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[STAMP] APPROVED                                                                                                                                                      ACTION
November 19, 1975                                                                                                                 Last Day: December 2, 1975

 

THE WHITE HOUSE

WASHINGTON

November 28, 1975

 

MEMORANDUM FOR:                   THE PRESIDENT

FROM:                                                JIM CANNON

SUBJECT:                                          Enrolled Bill S. 6 – Education for All Handicapped Children Act of 1975

 

This is to present for your action S. 6, the Education for All Handicapped Children Act of 1975.

Background

S. 6 extends permanently, and establishes a new formula for, Federal grants to States and localities for education of handicapped children.  It sets forth State eligibility requirements, including service to all handicapped children and individualized educational programs and grievance procedures.

The formula provision of S. 6 would result in a growing proportion of the costs of educating the Nation’s handicapped children being borne by the Federal government.  Its supporters believe State and local governments lack adequate financial resources to provide education for all handicapped children.

A series of court decisions have held that all handicapped children have a constitutional right to a free public education.  Last year the Congress enacted the “Mathias amendment” which required all States to establish a goal of providing full education opportunities for all handicapped children and to provide parents with information and an opportunity to challenge the services given their handicapped children.  It is against this backdrop that S. 6 must be viewed.

On October 7 Secretary Mathews advised the conferees that unless S. 6 was substantially modified he would recommend you not sign it.  The Administration’s major concerns were not addressed by the conferees and the conference report was adopted 404-7 in the House and 87-7 in the Senate.

The authorization levels were reduced by the conferees and people such as Al Quie believe the best possible bill was produced.  Al Quie has announced that should you veto, he would vote to override.

The allocation formula in the enrolled bill would be first applied in FY 78.  The formula would produce increased authorizations each year until FY 82 and then level off.  Grants to states would be reduced proportionately if appropriations were not sufficient to pay the full authorization under the formula.

For FY 78, 50% of the allotments under the formula could be used by the States and 50% would pass through to local educational agencies.  Starting in FY 79 the State share would be 25% and the legal share 75%.  Because of this provision in the enrolled bill the National Conference of State Legislatures has urged you to veto.  It sees the pass through as lessening the State role, though it applauds the increased Federal commitment the bill would bring about.  No other group has urged a veto.

The concept of “excess costs” is one to which we have raised objection throughout consideration of this bill.  It is not an easy figure to obtain in an accounting sense and, conceptually, it opens the door to large scale Federal expenditures for areas of elementary and secondary education.

Budget Impact

The Congress has appropriated the full amount of the present statutory authorization for fiscal years 1976 and 1977 (advance funding) -- $100 million and $110 million, respectively.  Your recent education rescission proposals included a recommended rescission of $35 million for the fiscal year 1977 State grant funding, which would bring the level down to $75 million for that year.

Estimates provided by HEW of the amounts required for fiscal years 1978-1982 to carry out the provisions of S. 6 are shown below:

Fiscal years. $ in millions.

 

1978

1979

1980

1981

1982

Basic grants

387

794

1,500

2,300

3,100

Pre-school incentive grants

168

177

192

206

218

Evaluation and Statistics

27

40

40

N/A

N/A

Architectural barrier removal grant

N/A

N/A

N/A

N/A

N/A

 

Arguments for Approval

  1. Disapproval will be interpreted by many to reflect a lack of concern for the educational needs of the handicapped and the reasons for your disapproval are not likely to be well understood by the public.
  2. The States cannot shoulder the burden of all the extra costs involved in the education of the handicapped.
  3. Of the approximately 8 million handicapped children (from birth to age 19) in the United States, only 3.9 million are currently receiving an appropriate education.
  4. While the enrolled bill entails potentially high budget costs in later years, the conferees scaled down drastically the authorizations for the earlier years and have provided for a gradual increase in the Federal Government’s participation.

Arguments for Disapproval

  1. Federal funding of education activities for handicapped children should be mainly aimed at assisting States in building capacity.  S. 6 would drastically alter traditional Federal-State roles by having the Federal Government pay a substantial portion of the “extra costs.”
  2. The grant formula for “entitlements” in the enrolled bill is based on the erroneous assumption that only the States, and not the Federal Government, have limited financial resources.  Full funding of the formula would require appropriations which cannot realistically by expected.  The bill would thus falsely raise the expectations of the parents of millions of handicapped children.  As Senator Muskie noted in the floor discussion, “… the probability forfeit on commitments to other important priorities in the Federal budget, it strikes me as unlikely that we will be able to fund this program at the full authorization in the near future.
  3. The new formula contained in S. 6 presents a significant danger that States would classify children as handicapped too freely in order to qualify for more funding.
  4. The revised provision for congressional disapproval of HEW regulations under all education statutes, requiring the congressional 45-day review period to being only at the time the final regulation is issued would further restrict the Department’s ability to issue would further restrict the Department’s ability to issue regulations in a timely fashion.  Moreover, S. 6 retains the present constitutionally defective authority for the Congress to disapprove HEW regulations by concurrent resolution.

Agency Recommendations

Office of Management and Budget                                 Disapprove

Department of Health, Education and Welfare                Disapprove

Department of Interior                                                      No objection

Department of Justice                                                       No objection

Department of Labor                                                        No objection

General Services Administration                                      No objection

Civil Service Commission                                     Approve

Comments

Lynn:                                 “… the arguments for a veto are more persuasive… The implied Federal funding levels are clearly inconsistent with our current budgetary objectives… moreover, the proposed shift in the Federal role to permanent service cost funding and detailed control.. is clearly inconsistent with your desire to enhance State and local discretion… Since a vote to override a veto is a virtual certainty, should you decide to approve the bill, we would suggest a signing statement pointing out that full implementation of its provisions would not take effect for some time, and that you will recommend amendments that will maintain the appropriate division of Federal and State-local government roles in education handicapped children and that will be workable within realistic appropriation levels.

Mathews:                          “The bill, while falsely raising the expectations of what all levels of government can do… is likely to impair our ability to deliver meaningful services to children by imposing unnecessary new administrative and procedural burdens on State and local educational agencies… My hope would be that the President’s veto would induce some alternative legislation which would allow him to support this good objective in a sound fashion.”

                                          Secretary Mathews has indicated privately that he would be very comfortable with your signing the bill.  His written veto request was to assure that should you veto, no one would attempt to undercut your position by citing HEW’s views.

Friedersdorf:                     Recommends veto from a Congressional Relations point of view because of the importance of being consistent once we give a strong veto signal.  But from a political standpoint, recognizes it might be advantageous to sign.  Says an override is virtually certain.

Marrs:                                Recommends approval.

Buchen (Chapman):          “No objection to veto.”

Recommendations

Although the arguments in favor of a veto are persuasive, I believe you should give consideration to signing the enrolled bill.

The arguments in favor of signing this bill are more political than programmatic.  It is not good legislation, but I think you could sign it and not be inconsistent with your vetoes on other matters nor weaken your arguments on issues to come before the Congress in the coming months.  As OMB notes, since full implantation of the provisions of the bill would not take effect for some time, you could sign the bill and then recommend amendments that will maintain the appropriate division of Federal and State and local government roles.

It is a very close decision, but I recommend you sign the enrolled bill and issue a signing statement which indicates in strong terms your concerns and your intention to recommend the law be amended.  A proposed signing statement is at Tab B.

Decision

  1. Approve S. 6 (Tab D) and issue signing statement at Tab B.

      [Gerald R. Ford signed initials]____

  1. Disapprove S. 6 and issue veto message at Tab C.

_________________________________

[STAMPED] Gerald R. Ford Library

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