Education Department Overstepping Federal Law?

Issue Brief

Empire-building aspirations by officials in charge of federal programs are nothing new. But the Obama Administration officials running the U.S. Department of Education are taking this time-honored practice to new levels, and in doing so appear to be crossing explicit lines laid out in statute that should cause observers to take notice.

Last week, Department spokesman Peter Cunningham explained that his agency did not support either national standards or a national curriculum. “There is a big difference,” he noted, “between funding development of curriculum – which is something we have always done – and mandating a national curriculum – which is something we have never done. And yes – we believe in using incentives to advance our agenda.”

But Jay Greene, prolific school reform researcher at the University of Arkansas, was quick to point out that Cunningham’s acknowledgement ran directly at odds with federal law. The 1979 legislation which created the federal Department, 20 USC 3403, states directly that no agency official possesses authority “to exercise any direction, supervision, or control over the curriculum, program of instruction… or over the selection or content of…textbooks, or other instructional materials by any educational institution or school system, except [as] authorized by law.”

At the center of the building controversy are the Department’s regulations for Education Secretary Arne Duncan’s signature Race to the Top grant competition, which required states to adopt the Common Core State Standards for academic content, and commit to joining a consortium of states developing and implementing common assessments aligned with these K-12 standards. An additional, controversial requirement permitted states to supplement these with additional standards, “provided that the additional standards do not exceed 15 percent” of their total.

Greene was among the authors and signers of a manifesto, published last week, challenging the Department’s activism promoting a national curriculum and national assessments based on national standards. The manifesto challenged the legal basis, evidence supporting, and adequacy of the proposed national standards.

The $4.35 billion Race to the Top Fund represents an unprecedented federal investment in elementary and secondary education. At a time when state and local decisionmakers are feeling acute strains on their education budgets, the federal influence of the program is vast – circumstances which should place added scrutiny on the Department’s adherence to existing laws defining its conduct. These laws further stipulate that the federal Department, “shall not increase the authority of the Federal Government over education or diminish the responsibility for education which is reserved to the states and the local school systems.”

To be clear, subsequent federal legislation authorizing these competitive grant programs makes no mention of the standards, teacher or principal evaluations, or other central program components or regulations. Yet the program regulations, which also establish new definitions for effective principals and teachers, seem designed to further advance Departmental authority intrinsically in these important areas.