Opinion
Federal Commentary

Congress Took a Short Cut, Again

By Christopher T. Cross — September 30, 2004 4 min read

The United States Congress recently passed an important piece of legislation, the Omnibus Reconciliation Act of 1981, that affects the vast majority of our social programs--from Social Security and child nutrition to unemployment and mental health.

Because legislation has always been written in tortuous language, a law’s “legislative history"--composed of the texts of Congressional hearings, bill reports, floor debates, and so forth--is nearly always vital to understanding why the Congress did something, and what it meant by including a specific item or using a special term.

When a government agency’s attorneys write the guidelines and regulations that constitute the practical applications of a law, they carefully read this history, and quite often, they cite a paragraph spoken on the House floor or a sentence in a committee report.

Perhaps more important, legislative history is an invaluable tool for judges in federal courts who must interpret the intent of a law in making their decisions.

The 1981 Reconciliation Act has almost no legislative history. President Reagan’s persuasive eagerness for massive spending cuts and changes in social programs, along with David Stockman’s brilliant strategy of using the Congressional budget process to accomplish these ends, meant that most of the procedural niceties had to be by-passed. (Also contributing to the outcome was a Congress split between political parties.) The result is an expedited, truncated process that left more than a few scenes on the cutting-room floor.

This alone is disturbing, but it is all the more so because, with respect to education, we will see history repeat itself. On three occasions during the 1970’s, Congress enacted, through a process that left little room for an adequate legislative history to be developed, provisions which have had dramatic and far-reaching effects on our schools. In every case, law suits and administrative actions are ongoing still, in one case more than nine years after enactment of the original statute.

The first of these laws is Title IX of the Education Amendments of 1972. Title IX bars sex discrimination in federally assisted education programs. Although this sounds straightforward and simple, from that simple, short statement grew civil-rights rulings on the length of hair, the right of a school to have an all-boys choir, and the existence of father-son banquets and coed athletic teams. In the absence of any legislative history in either house of the Congress, the bureaucracy was left to interpret just what Title IX meant. Although many might argue that the bureaucracy did a poor job (and it did), it is also true that the Congress failed in its responsibility by not giving the executive branch (and the courts) adequate information on which to base government policy.

The second instance occurred in 1974 when the Senate adopted, without committee consideration, an amendment offered by Senator James Buckley, Republican of New York, requiring that students have access to their school records. Although Mr. Buckley was apparently motivated in part by a story in a Sunday newspaper supplement that dealt with elementary-school records, the amendment covered all levels of education.

The result: When you are asked to write a letter of reference for college or graduate-school admissions, note that unless specifically waived, the person in question has the right to see your recommendation. Schools now find they get less candid letters and many phone calls!

But these examples pale beside a seemingly innocuous 30-word addition to the 1975 amendments to the Rehabilitation Act. The amendment says simply that all federally assist-ed projects should be accessible to the handicapped. Again, minimal legislative history brought years of regulatory battles, court suits, and, earlier this year, the repeal of some regulations.

In each of these cases, few members of Congress considered the consequences of their actions, or even thought much about the difficulty of implementing the language of the law. This year, during consideration of the Reconciliation Act, the awareness of what the legislative process had wrought was greater--in part because of a series of devastating newspaper stories pointing out major flaws in the bill, such as the failure to continue the operations of the National Science Foundation.

Although the reconciliation bill was signed only in August, in the field of education we already are hearing the first rumblings of discord created by the meager history accompanying the act. The Office of Management and Bud-get has suggested that the General Education Provisions Act (GEPA)--a statute governing all programs administered by the Department of Education--does not apply to the chapters of the Reconciliation Act dealing with education. OMB claims that state governors and not the state education agencies should be the recipients of the Federal allocation. The department is fighting that interpretation.

Five years from now we will probably look back at the Reconciliation Act as the seed that produced continuous nourishment for the bureaucrats, lawyers, and judges merrily interpreting, litigating, and adjudicating the law that Congress, in its haste to give the President his due, passed with the speed of light (relatively speaking).

Much that was needed has been accomplished through the reconciliation process. It is too bad, however, that Congress can’t be persuaded to include in each bill a measure that we might term an “Irritability Index” or a “Confusion Quotient.” If taken seriously, it might save us all untold days, hours, and months of grief and confusion. It would certainly do much to stifle the growth of both legislation and litigation.

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A version of this article appeared in the December 14, 1981 edition of Education Week as Congress Took a Short Cut, Again

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