The House and the Senate, despite strong warnings from the Education Department (ed) that they lacked the authority to do so, voted resoundingly last week to veto final regulations governing Chapters I and II of the Education Consolidation and Improvement Act of 1981 (ecia).
Congress’s bipartisan repudiation of the ecia rules could mean that state and local education agencies, only days away from the start of the new school year, will have no formal guidelines by which to spend nearly $3 billion in education aid for disadvantaged children and for the new education block-grant program.
State officials charged with implementing these programs predicted last week, however, that a lack of definitive regulations will not have an immediate or a dramatic impact on their operations. But some also suggested that the vetoed regulations were written so broadly that they would not have been of much help to educators had the Congress not acted against them.
The primary objective of the dramatic vote in both houses, according to observers, was to send a signal to the executive branch warning it against further attempts at rewriting and reinterpreting legislation by means of the regulatory process.
The veto of the ecia regulations, which were published in the July 29 edition of the Federal Register and scheduled to go into effect on Aug. 12, followed a prolonged argument between legislators in both parties and Secretary of Education Terrel H. Bell over the applicability to Chapters I and II of a wide-ranging federal law known as the General Education Provisions Act (gepa), which contains numerous rules governing the operation and administration of federal education programs.
In addition, however, gepa guarantees the Congress’s right to review and to veto federal education regulations within 45 days of their publication.
In publishing both proposed and final rules for Chapters I and II, ed officials stated that the Congress did not clearly indicate that gepa would be generally applicable to the two federal programs when it enacted them last year. In doing so, the officials reasoned, the Congress stripped itself of the right to veto subsequent Chapter I and II regulations when it passed the ecia last summer.
Strongly Disputed
That interpretation of the Congress’s intentions was strongly disputed by both Representative Carl D. Perkins, Democrat of Kentucky, and Senator Orrin G. Hatch, Republican of Utah, in letters sent to Mr. Bell earlier this year. Representative Perkins and Senator Hatch chair the House Education and Labor and the Senate Labor and Human Resources Committees, respectively.
Last Tuesday, following a unanimous vote of disapproval on Aug. 3 by Representative Perkins’s committee, the House voted 363-to-0 to veto the proposed Chapter I and II regulations. Later that day, the Senate took up the House’s resolution of disapproval without referring it to committee and approved it by a voice vote.
Mr. Bell, in a brief interview last Wednesday, called the veto of the regulations “a serious problem” but declined to reveal how he would respond to it. The Secretary also declined to say whether in his judgment the Congress’s action was legal. “I am going to have to appraise the situation,” he said.
Because of the disagreement over gepa and whether Congress was legally permitted to veto the rules, their legal status appears uncertain. There has been at least one indication that the matter may have to be resolved by the federal courts.
Chapter I, formerly known as Title I, and Chapter II, governing the new education block grant, formally went into effect on July 1.
Late last month, ed mailed approximately $2.4 billion in final Chapter I grant awards to states on the basis of 1970 census data, a decision that was challenged this summer in the federal courts and that could eventually face a test before the U.S. Supreme Court. (See related story on Page 7.) ed has also sent approximately $437.5 million in Chapter II aid to all but three states.
According to John F. Jennings, a majority counsel to the House Education and Labor Committee, the Congress has invoked its authority under gepa to veto federal education regulations on only four previous occasions, all during the Carter Administration. And on those occasions, he said, the Administration eventually succumbed to Congress’s wishes.
Mr. Jennings said it would be difficult to predict how the Administration will react to the Congressional veto. “But one thing is quite clear,” he added. “Congress is saying unanimously that gepa does apply to these two programs. That’s every liberal and conservative, every Democrat and Republican.”
Mr. Jennings also said it is premature to speculate how the Congress would react should the Administration decide to ignore the veto. He did say, however, that an amendment could be attached to this year’s ed appropriation bill prohibiting the department from using federal funds for programs whose regulations have been vetoed by the Congress. In addition, he said, individual Congressmen and Senators could file suit in federal court against ed demanding that it comply with the veto.
Two state officials responsible for the implementation of the federal programs in question said last week that the absence of definitive regulations for Chapters I and II would have “no immediate impact” on their operations.
“The regulations practically repeat word for word the language of ecia, and the act provides for the distribution of money to the districts, so we really aren’t too worried,” said Clarence Wells, the director of Chapter I programs in Michigan. He said that his office has been advising districts to “stick closely” to the regulations that governed the old Title I program.
“Actually, the new rules are so minimal that they really haven’t been of much help to us at all,” Mr. Wells continued. “I feel that the Administration may have gone overboard with this deregulation idea, perhaps to the point that it will destroy the spirit and intent of the legislation, which is helping disadvantaged children. That could very well happen unless the states come in and add some protections against abuse on their own.” He said state education officials in Michigan were considering such a move.
Karol Richardson, who oversees Chapter II for the Illinois State Board of Education, said that his office would “continue to function normally” in the absence of final regulations.
“It’s not that unusual not to have final regulations when the federal government starts up a new program,” she said. “All you can do is function with the best information available, and hope that all will work out for the best.”
