It’s a surprise to me to find myself writing in agreement with something coming out of the Pioneer Institute, but their “The Road to a National Curriculum: The Legal Aspects of the Common Core Standards, Race to the Top, and Conditional Waivers” is the first comprehensive piece of scholarship I’ve found that examines the legal nuance of the RtTT effort and compares it to both the letter and the spirit of federal law. The entire white paper (by Robert S. Eitel and Kent D. Talbert with contributions from Williamson M. Evers) is worth a read.
I realize not everyone has the free time to sit and consume a white paper, so I’ll highlight some salient points:
With only minor exceptions, the General Education Provisions Act (“GEPA”), the Department of Education Organization Act (“DEOA”), and the ESEA, as amended by the No Child Left Behind Act of 2001 (“NCLB”), ban federal departments and agencies from directing, supervising, or
controlling elementary and secondary school curriculum, programs of instruction, and instructional materials.
And while RtTT and NCLB waivers don’t explicitly direct, supervise, or control curriculum, programs of instruction, and instructional materials; it’s hard to imagine either isn’t attempting to do so using the levers of financial aid or reprieves from NCLB sanctions.
Eitel, Talbert, and Evers point out:
Thus, rather than permitting state and local authorities to use standards and assessments that uniquely fit a given state as required by the ESEA, the Race to the Top Assessment Program requires each state in the consortium to use common standards across the respective states of the consortium. The result is that the Race to the Top Assessment Program moves states away from standards and assessments unique to a given state and into a new system of common standards and assessments across the consortia states.
Again, this isn’t the expressed purpose of these moves, but it does appear to be the desired effect.
These PARCC and SBAC supplemental funding materials, together with recent actions taken by the Department concerning ESEA waiver
requirements, have placed the agency on a road that will certainly cause it to cross the line of statutory prohibitions against federal direction, supervision or control of curriculum and instructional materials – upsetting the federal system.
With conditions that mimic important elements of Race to the Top’s ingredients, the Conditional NCLB Waiver Plan will result in the Department leveraging the states into a de facto long-term national system of curriculum, programs of instruction, and instructional materials, notwithstanding the absence of legal authority in the ESEA.
The conceit of the argument is that the Department of Ed has implemented these programs and made money available to those who applied. What, specifically, groups like PARCC, SBAC, and CCSSI do with that money after it’s passed on is out of DOE control. If they want to implement a national curriculum, national standards, and national assessments, well bully for them. If each of those pieces happens to be exactly in line with what the DOE would like to see happen but is banned by federal law from doing, all the better.
The result is an education policy SuperPAC that acts in the grey area of the law – aligned with the letter, but in clear opposition of the spirit.
My annotated version of the white paper is here.