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Court's Legislative Veto Ruling, Other Decisions, Affect Education

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Washington--The U.S. Supreme Court's recent ruling that legislative vetoes are unconstitutional may force legislators to be more precise in drafting bills, but the Congress is unlikely to lose much authority over key education policy issues, according to knowledgeable observers.

The landmark decision essentially ended a practice begun 51 years ago, in which both or either of the houses of the Congress or certain committees of the Congress have had the power to nullify regulations written by the executive branch. The Court's ruling could affect some 50 laws that are still in effect, including two that give the Congress veto power over all education regulations.

Separation-of-Powers

In the 7-2 decision in the case, Immigration and Naturalization Service v. Chadha, the Court found that use of the veto violated the Constitution's separation-of-powers provisions.

Analysts said the decision probably will affect foreign-affairs issues more profoundly than domestic ones because it is there that the executive branch more frequently takes the initiative, especially in "crisis" situations.

"I'm sure Congress wants [legislative veto power], but if you look at instances where it is used, you see that [most controversies between the executive and legislative branches] can be worked out with other mechanisms," said Roger Rice, a lawyer with the Center for Law and Education.

John Jennings, counsel for the House Elementary, Secondary, and Vocational Education Subcommittee, said the ruling would remove a "deterrent" to executive rule-making that conflicts with Congressional intent. He said the threat of a Congressional veto might have made the executive branch more responsible.

The ruling appears to nullify portions of two laws that give the Congress the power to review Education Department regulations--the 1974 Amendments to the General Education Provisions Act, which gives the Congress veto power over all education regulations, and the Higher Education Amendments of 1980, which covers rule-making involving family-contribution schedules for students receiving college aid.

The first law allows vetoes only when agencies devise regulations that directly contradict Congressional acts, while the second allows virtually unlimited legislative veto power. The Congress has vetoed six education regulations under the two laws, said an official with the House Education and Labor Committee.

Pension Case

In another decision with implications for education, the Court struck down the use of sex-based mortality tables in determining pension benefits for employees. The decision voided the common practice in the insurance industry of paying retired women smaller monthly benefits because mortality tables show that they live an average of seven years longer than men.

In a 5-to-4 decision in the case, Arizona v. Norris, the Court said the pension schedules do not need to be adjusted retroactively.

The decision will have broad implications for educators. According to a 1980 Rand Corporation report commissioned by the National Institute of Education, all state-operated retirement systems for teachers offer annuity options based on the sex-based pay schedules.

The tables are also used by the 450,000-member Teachers Insurance and Annuity Association-College Retirement Equities Fund, which includes private-school and college employees.

The American Council of Life Insurance, in a friend-of-the-court brief filed in the case, estimated that a decision in favor of unisex benefit tables would cost $2 billion per year.

The case stemmed from an Arizona state employee's contention that the pension plans offered by the state violated Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment on the basis of race and sex.

Under a state retirement plan, Nathalie Norris made monthly payments of $199, which were channeled into tax-free investments. The return on the investments were to be paid upon retirement to Ms. Norris in monthly installments.

Although Ms. Norris made the same retirement contributions as her male colleagues, she was to receive $34 less each month during her retirement than males who made the same contributions.

The Court took several other actions that could affect education issues, including:

Discrimination complaints. In a close decision, the Court held that plaintiffs can win civil-rights cases without proving that the discrimination against them was intentional.

The 5-to-4 ruling holds that people who claim racial bias under specific regulations for Title VI of the Civil Rights Act of 1964 do not have to prove that the bias was intentional. But in a 7-to-2 decision, the Court also held that claims of bias under the broader language of Title VI must prove intent.

The Court also ruled that victims of discrimination who fail to prove intentional discrimination are not entitled to retroactive compensation.

The case, Guardians Association v. Civil Service Commission, was brought by black and Hispanic police officers in New York City who claimed that the city's employment tests were discriminatory.

Linking federal student aid to draft registration. The Court stayed a lower court's injunction, which had blocked the Education Department from requiring students to show that they had registered for the draft before they could receive federal student aid.

The Court did not state its position on constitutional issues in its one-paragraph statement, which stayed the permanent injunction of the U.S. District Court for Minnesota.

The Minnesota court had ruled that the law violated students' constitutional right to avoid self-incrimination.

The government is now appealing the Minnesota court's decision, and the case could reach the Supreme Court this fall.

Education Department officials said 4 million students will have to either state that they have registered for the draft or that they are not required to register. The officials said that, although they were pleased with the high court's ruling, there could be some confusion about what students receiving aid are required to do.

(In a related development, a federal appeals court in California last week reinstated the indictment of a draft-registration protester, David A. Wayte, and affirmed the legality of the registration law.)

(The ruling reversed a federal district court's decision last fall in favor of Mr. Wayte, who argued that he is the victim of selective prosecution. The American Civil Liberties Union said it will appeal the decision.)

Prayer in the legislature. In a decision that could affect the debate over school prayer, the Court held that daily prayers in the Congress and the state legislatures do not violate the separation of church and state.

Experts said two major differences between prayer in the legisla-tures and prayer in the schools probably would minimize the decision's impact on the school-prayer debate.

The issue differs from the Court's case because children are required to attend school, and they are considered to be "impressionable," said an official of the Americans United for the Separation of Church and State, which opposes school prayer.

John Baker, the general counsel for the Baptist Joint Committee on Public Affairs, added that the decision would affect the school debate ''only in terms of what slogan [school-prayer proponents] can use." He said he was "disappointed" by the decision.

Chief Justice Warren Burger wrote, in the 6-to-3 majority opinion, that prayer in legislative bodies was a cherished tradition. Associate Justice William Brennan, in the dissent, argued that the Court should have used the "establishment tests" that generally govern church-state issues.

The case stemmed from a lawsuit filed by a Nebraska state senator that challenged that legislature's practice of daily prayer. The practice was ended in 1981.

School drug searches. The Court refused to review a federal appeals court's decision barring a Texas school district from routinely using trained dogs to sniff students in class to detect possession of illegal narcotics.

Violating the Law

The U.S. Court of Appeals for the Fifth Circuit held in Goose Creek School District v. Horton that the use of the specially trained dogs constituted a "search," and that no search could take place unless there was some basis for believing that a particular student was violating the law.

The Court did not note in its unsigned opinion any differences between the Goose Creek case and an earlier case in which the Court upheld the right of police to use trained dogs to sniff luggage at airports.

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