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within our State and without these funds then there is no choice but for the reduction of educational opportunities for the children within those systems.

Now, I am of the opinion from reading the material that I have been able to obtain that it was the full intent of the Congress that Federal funds support education at basically the fiscal year 1972 level. I think this is pretty well spelled out in your continuing resolution.

But with the present action of the President, this administration, and the impoundment of these funds, there appears to me to be somewhat of a real power struggle and this power could be something awesome, you might say, in the future whenever we have someone that could act without being accountable to anyone, and whether or not he is going to spend moneys appropriated by the Congress.

In fact you might say a person with this kind of power could retaliate against his enemies and he could reward his friends with the business of controlling the funds that could be distributed over this country.

You have had, I am sure, Mr. Chairman, testimony from other representatives before this committee related to the constitutionality of whether or not this can or cannot be done, and I would not propose to expound or expand upon what has been said concerning the legality of what the President is doing, other than to say that if my humble opinion as an educator, not as a lawyer, that there is a great deal of question as to whether or not our Founding Fathers fully intended for one department of our Government to have this amount of power.

Now I would like to say to you and to the committee that our Council of Chief State School Officers supports the bill that Senator Ervin has introduced, S. 373, but I would like to make one suggested improvement for the bill, if you please.

As I understand S. 373 the President would be required to notify the Congress within 10 days concerning the impoundment of funds, and would have to release the funds within 60 days if the Congress didn't approve. My suggestion would be, sir, for the committee and for the Congress to consider having the President notify the Congress first, and then to have some hearings, and then, during these hearings, to establish the priorities, and if the Congress didn't approve the impoundment of the funds, then the President would not be permitted to impound them. So this is, to me, turning the cart around a little bit, but it would certainly assure the Congress that before he starts doing violence to our priorities, as reflected in your appropriations, you would at least have a chance to hear from the people of this country, and then to reaffirm your previous list of priorities in terms of ,

. The other suggestion that I would make, Mr. Chairman, would be that to either include as another provision, or as an amendment to S. 373, or to amend the Budget and Accounting Procedures Act, whereby the Budget, the OMB, is now required to notify agencies within 30 days after an appropriation is made, to the point where OMB would have to notify the Congress at the same time so that you then would know whether or not he was impounding funds. This way the Congress, I think, would have a better chance of keeping up with what OMB is doing with these funds that you have appropriated. Mr. Chairman, those two suggestions I would leave with you, and to say to you in closing, that we need your help, we need the help of the Congress, in order that we can adequately plan for the education of the people of this country in terms of carrying out the intent of the Congress in support of public education. In the final analysis, unless we develop the mental abilities and manipulative skills of the people of this country commensurate with their potential for successes as adults, then I think our whole way of life would be in jeopardy in the years to come.

So, Mr. Chairman, I appreciate the privilege of appearing before your committee, and I hope that if you have questions, I will be able to respond.

Senator CHILES. Mr. Nix, we thank you very much for your statement, and for the suggestion that you have made. There is a bill that has recently been introduced by Senator Muskie which would require opening up of the budget meetings of OMB, and would allow the Congress to be able to take note of those meetings. We have had considerable talk about that bill since we started these particular hearings.

We appreciate your bringing the problems to us as you face them at the State level. I know it is very difficult to try to do any planning, any hiring, with the kind of chaotic conditions that you now have going on up here.

Dr. Nix. Mr. Chairman, I would also like to say that the council stands ready to present to this committee or other committees of the Congress any information that you might request in support of this legislation, or other legislation, to try to help the Congress do what is best for the public schools of this country.

Senator CHILES. I thank you very much, sir.
We have a question.

Mr. EDMISTEN. Mr. Nix, I note that Senator Ervin asked me to ask you this question: He philosophically disagrees with some of the educational programs, and has indeed voted against them. For instance, the ESAP program. However, that is not the question. The question is whether or not, when the will of the Congress has been voiced by the legislative process—and such legislation is the law of the land the President or anyone else has the constitutional authority to frustrate that will of Congress, regardless of the philosophical view that one may hold.

Dr. Nix. Yes, this the whole issue. In terms of which programs are to be supported, I think, this ought to be a determination of the Congress. In terms of ESAP, I don't agree with the way the bill is written, because it bypasses the States and you cannot do adequate educational planning for the proper utilization of those funds. It goes straight from the Federal Government to a local school system, and I am very much in disagreement of this, and have so expressed to the members of our congressional delegation.

I think that they pretty much agree with Senator Ervin on this. I do support some help in this area but not in the way that it was presented in that particular piece of legislation.

But the whole question that I am addressing myself today here to, is simply the fact that we need to know, as school administrators, what the Congress really wants us to do, and when the Congress speaks, by passing an appropriation bill, then before those funds are withdrawn, then that the Congress have some further input into what funds are to be withdrawn, and/or if they are to be withdrawn at all. This, then, will give to us a better foundation on which to plan for efficient utilization of any or all funds that Congress puts out.

Senator CHILES. Thank you, sir.
(The prepared statement of Mr. Nix follows:)
PREPARED STATEMENT OF JACK P. Nix, SUPERINTENDENT OF SCHOOLS,

STATE OF GEORGIA Chairman Ervin, honorable members of the Subcommittees on the Separation of Powers and Impoundment, it is an honor and a privilege to appear before this distinguished group and to offer testimony on behalf of the Council of Chief State School Officers, the people of Georgia and particularly the public school children of this nation,

The problems facing public education in this country are staggering. They are philosophical, physical and financial. To confront and successfully meet the daily challenges of operating public schools requires the best efforts of every person involved at every level-state, local and federal.

The statement I have to present to you today reflects a serious, almost critical failing on the part of the federal commitment to the educational effort-a commitment without which public education in this nation will almost certainly falter temporarily and probably regress permanently.

The problems of educational funding at the federal level are historic. You are familiar with some of them, and you have heard complaints in years past from administrators about the difficulty of planning and conducting successful education programs without the advance certainty of funding at a given level. Educators are all too familiar with the requirements and difficulties of operating under a Continuing Resolution. That is not the issue here. To be sure, I never thought I would be in the position I find myself today, of considering the Continuing Resolution a blessing and a bonanza. Certainly, if we did not have this resolution to rely on, at least until February 28, public education in Georgia and in every other state would be in chaos. So we are very appreciative for what we have as the result of your action in passing the Continuing Resolution last summer and extending it twice. Especially after your conscientious efforts in passing not one, but two appropriations bills that were carefully planned and drawn up to reflect the priorities you, the Congress, see as most important for the allocation of federal funds. And especially, too, after hearing the President in his budget message chastise the Congress for "delaying consideration of the budget, then resorting to the device of the continuing resolution to carry on activities for which appropriations have not been made."

So the Continuing Resolution is, in the current situation, both a problem and an asset. The problem, of course, arises in the Office of Management and Budget interpretations of the Continuing Resolution and the effect of those interpretations on the day-to-day lives of children in public school classrooms. The impact of the impoundment of educational funds by OMB is very direct and very real in Georgia and in every other state.

The State of Georgia, like other states, receives a substantial amount of federal funds for categorical education programs each year. Once appropriated hy Congress, these funds are distributed to the state and local education agencies in a variety of ways--formula grants, projects, contracts, and so forth.

As I have noted, we are accustomed to operating under the Continuing Resolution, certain in the knowledge that the funds finally appropriated by the Congress would eventually be forthcoming from the budget office.

But our faith has not been rewarded in the current fiscal year, especially in two major programs.

Under Title III of the National Defense Education Act, expressly covered by your Continuing Resolution, the states were to have received $50 million, the same appropriation as in FY 1972. Georgia's share would have been at least $1.3 million for the purposes of Title III, which funds the purchase of equipment for mathematics, science and reading programs, remodeling of buildings and purchase of audiovisual equipment for use in these programs. I realize that $1.3 million doesn't sound like a major sum, but it is significant to the school systems involved. These LEA's, in anticipation of receiving at least the same amount this year as last year, had budgeted local matching funds as required by law and had made plans to use the total of $2.6 million for the purchase of science laboratory equipment, reading machines and programs and modern audiovisual equipment. By denying these funds, the budget office is causing the reduction or elimination of some of the most effective instructional programs being offered in the basic learning areas. Programs that were underway last year are being dropped or seriously curtailed because the systems cannot take them over with their limited resources. And certainly new programs that had been planned to meet the constantly changing needs of the school population will not be started.

90-538-73-31

In addition, as best we can tell, Georgia school systems have not received the estimated $6.6 million that was to have been allocated under the federal Impact Aid program, P.L. 81–874. As you know, this money is intended to relieve the hardships caused by the location of federal installations in certain areas. The funds are granted directly to the systems; therefore we are unable to determine exactly the extent of the impoundment. However, we do know that last year 83 of Georgia's 188 school systems received funds under this act. In FY 72 they shared $11.8 million, and logically, if the terms of your Continuing Resolution apply, they should receive the same amount this year. The $6.6 million figure is an estimate based on the President's budget.

In gathering information for this presentation today, we talked with some of the school systems in the state most likely to be significantly affected. We found these specific instances in which programs would have to be drastically reduced and, in addition, an extra burden would be placed on the local agency to raise taxes in some cases.

In Columbia County, for example, military personnel at Ft. Gordon send 1700 students to the local schools. This amounts to 26 percent of the system enrollment. For the education of these children and to reimburse the school system for tax revenues lost because of the construction of the Clark Hill Dam, the system last year received $255,000 in impact aid ; this year they have received nothing. If the funds are not restored the county school system will be required to levy an additional five mills on property or seriously curtail the educational program. The system faces the loss of teachers, particularly lead reading teachers, and probably a reduction in the Right To Read program.

A similar situation exists in Dougherty County, where the Naval Air Station causes an influx of children into the school system. The system has been receiving approximately $450,000 in impact funds, the loss of which would cause an increase in local taxes or the alternative of reduction in personnel in the highly successful Instructional Materials Center; reductions in transportation services and curtailments of instructional programs in reading; remedial mathematics; elementary physical education, art and music; and driver training and drug abuse education for high school students.

Public school enrollment in Liberty County is 3,619 this year, with 1,086 of the children coming from families of military personnel. The system received $297,000 in impact aid last year, an amount which made up 23 percent of the local budget for education. To replace these funds, if they are lost permanently, the system will be forced to levy nine mills more than it is already taxing. Or it must reduce library and transportation services, cut back on instructional materials and teachers' aides and eliminate a salary supplement now being paid to teachers.

One of Georgia's more populous urban counties is Muscogee, the location of Ft. Benning. The school system has been receiving $1.3 million in impact funds amounting to six percent of the total budget. To replace the lost funds would require a three mill tax increase, but this is impossible because the county is now levying 19.5 mills and the legal limit in Georgia is 20 mills. So, according to local officials, educational programs would be affected systemwide by the drastic curtailments that would be necessary if funds are not forthcoming.

The situation in Chatham County is just as serious. The system has been receiving $308,000, which amounts to one and one-half percent of the budget. This county is already taxing at the legal limit of 20 mills, so loss of impact funds will mean a reduction in the number of teachers, a higher pupil-teacher ratio, cutbacks in instructional materials and delays in building repairs. Exceptional children will be deprived of special programs, the program for children with Specific Learning Disabilities will be eliminated, and vocational education offerings will be reduced.

As we talked with school officials in these five systems we found that the problems are much greater than the mere loss of federal dollars. The situation is compounded by the fact that these and 78 other school systems, in anticipation of receiving impact funds as usual this year, had committed themselves and their boards of education by including the funds in the general education budget and contracting with personnel to fill positions. The systems must pay for the services for which they have already contracted and cut corners in other programs to make up the differences. So when I indicate certain programs will be eliminated if the funds are not restored, it may seem that no effect is being felt now. The problems do exist today, and they will be worse next year as the full force of these cutbacks is felt.

There is another program that has been affected by the impoundment of funds, and that is the business of Indian education. Although Georgia is not directly involved in this program, I know that major problems have occurred in many states—including North Carolina, Mr. Chairman-because of the loss of these funds.

The foregoing statements recount some of the ways in which the Executive impoundment of education funds is hampering the states in their efforts to carry out your clearly stated intention that public school programs be continued in 1973 at least at the same rate as they were conducted in FY 72.

This action by the President and the Office of Management and Budget, so obviously contrary to what you, the Congress, intended in the Continuing Resolution, raises a serious question as to whether the Executive or the Congress has the best interests of the people at heart. I know the President has said that "the Congress represents special interests,” and that he "represents the nation's general interest." I suggest that the President's impoundment of these particular funds is testimony that the opposite is true.

It is awesome to contemplate the power inherent in the Executive's refusal to spend lawfully appropriated funds that are so desperately needed and so clearly mandated by the Congress. By such action the Executive may, at his discretion and without accounting to anyone, retaliate against his opponents, reward his supporters, establish his own priorities and repudiate the power of Congress.

The Constitutional issues involved in this question have been thoroughly presented to this subcommittee by many well-qualified persons, and I would not presume to suggest that I could add to the impressive testimony on this matter.

I will, however, comment briefly on the bill you are considering and offer some suggestions along that line.

I understand that the Chairman's bill, Senate Bill 373, would require the President, within ten days after the impoundment of any appropriated funds. to notify the Congress of his action and to release the impounded funds after sixty days unless the impoundment is approved by the Congress during the interim.

This Bill is certainly a step in the right direction. It would relieve the present crisis in which we find ourselves. But if you will, consider the possibility of this alternative. Instead of allowing the impoundment of funds before notification of Congress, would it not give you more authority to require that the Executive notify you prior to impoundment so that hearings could be held on the potential effect of the proposed impoundment? Such a procedure would eliminate the kind of hostile confrontation between the Congress and the Executive we are now experiencing.

There is another proposal for your consideration that would greatly increase your knowledge and power over the establishment of priorities and the allocation of funds.

Current provisions of the Budget and Accounting Procedure Act require that the Office of Management and Budget notify the agency of monies granted within a very specific time frame after funds are appropriated. In order that Congress be kept equally informed of the current status of its appropriated funds, I suggest that the Budget and Accounting Procedure Act be amended to provide for the notification of Congress at the same time, or certainly soon after, the notice of available funds is sent to the federal agency. Such a procedure would at least make it possible for you to determine whether or not funds had been impounded by comparing your appropriation against the notification of availability.

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