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Frank R. Kemerer's response ("Mueller and Nyquist: Highlighting the Economic Consequences," Education Week, Sept. 21, 1983) to my review of Mueller ("The Impact of Mueller: New Options for Policymakers," Education Week, Aug. 24, 1983) seems to overlook the critical difference between Mueller and Nyquist, an earlier Supreme Court decision striking down a multifaceted plan of assistance to children in private schools in New York. The majority distinguished Nyquist and similar cases because the Minnesota tax-benefits plan was open to all families with children in public and private schools. Here is the open door for new plans, whether they be tax deductions, tax credits, or cash grants to families.

Tax-credit plans can be designed to be available to parents of children in public and private schools just as easily as tax-deduction plans. Most tax-credit plans also have a lid, as is the case with the child-care tax credit, and if designed in this way, can be more valuable (relative to income) to lower-income families than the typical tax-deduction plan. Tax-credit plans also have the potential for a negative tax, an item that would benefit those with little or no income. The Senate Finance Committee is offering a "refundability amendment" that will permit cash reimbursement to those who are too poor to claim a credit in the proposed federal-education tax-credit plan.

In any case, the three-part test for establishment of religion--intent to aid religion, effect of aiding religion, and excessive entanglement--appears equally applicable to credits or deductions.

Following the same reasoning, cash grants can also be made legally available to poor families, with children in either public or private schools. Indeed, this type of plan makes greater sense than any kind of tax benefit, both as a matter of public policy and as a matter of educational choice. Obviously, the rich already have a choice, and tax benefit-plans tend to favor them.

If, after Mueller, the Court were faced with a case involving a system of education cash grants (available to all families), it would not only have a very hard time distinguishing it from Mueller, but it would be forcing bad public-policy choices as well. It would be telling legislatures that they can assist educational choice for those who pay taxes, but they cannot for those who do not--the very poor.

Mr. Kemerer also says I underestimate the economic and political impact of Mueller. Here, I am afraid he has misread my essay. I deliberately avoided any economic, political, or social analysis of Mueller, other than to observe that the impact on racial balance may be positive, and that the poor have no need of tax benefits. In fact, my analysis of Mueller and my views on the wisdom of these plans diverge. In the former, I feel certain; in the latter, ambivalent. I feel, first, that the Court has been unduly restrictive in what it will permit state legislatures in the area, and, second, that the distinction it now makes--approving a program because it is also available to public-school children--is a bit silly. Yet, it is there. I had hoped for a more careful rethinking of the tripartite test used to determine what is an establishment of religion.

But Mueller is now written, and I do believe it permits a variety of programs, as long as the entanglement test is met. A legitimate intent and a valid effect seem proven if the programs are made universally available to families of public- and private-school children. I also believe that such cash benefits would have to be for compensatory and enrichment programs, as public-school children are entitled to their basic education free, under virtually every state constitution.

I am willing, in fact, to enter into a friendly public wager with Mr. Kemerer that: 1) if the Court composition remains the same; 2) if any state (or the federal government) actually does provide a universal cash grant for compensatory education (making it clear it goes above and beyond any existing free public-education entitlement); and 3) if there are no unduly entangling provisions affecting the state's relation to the parochial school, then the Court will uphold the plan under the federal Constitution, citing Mueller.

A final note: A sentence in my essay identified the Minnesota tax-deduction plan as removing barriers to the implementation of other financial means of supporting parents who want to send their children to nonpublic schools. It is "the Minnesota case" that removes such barriers; Minnesota's law does not. My apologies to anyone who was misled by the error.


Patricia Lines Director of the Law and Education Center Education Commission of the States Denver, Colo.


You recently reported that the University of Nebraska Foundation had purchased Whittier Junior High School, the first building in the U.S. designed exclusively as a junior high school in 1923 ("First Jr. High School Sold in Nebraska," Education Week, Oct. 19, 1983).

From first-hand experience, I am aware that the Washington Junior High School in Kenosha, Wis., was designed and built exclusively as a junior high school in 1920. However, there are many schools that can claim an earlier date. The "Statistical Survey of Education 1919-1920" (Biennial Survey of Education in the United States, U.S. Bureau of Education Bulletin 1923, No. 16) reports that 883 junior high schools were in existence by 1920. Granted, not all were built as junior highs, but several were.

Frank Bunker identified 24 cities with populations of 8,000 or more that had by 1911 modified their grade organization to incorporate junior-high-school concepts. More than likely, the first "purpose built" junior-high honor should go to Richmond, Ind., where they changed the curriculum and housed 7th- and 8th-grade students in a separate building in 1896. Columbus, Ohio, and Berkeley, Calif., claim the first 6-3-3 organization and so claim credit for giving birth to the first junior high schools.

It is not really important which city can claim credit for the first junior high school. The early junior highs and today's middle schools were developed to respond to the unique needs of boys and girls at a critical stage in their development. The sale of the junior high in Lincoln, Neb., typifies the problems faced by junior highs and middle schools across the nation today. As enrollments and resources decline, these schools generally experience the most intense cuts in faculties and facilities.

After all, anyone can teach junior-high kids anywhere, can't they?


Charles E. Jaquith Teacher Education and Professional Development Central Michigan University Mount Pleasant, Mich.


Benjamin Stein's Commentary, "'A War With Japan? Really?' The 'Astonishing Ignorance' of Some Teen-Agers," (Education Week, Oct. 26, 1983) may be largely explained by the way in which history seems to be taught by some college teachers--as a collection of unrelated trivia to be regurgitated on an examination.

Witness the following questions typical of two sophomore Western Civilization exams in my possession (and, I hasten to add, not from my college):


Percentage of 17th-century French population made up of serfs|

Number of deaths attributed to the Plague in Naples 1656|

The names of Savery and Newcomen are associated with|

Basic motive behind the Anglo-Dutch wars|

The Renaissance Galenists believed the straight thigh bone was caused by|

|

There were|spheres in Ptolemy's universe


I challenge the most learned of history professors to pass such examinations, much less to find in such 'junk learning' any redeeming value.


Moses S. Koch Dean College of Human Development and Learning Murray State University Murray, Ky.

I read Benjamin Stein's Commentary, "'A War With Japan? Really?' The 'Astonishing Ignorance' of Some Teen-Agers," (Education Week, Oct. 26, 1983) and found it very astonishing! Not only did I feel put down, but I think people tend to make generalizations about things like this. I'll bet you any "ignorant teen-ager" could answer many of the questions Mr. Stein asked!


P.S. You do know where Vermont is, don't you?


Sebastian Toomey 8th-grade student Grafton Elementary School Grafton, Vt.


Even though you say you take no editorial positions, your editor's note to Robert D. Fleischer's letter, "The Real Problem of Defining Excellence" (Education Week, Oct. 26, 1983) makes me wonder. Mr. Fleischer wrote in response to Rachel B. Tompkins, executive director of the Children's Defense Fund, who said in "Finance Experts Debate Role of Equity in Excellence Movement" (Education Week, Oct. 5, 1983), "How about, 'Every child at grade level'?"

Your response leaves the impression that you agree with Ms. Tompkins. If you do not, you should have either said nothing or given the definition that test makers and textbook publishers use when they define the term "grade level," and which I'm sure is the definition Dr. Fleischer was using.

The furor over "so many students not performing at grade level" is caused by the public providing their own definitions for the test makers' and textbook publishers' term, "grade level."


Henrietta Holcomb Assistant Superintendent of Elementary Education Fayetteville Public Schools Fayetteville, Ark.

Editor's note: The editor's note referred to did not take a position but offered only Ms. Tompkins' clarification of her own remark. We would welcome other reader responses as to the appropriate definition and use of the term "grade level."


Ivan B. Gluckman omits one very pertinent fact in his Commentary, "Students and Teachers v. School" (Education Week, Nov. 2, 1983). Students and teachers could not successfully sue school districts under the Civil Rights Act of 1871 if school districts did not first take actions that violate the civil rights of those students and teachers. Federal courts have been quick to rule in the school districts' favor and against teachers when teachers allege constitutional violations to cover up for other shortcomings, as in Mt. Health City School District Board of Education v. Doyle.

The fact is that it is not easy to prove violations of constitutional rights in federal courts. Mr. Gluckman laments the proliferation of civil-rights suits. He should be more concerned about violations of students' and teachers' civil rights by school districts. The situation certainly speaks to the great need for better education in school law for school-district employees.


James Gordon Ward Director of Research American Federation of Teachers Washington, D.C.

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