FOR EDUCATIONAL REFORM (1983) [hereinafter NATION AT RISK] (chronicling the problems of education and calling the nation to stop the "eroding ... tide of mediocrity that threatens our very future as a Nation and a people."). This report documents how the Commission found that nearly forty percent of seventeen-year-olds could not draw inferences from written materials. See id. at 4. Numerous scholars also report the decline of education. See generally, e.g., CHESTER E. FINN, JR., WE MUST TAKE CHARGE: OUR SCHOOLS AND OUR FUTURE 235-37 (1991) (arguing in favor of restructuring of educational services since past reform efforts have failed); JONATHAN KOZOL, ILLITERATE AMERICA (1985) (documenting illiteracy in America and its social and economic effects); THE EDUCATIONAL REFORM MOVEMENT OF THE 1980S: A COMPREHENSIVE ANALYSIS IN THE EDUCATIONAL REFORM MOVEMENT OF THE 1980S, PERSPECTIVES AND CASES (Joseph Murphy, ed., 1990) (discussing public schools' shortcomings in educating youth and the 1980s attempts to restructure education).

(4.) Leading educational indicators demonstrate a decline. See Michael Heise, School Choice: Journal of Law & Politics Symposium on Equal Education under the Law, 14 J. L. & Pol. 411, 419 [hereinafter School Choice]. In particular, "the average verbal and math SAT scores declined over fifty and almost forty points, respectively, between 1963 and 1980." Id. (citing NATION AT RISK, supra note 3, at 8-9).

(5.) School violence has become an American epidemic. See Joanna Firestone, Parents Must Stay in Tune With Their Kids, DETROIT NEWS, Mar. 1, 2000, at A1, A6. Between October 1997 and December 1999 nine separate incidents of school shootings occurred across the nation in which students were injured or killed. See id. Among these was the Columbine high school shooting which took the lives of fourteen students, including the two perpetrators and one teacher. See id. Twenty-three other students were wounded. See id.

(6.) The definition and manner of measuring "actual learning" is a subject of much controversy. Universities commonly utilize standardized tests as a measure of "actual learning," but experts often question whether such tests are a valid means of determining academic ability and knowledge. See, e.g., DAVID W. GRISSMER ET AL., STUDENT ACHIEVEMENT AND THE CHANGING AMERICAN FAMILY 20-23 (1994); Charles Murray & R. J. Herrnstein, What's Really Behind the SAT-Score Decline?, 106 PUB. INT. 32, 32-36 (1992).

(7.) According to one scholar, problems with American education originate from Americans' propensity to continually complain about issues without truly debating or devising real solutions. Cf., JEAN BETHKE ELSHTAIN, DEMOCRACY ON TRIAL 12 (1995) (calling Americans to enter into a new social covenant). Americans have become so isolated within their busy personal lives and come from such overwhelmingly different backgrounds, beliefs, values, and lifestyles that conversation is necessary for democracy to survive. See id. at 15-22.

(8.) See Barber, supra note 2, at 40 (describing how Americans do not really care about education). Benjamin Barber colorfully illustrates how critics blame students, teachers, and schools; yet these individuals merely reflect the lack of importance American society places on education and learning. Id. Cleverly, the "Real-World Cultural Literacy" test demonstrates that Americans propagate the message through the media and that learning and gaining understanding is really not important. Id. Rather, the test illustrates that achieving economic success, fame, and appearance are of greater value than knowing about famous events and people, reading good literature, or understanding principles of science or math. Id. at 41-42.

(9.) Id. at 39 (citing to the Department of Education Statistics, Sept. 8, 1993).

(10.) Id.

(11.) See Barber, supra note 2, at 39.

(12.) Id.

(13.) Id. More than 3,000 students drop out every day and about 600,000 no longer attend school over the course of a normal school year. Id.

(14.) Dropping out of school influences students' lifestyles and limits their opportunities. Id. Many students who drop out end up in prison. Id. Statistics indicate that one out of four African-American males "will pass through the correctional system, and at least two out of three of those will be dropouts." Id.

(15.) No one denies that discrimination has continued since the Civil War. See RICHARD KLUGER, SIMPLE JUSTICE 55-73 (1975) (tracing the tragic history of Supreme Court decisions enabling racism from Dred Scott to Plessy v. Ferguson). One of the most tragic areas of discrimination against African-Americans following the Civil War was in the area of education. See generally JAMES D. ANDERSON, THE EDUCATION OF BLACKS IN THE SOUTH, 1860-1935 (1988). As damning as any of the Jim Crow laws was the federal government's affirmation of segregation. Id. at 72-74. Plessy v. Ferguson marked an era of increased segregation and active disadvantaging of African-Americans by states providing inferior educational opportunities. See id. Despite Brown v. Board of Education's implicit reversal of Plessy, racial discrimination continues, and much debate rages over the best way to eliminate the disparity. See Shelby Steele, The New Sovereignty: Grievance Groups Have Become Nations unto Themselves, 285 HARPER'S MAGAZINE, July 1992, at 47-49 (challenging the notion of collective entitlements for blacks and women, and positing a return to the goals of "democracy, integration, and developmental uplift"); ARTHUR M. SCHLESINGER, JR., THE DISUNITING OF AMERICA: REFLECTIONS ON A MULTICULTURAL SOCIETY 79-104 (3d ed. 1998) (arguing the importance of a school curriculum in which American schools promote common values, language, and ideas, and criticizing ethnocentric curriculums); Cameron McCarthy, Multicultural Education, Minority Identities, Textbooks, and the Challenge of Curriculum Reform, 172 J. EDUC. 118, 128 (1990) (arguing that school curriculum must depart from its current Eurocentric views and textbooks must be restructured to provide students "a genuinely emancipatory multicultural experience in schooling"); James Traub, Can Separate Be Equal? New Answers to an Old Question about Race and Schools, HARPER'S MAGAZINE, June 1994, at 36-47 (discussing the financial disparity between suburban, white schools and the inner-city, minority populated schools).

(16.) Educators have numerous challenges in addition to teaching information. See KIMBERLY KEARNEY, TEACHER EMPOWERMENT OF AT-RISK STUDENTS 23-25 (English Language Arts and the At. Risk Student NYSEC Monographs) (1993) (recommending that educators treat "all students as individuals who are or are possibly at-risk"). Adolescents face personal issues such as developing autonomy and personal identity, looking for acceptance by peers, addressing issues of emerging sexuality, etc. See id. These issues combined with a number of complex social, economic, and moral issues further complicate students' lives and influence educators to treat all students as "at-risk." Id. The many efforts to reform education demonstrate that the answers to improving education are not easy. See FINN, supra note 3, at 235-37 (suggesting that previous reform efforts have amounted to mere "Band-Aids"); see also Barber, supra note 2, at 40 (noting that the poorer school districts seem "almost beyond help: children with venereal diseases or AIDS (2.5 million adolescents annually contract a sexually transmitted disease), gangs in the schoolyard, drugs in the classroom, children doing babies instead of homework, playground firefights featuring Uzis and Glocks.")

(17.) Theoretically, concern for "education" and for "all students" exists. Yet, state legislatures' procedures for funding public schools and their attempts to prevent inequality of educational opportunity tell a different story. See Traub, supra note 15, at 47 (quoting a teacher, "surveying the farcical deliberations of Connecticut's voluntary process, says sadly, `There's not enough good will to go around."'). An enormous gap exists between the academic achievement of minority and non-minority students. See JOHN E. CHUBB & TERRY M. MOE, POLITICS, MARKETS, AND AMERICAN SCHOOLS 4 (1990) (noting that the twentieth century emergence of the public school system hurt ethnic minorities).

(18.) See Traub, supra note 15, at 47. Local communities attempt to reform education in Dade County, Florida and Chicago, Illinois. See Goals 2000, supra note 1, at 369 n.192.

(19.) Barber, supra note 2, at 39.

(20.) The increase in expenditures on a federal, state, and local level have not ameliorated the educational crisis. Goals 2000, supra note 1, at 350. "The United States spent more than $200 billion on public elementary and secondary schools education during the 1990 school year." Id. United States spending accounted for 3.8 percent of the 1991 United States Gross Domestic Product; whereas Japan spent 2.8 percent. Id. American students' poor performance is particularly interesting, because the United States spends more per-pupil than most other nations. Id. at 351. United States per-pupil expenditure for elementary and secondary students is $5,780, compared to $1,768 in Belgium, $1,982 in Ireland, $2,405 in Spain, $3,559 in the United Kingdom, and $3,785 in France. Id. Data on educational expenditures and student achievement in the United States indicate that funds could be spent more effectively. Id.

(21.) Barber, supra note 2, at 39-40 (noting that teacher salaries are higher in Berlin, Tokyo, Ottawa, and Amsterdam than in New York or Chicago).

(22.) Id. at 41. American children only attend 180 days of school per year; whereas many children in Europe and Japan attend upward of 240 days out of the year. Id. at 40.

(23.) See Goals 2000, supra note 1, at 349 n.24 (citing from Lewis D. Solomon, The Role of For. Profit Corporations in Revitalizing Public Education: A Legal and Policy Analysis, 24 U. TOL. L. REV. 883, 886-87 (1993), that the average school year is 180 days in the United States, 220 days in the United Kingdom, and 243 days in Japan).

(24.) See Barber, supra note 2, at 41.

(25.) Id. at 42 (commenting on how children's illiteracy mirrors society's since America implicitly teaches that "there is nothing in Homer or Virginia Woolf, in Shakespeare or Toni Morrison, that will advantage them in climbing to the top of the American heap"). Americans seem to agree that "schooling in and of itself is for losers--Bookworms and Nerds." Id. This Note's previous discussion of education's decline leads to the natural conclusion that the vast majority of students and parents alike really do not recognize or genuinely value the pursuit of knowledge. See supra notes 1-6. It is the author's opinion that if parents and students found learning to be valuable, they would work to find ways for students to learn, regardless of the school's resources and environment. Public libraries would be full rather than movie theatres. School and work conversations would include meaningful discussions about health care reform, immigration policies, social improvements, politics, and quality writers. Instead, conversations about last night's sitcom and the most recent scandal monopolize the public forum.

(26.) See generally Barber, supra note 2, at 41 (arguing that the overwhelming numbers of Americans only view education as an ends to career goals and further education). Education was once viewed as more than "merely acquiring information" or "improving one's mind." ELSHTAIN, supra note 7, at 86. Rather, education involved an invitation to explore one's world and self and to discover one's role in society and the democratic process. Id. at 87.

(27.) Id. at 42-43. See also John I. Goodlad, Making Democracy Safe for Education, EDUCATION WEEK, July 9, 1997, at 56, 40 (positing that the purpose of schooling in a social and political democracy is to nurture students' "dispositions for personal efficacy" as well as their abilities "to attend to the well being of others"). Americans should not look to education as a solution to problems, because "schools mirror society; they do not drive it." Id. at 56. Education should help students learn more about themselves and how to transcend themselves, and relate with the rest of humanity rather than focus on schools as merely providing jobs and solving problems of crime, injustice, or poverty. Id.

(28.) See generally ELSHTAIN, supra note 7, at 13 (discussing society's emphasis on material possessions, which relegates everything else to secondary importance). Americans should not be surprised at reports of inner city youth robbing, beating, and killing in order to steal expensive sneakers or gold chains, nor that suburban youth frequently shun school and studies or participation in volunteer organizations in order to take part time jobs to buy extra clothes and consumer goods. Id.

(29.) See, e.g., David Tyack, Ways of Seeing, 46 HARV. EDUC. REV. 14 (1976) (discussing five different explanatory models that explain the development of compulsory schooling in the United States and illustrating how one's view of education's purpose influences what changes one supports); Barber, supra note 2, at 43 (advocating a shift in Americans' priority in education and a change in classrooms from "merely a trade school" to teaching democracy and civility). Methods to improve schools typically include "well-educated and well-paid teachers, small classes, good materials, encouragement at home and school, summer academic programs, protection from drugs and crime ..., and higher expectations of satisfying careers after graduation." Diane Ravitch, Multiculturalism: E Pluribus Plures, 59 THE AM. SCHOLAR, Nov. 3, 1990 at 337, 349 (arguing in favor of pluralism rather than particularism (the theory that students from different religious and racial backgrounds must be isolated in order to preserve appreciation of heritage and differences) in the school curriculum). Additionally, states are exploring new solutions, such as vouchers and privatization, to reforming educational systems; however, First Amendment issues preventing religious schools from receiving government funds and controversy over which students should have access to funds make such potential solutions complex. See Heise, supra note 4, at 414-15.

(30.) This general consensus for a change in education appears to have arisen in response to the 1983 Nation at Risk report, which alerted Americans to potential economic crisis if education did not improve. See Nation at Risk, supra note 3.

(31.) 347 U.S. 483 (1954) (ending the tradition of legal segregation of schools).

(32.) Id. at 493.

(33.) See A. V. KELLY, NATIONAL CURRICULUM: A CRITICAL REVIEW 23 (1990) (identifying the difference between "what education may be seen to be for and what it is"). The distinction between the definition and purpose of education is important because it clearly defines the policy goals of education. See CHARLES B. MYERS & LYNN K. MYERS, AN INTRODUCTION TO TEACHING AND SCHOOLS 288-93 (1990) (discussing the importance of the nature and value of educational philosophy and how clarification, justification, interpretation, and systematization are necessary processes for teachers to educate conscientiously). For instance, trends in education in the United States have shifted from teaching students the "basics" to developing the "whole child." Id. Depending on cultural trends, however, the definitions of these terms and how teachers should go about achieving these ends will vary from teacher to teacher unless a shared understanding of what education is develops. Id.; see also generally DAVID TYACK & LARRY CUBAN, TINKERING TOWARD UTOPIA: A CENTURY OF PUBLIC SCHOOL REFORM (1995) (describing the educational trends of the twentieth century and how the 1890s, 1950s, and 1980s signified conservative times in education where schools returned to teaching the basics because of competition with the Germans, the Soviets, and the Japanese, respectively).

(34.) Experimentation with different educational programs benefits the country by helping different regions learn which programs are most advantageous. As Justice Brandeis noted in his dissent in New State Ice Co. v. Liebmann, 285 U.S. 262 (1932), "it is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." Id. at 311 (Brandeis, J., dissenting). The variety of programs, however, also raises the problem of continually shifting educational policies, providing no stability for students. These shifts occur because local communities often lack a unified consensus or vision of what they expect their educational system to deliver. See Benjamin Levin & Jonathan Young, The Origins of Education Reform: A Comparative Perspective, Paper Presented at the Annual Meeting of the Canadian Society for the Study of Education (June 6, 1997), ERIC, ED 424 641, EA 029 407 [hereinafter Education Reform] (chronicling the unending series of educational reform proposals). North Carolina has implemented four very different programs between 1984 and 1995. Id. at 30. Even more dramatically, South Carolina changed educational programs three times between 1984 and 1991. Id.

(35.) See generally Goals 2000, supra note 1.

(36.) See William B. Senhauser, Education and the Court: The Supreme Court's Education Ideology, 40 VAND. L. REV. 939, 940-43 (May 1987) (describing how the definition of education's functions and goals is a pressing societal problem).

(37.) Id. Contributing to the decline of the American family is the doubled divorce rate between 1965 and 1979. Id. at n.2 (citing Price-Bonham & Balswick, The Noninstitutions: Divorce, Desertion, and Remarriage, 42 J. MARRIAGE & FAMILY 959 (1980)).

(38.) Id. at n.3 (citing from Purpel & Ryan, Moral Education: Where Sages Fear to Tread, 56 PHI DELTA KAPPA 659, 660 (1975) that "roughly 40 percent of Americans have virtually no contact with congregations or worship entities").

(39.) Id.; see also ELSHTAIN, supra note 7, at 30-36 (discussing the need for a new social covenant in order to break the cycle of mistrust and cynicism and calling Americans to recognize their civic identity).

(40.) Throughout this Note, "England" is used for the purpose of simplicity. Although England is a part of the United Kingdom of Great Britain and Northern Ireland, Parliament's adoption of the national curriculum has only affected England and Wales. It is the topic for another Note to delineate the relationship of the different regions (primary Scotland, Northern Ireland, and England) of the United Kingdom and their control over their region's educational policy. Thus, this Note will only address the island area of England and Wales.

(41.) Since the United States originated as English colonial territory, Americans' religious beliefs, philosophies, holiday celebrations, and values often resemble those of England. Austin Swanson, Educational Reform in England: The Significance of Contextual Differences, 4 INT'L J. OF EDUC. REFORM 4, 4 (1995) (stating that the United States has great interest in English reforms because of the similar cultural heritage and common language).

(42.) Id. The importance of sharing a language cannot be emphasized enough. See generally N'GUGI WA THIONG'O, DECOLONISING THE MIND (1989) (addressing how one's language cannot be separated from one's culture since it shapes one's thoughts as much as it mediates them). The United States' diversity is much greater than England's due to the comparative size of the countries. Thus, while English remains the primary language, depending on where one lives, a wider assortment of other languages will be found.

(43.) After the American Revolution, most of the states adopted English common law into their state constitutions. See JAMES W. ELY, JR., THE GUARDIAN OF EVERY OTHER RIGHT 32 (1998). Thus, the law of England was the basis for much of American jurisprudence. Id. Ironically, the ideas of many of the main legal theorists, such as William Blackstone, influenced America to break with England. Id.

(44.) During the eighteenth and nineteenth centuries, many of the educational thinkers that helped shape the current system of education in England and the United States emerged. See MYERS & MYERS, supra note 33, at 254-58. Prior to the Enlightenment Era, also known as the Age of the Reason, European education was limited to the elite and wealthy. Id. at 253. As thinkers, Jean-Jacques Rousseau and John Locke, however, wrote about the importance of education and challenged traditional notions of education. Id. at 255-57. Also, "a number of European educational thinkers who lived between 1500 and 1900 developed ideas about schooling that have direct influences on schools today." Id. at 257-59. These thinkers include: Johann Amos Comeius who contributed to the notion of developmental stages, Johann Heinrich Pestalozzi who supported an interactive learning environment, Johann Herbart who believed education should include moral development and interrelating of subjects; Friedrich Froebel who developed the idea of kindergarten, and Maria Montessori who viewed teachers as guides and recommended self-motivated learning. Id. at 257-59.

(45.) Id. at 294-315 (discussing the different educational philosophies and movements that have historically evolved and developed including idealism, realism, pragmatism, existentialism, reconstructionism, futurism, behaviorism, perennialism, evangelicalism, Marxism, and essentialism).

(46.) David L. Silvernail, The Impact of England's National Curriculum and Assessment System on Classroom Practice: Potential Lessons for American Reformers, 10 EDUC. POL'Y at 46-62 (1996) (examining education in the United States and England and comparing the similar movements in both countries).

(47.) See generally Levin & Young, Education Reform, supra note 34.

(48.) See MYERS & MYERS, supra note 33, at 268 (noting that the movement toward free public schools for all children was the most significant trend in the United States during the nineteenth and twentieth centuries).

(49.) See DUNCAN GRAHAM, A LESSON FOR US ALL: THE MAKING OF THE NATIONAL CURRICULUM 118 (1993) (praising the national curriculum for creating a level playing field for all children regardless of socio-economic class).

(50.) See MYERS & MYERS, supra note 33, at 268 (discussing the evolution of schools in the United States). See generally Pace Jefferson McConkie, Symposium, The Dilemma of American Federalism: Power to the People, the States, or the Federal Government?: Civil Rights and Federalism Fights: Is there a "More Perfect Union" for the Heirs to the Promise of Brown?, 1996 BYU L. REV. 389, 389-394 (1996) (discussing how state power supported efforts to preserve slavery and how the current debate to shift power to the states in areas such as education has racial implications).

(51.) See Goals 2000, supra note 1, at 365 (commenting on the role of federal courts in promoting equal educational opportunities regardless of race).

(52.) Id. at 364-65. Special Education laws, such as the Education of the Handicapped Act of 1975, have also provided a great increase in the amount of federal legislation. See, e.g., Pub. L. No. 94-142, 89 Stat. 773 (1975).

(53.) See H.G. BARNARD, A HISTORY OF ENGLISH EDUCATION: FROM 1760 2 (1961). The exact emergence of education in England is difficult to pinpoint. Factors such as the Protestant Reformation, the rise of the middle class, and the development of modern nation-states in Europe led to a reorientation of schooling in the sixteenth and seventeenth centuries. See MYERS & MYERS, supra note 33, at 253. After the Protestant Reformation, churches viewed schools as a necessity in order to teach individuals how to read so that they could read the Bible. Id. at 253-54. See generally CURTIS & BOULTWOOD, AN INTRODUCTORY HISTORY OF ENGLISH EDUCATION SINCE 1800 Ch. 1 (1960) (tracing English educational development through charity schools, schools of industry, Sunday schools, monitorial schools, private schools, ragged schools, grammar schools, public schools, etc.).

(54.) Id. at 1. Schools were unevenly distributed throughout England and children living in southeastern England had a better chance of attending school than people who lived in the North or West, where the areas were more rural. Id. Additionally, in areas where schools were plentiful, many poor families could not afford to send their children to school because children at the ages of six or seven had to work in factories or mines to supplement family incomes. Id.

(55.) England's class structure did not allow for individuals to change classes. DENIS LAWTON, CLASS, CULTURE AND CURRICULUM 1 (1975) [hereinafter CLASS]. Historical ownership of land often defined who were the wealthy in England and how much land one's family had. See ELY, supra note 43, at 10. This rigid class structure did not exist in the United States since there was so much land that could be acquired for very cheap prices. See id. at 11. In fact, most colonies developed "headright systems" in which approximately fifty acres of land (one colony especially eager to encourage immigration gave away one hundred and fifty acres) was given to all settlers. See id.

(56.) LAWTON, CLASS, supra note 55, at 1 (acknowledging how England's upper class required a distinct education that was restricted to persons with money who would become the managers in industry and the district officers of the colonies). The "grammar-public school" tradition was distinct from the "elementary school" tradition. See id. Both traditions initially involved church and private individual sponsors. See BARNARD, supra note 53, at Chs. 1, 2. Great variance occurred within both traditions in terms of cost. See LAWTON, CLASS, supra note 55, at 2. School funding, however, arose predominantly from the private sector. See id. The class division in England, automatically, defined which students would attend which type of school. See id. A conscious effort was made by the upper class to keep the lower class in their place. See id. Interestingly, however, Rugby, a school to which a grocer left an endowment, developed with the intent of operating as a `glorified' grammar school with no fees. See BARNARD, supra note 53, at 13. This division in class structure has continued into the twentieth century with many heralded English writers and thinkers supporting a division in classes. See, e.g., T.S. ELIOT, NOTES TOWARDS THE DEFINITION OF CULTURE 103-04 (1948) (favoring a small, governing, leisured ruling class).

(57.) The public-grammar school's curriculum was based on Greek and Latin classical foundations. See LAWTON, CLASS, supra note 55, at 1.

(58.) Id.

(59.) Id. at 1-2.

(60.) Id. at 2 (quoting an early elementary school advocate's statements reassuring the middle class that poor children would not be taught to "elevate their minds above the rank that they are destined to fill in society"). Many scholars endorse the view that only certain students should receive a specialized, high level of education. See KELLY, supra note 33, at 30. Some scholars support Plato's idea that "education is really an initiation into `the best that has been thought and said,' and this is interpreted as once it was, as Classical literature...." Id. at 31. Thus, many students cannot pursue this type of education for a variety of reasons even if they are willing to. Another theory, dubbed the "democratic view," however, suggests that "every child is entitled to the fullest educational provision from which he or she is capable of profiting." Id. at 32.

(61.) See BARNARD, supra note 53, at 63-64. The Health and Morals of Apprentices Bill passed in 1802 and was limited in application to children sent from workhouses to be employed in larger mills and factories. Id. This act helped the narrow group of apprentices by limiting their work to twelve hours per day, requiring employers to have proper work conditions, and mandating education (i.e. reading, writing, and basic math) into the apprentice's day. Id. at 64.

(62.) An 1833 investigation of the availability of schools and school attendance revealed: "out of every ten children of school age, four went to no school at all, three to Sunday Schools only, two to inefficient dame schools or private schools, and only one received a satisfactory education." Id. at 98.

(63.) The 1833 educational grant provided 20,000 [pounds sterling] to be paid to the National Society and the British and Foreign School Society in order too supply half the cost of building new school houses. Id. at 82-83. Since the government's grant of funds increased the government's participation in education, debates emerged over the religious education of the teachers and whether the students should receive any religious training. See id. at 14-15 (discussing the religious difficulty arising from the Church of England and its dissenters).

(64.) See KELLY, supra note 33, at 33 (discussing the "conflicting views in the development of state education" that led up to the national curriculum).