Reprinted with permission from The Pioneer Institute:
IS THE US DEPARTMENT OF EDUCATION VIOLATING FEDERAL LAW BY DIRECTING STANDARDS, TESTS, AND CURRICULA?
Analysis conducted by former general counsel and former deputy general counsel of
U.S. Department of Education
BOSTON, MA —Despite
three federal laws that prohibit federal departments or agencies from
directing, supervising or controlling elementary and secondary school
curricula, programs of instruction and instructional materials, the U.S.
Department of Education (“Department”) has placed the nation on the
road to a national curriculum, according to a new report written by a
former general counsel and former deputy general counsel of the United
States Department of Education.
The Road to a National Curriculum: The Legal Aspects of the Common Core Standards, Race to the Top, and Conditional Waivers
is sponsored by Pioneer Institute, the Federalist Society, the American
Principles Project, and the Pacific Research Institute of California.
With only minor
exceptions, the General Education Provisions Act, the Department of
Education Organization Act, and the Elementary and Secondary Education
Act of 1965, as amended by the No Child Left Behind Act (NCLB), ban the
Department from directing, supervising, or controlling elementary and
secondary school curriculum, programs of instruction, and instructional
materials.
“The Department has
designed a system of discretionary grants and conditional waivers that
effectively herds states into accepting specific standards and
assessments favored by the Department,” said Robert S. Eitel, who
co-authored the report with Kent D. Talbert.
The authors find that
the Obama administration has used the Race to the Top Fund and the Race
to the Top Assessment Program to push states to adopt standards and
assessments that are substantially the same across nearly all states.
“By leveraging funds through its Race to the Top Fund and the Race to
the Top Assessment Program, the Department has accelerated the adoption
and implementation of the Common Core State Standards (“CCSS”) in
English language arts and mathematics, as well as the development of
common assessments based on those standards,” added Talbert, former
General Counsel of the Department.
Through its Race to
the Top Assessment Program, the authors explain how the Department has
awarded $362 million to consortia to develop common assessments and
measure student achievement. Two consortia have won a total of $330
million, and each has been awarded an additional $15.9 million
supplemental grant to “help” states move to common standards and
assessments.
“There
is no constitutional or statutory basis for national standards,
national assessments, or national curricula,” said Bill Evers, research
fellow at Stanford University’s Hoover Institution and Koret Task Force
on K-12 Education member. “The
two testing consortia funded by the U.S. Department of Education have
already expanded their activities well beyond the limits of the law. As
this paper recommends, the actions of the Department warrant
congressional hearings.”
One of the consortia
has stated directly that it intends to use these federal funds to
support curriculum materials and that it expects to use the money to
create a “model curriculum” and instructional materials “aligned with
the CCSS” pushed by the Race to the Top Fund. Secretary Arne Duncan has
said that the work of the two consortia includes “developing curriculum
frameworks” and “instructional modules.”
“Frankly, this makes
sense,” said Eitel. “How can one design assessments without taking into
account what is taught? But the legal concern is that these federally
funded assessments will ultimately direct the course of elementary and
secondary course content across the nation,” Eitel added. “This raises a
fundamental question of whether the Department is exceeding its
statutory boundaries,” Talbert said.
“Proponents
of national standards, curriculum and tests claim they’re merely a
logical extension of previous federal education initiatives,” said
Pioneer Institute Executive Director Jim Stergios. “The key difference
is that prior to Race to the Top and the recently announced federal
waivers, the US Department of Education abided by statutes explicitly
prohibiting federal direction, supervision, or control of curricula or
instruction.”
The authors also
explore how the Department’s NCLB conditional waiver program, announced
last September, is driving the states toward a national K-12 curriculum
and course content. To obtain a waiver from the Department, each state
must declare whether it has “adopted college- and career-ready
standards” in reading/language arts and mathematics “that are common to a
significant number of States.” States seeking waivers must also
declare whether they are participating “in one of two State consortia
that received a grant under the Race to the Top competition.” The
Common Core State Standards and the assessments consortia are
effectively the only ones that fit these descriptions.
“Our greatest concern
arises from the Department’s decision to cement the use of the Common
Core State Standards and assessment consortia through conditional
waivers,” said Eitel. “The waiver authority granted by Congress in No
Child Left Behind does not permit the Secretary to gut NCLB wholesale
and impose these conditions,” added Talbert. “As shown by the eleven
states that have already applied for waivers, most states will accept
the Common Core State Standards and the assessment conditions in order
to get waivers,” Talbert stated.
States need not apply
for waivers, the authors said, but most states are desperate enough to
escape No Child Left Behind to agree to the conditions. “And once a
state receives a waiver, escapes NCLB’s strict accountability
requirements, and makes the heavy investments required by the standards,
that state will do whatever it takes to keep its coveted waiver,” said
Eitel. In the view of the authors, these efforts will necessarily
result in a de facto national curriculum and instructional materials
effectively supervised, directed, or controlled by the Department
through the NCLB waiver process.
In their analysis,
Eitel and Talbert propose several recommendations, including the
enactment of legislation clarifying that the Department cannot impose
conditions under its waiver authority, as well as congressional hearings
on Race to the Top and waivers to ascertain the Department’s compliance
with federal law.
Pioneer
Institute led a campaign in 2010 to oppose the adoption of national
standards, producing a four-part series reviewing evolving drafts. The reports compared them
with existing Massachusetts and California standards, and found that
the federal versions contained weaker content in both ELA and math. The
reports, listed below, were authored by curriculum experts R. James Milgram, emeritus professor of mathematics at Stanford University; Sandra Stotsky, former Massachusetts Board of Education member and University of Arkansas Professor; and Ze’ev Wurman, a Silicon Valley executive who helped develop California's education standards and assessments.
· Why Race to the Middle: First-Class State Standards Are Better than Third Class National Standards
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Pioneer Institute
is an independent, non-partisan, privately funded research organization
that seeks to improve the quality of life in Massachusetts through
civic discourse and intellectually rigorous, data-driven public policy
solutions based on free market principles, individual liberty and
responsibility, and the ideal of effective, limited and accountable
government.
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