By Rebecca S. Natow, author, Reexamining the Federal Role in Higher Education
Rebecca S. Natow is an assistant professor of educational leadership and policy in the Department of Specialized Programs in Education at Hofstra University.
People often say that higher education policymaking—and educational policymaking in general—are state and local matters, and that the federal government plays only a limited role. And looking at the plain language of the Constitution, this appears to be true: The word “education” does not appear anywhere in its text. The Constitution’s Tenth Amendment states that any powers not specifically given to the federal government will be granted to the states and the people. It would follow, therefore, that education is primarily a state and local matter.
Yet the federal government plays a substantial role in higher education policymaking, and has for quite some time. From the country’s earliest days, the federal government made policy that involved higher education, such as establishing military academies and providing land grants for schools and colleges (Center on Education Policy, 1999; Thelin, 2019). Over time, the federal role in higher education grew stronger and more expansive. In response to the Great Depression, President Franklin Roosevelt’s New Deal brought funding for public works projects on college campuses and early forms of work-study to provide students with part-time jobs to help pay for college (Fass, 1982; Loss, 2013). Toward the end of World War II, the GI Bill of Rights provided housing and education benefits for military veterans, and this policy expanded enrollments and funding for higher education dramatically (Loss, 2013; Thelin, 2019). Following President Lyndon Johnson’s signing of the Higher Education Act of 1965, the federal government played an increasingly essential role in helping students to afford college by providing need-based financial aid grants, federally guaranteed (and later direct) student loans, work-study programs, and tax incentives (Cervantes et al., 2005; Parsons, 1997). Civil rights and nondiscrimination legislation enacted in the mid- to late-twentieth century helped higher education institutions make strides toward equity (Cross, 2014; Johnson, 2014; Loss, 2013). A cabinet-level Department of Education was created in 1979, which regularly issues regulations governing which institutions may receive federal student aid funds (Cross, 2014; Natow, 2017). Today, the federal government oversees a massive student financial aid portfolio, enforces civil rights laws, and enacts policies that influence higher education in numerous important ways.
But how, exactly, has the federal government come to exercise so much power over higher education when education is not mentioned at all in the Constitution? As explained in my book, Reexamining the Federal Role in Higher Education: Politics and Policymaking in the Postsecondary Sector, the federal government finds its authority to regulate higher education in several parts of the Constitution.
Article I, Section 8
Through Article I, Section 8 of the Constitution, Congress has been granted broad powers to legislate. Although the power to legislate education is not specifically mentioned, other enumerated powers have indirectly given Congress this power. Most notably, the federal government’s ability to spend federal funds—and to attach conditions to the receipt of such funds—has given the federal government a great deal of power over higher education (Bagenstos, 2014). Federal policies have required organizations that receive federal funds (as many colleges do through student aid programs and research grants) to abide numerous laws and regulations or risk losing access to the funds. Civil rights laws—such as Title VI of the Civil Rights Act, Title IX of the Education Amendments of 1972, and Section 504 of the Rehabilitation Act—require institutions receiving federal funds to protect civil rights and not unlawfully discriminate. The Family Educational Rights and Privacy Act (FERPA) is another example of a federal law that applies to institutions receiving federal funds.
Other Article I, Section 8 powers affect higher education as well (Kaplin et al., 2020). Through its power to collect taxes, Congress has provided tax incentives to cover certain college costs and encourage charitable giving to non-profit colleges and universities. And Congress’s power to issue patents and copyrights affects higher education teachers and researchers, who routinely create and use intellectual property governed by federal patent and copyright laws.
Article Two grants the U.S. president wide powers to manage the executive branch of the federal government. Over the years, presidents have used executive orders, presidential proclamations, and their influence over executive-branch agencies to promote their higher education policy agenda (Chen, 2017, 2020). Indeed, the U.S. Department of Education’s ability to create rules governing federal student aid programs has become a primary way the federal government regulates higher education today (Natow, 2017). This is done—again—through the federal government’s conditional spending power: Institutions seeking to receive federal student aid must follow the Department of Education’s rules or risk losing eligibility to receive those funds.
Article III of the Constitution established the federal judiciary. Federal courts—and particularly the Supreme Court—have issued numerous rulings throughout history that have profoundly influenced higher education (Alexander et al., 2021; Kaplin et al., 2020). An early Supreme Court case involving higher education was Trustees of Dartmouth College v. Woodward (1819), which protected private colleges from undue state interference. Other Supreme Court cases on desegregation, race-conscious college admissions, the First Amendment, and the limits of executive power have all greatly impacted higher education.
The Post-Civil War Constitutional Amendments
Following the Civil War, the thirteenth through fifteenth amendments were ratified, which gave the federal government increased power to enforce civil rights (Alexander et al., 2021). Policies created based on those amendments apply to higher education institutions as well as many other public and private organizations. Examples include Section 1983 of Volume 42 of the United States Code, which allows for civil lawsuits against officials at public colleges who violate a person’s civil rights.
Summary and Conclusion
In summary, the federal government has and will continue to exercise great control over the higher education sector, despite education not being mentioned even once in the Constitution. The federal government does this by exercising its powers to tax, spend federal funds, regulate intellectual property, and enforce civil rights. As colleges and universities become increasingly reliant on funding from federal sources, the federal government’s power over higher education will only become stronger and more entrenched.
Author headshot by Phil Hinds