U.S. Dept. of Ed. is Breaking the Law

It is now clear, according to the U.S. Department of Education’s own description, that the Department is in violation of the law by which it was created.

Our criticism of the nationalization of standards, curriculum, and assessments elicited the following statement from Peter Cunningham, spokesperson for the U.S. Department of Education: “Just for the record: we are for high standards, not national standards and we are for a well-rounded curriculum, not a national curriculum. There is a big difference 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.”

Let’s leave aside the double-speak of how incentivizing is somehow different from mandating.  Instead, let’s focus on his admission that the Department is “funding development of curriculum” and is “using incentives to advance our agenda.”

The 1979 law by which the U.S. Department of Education is authorized in its current form clearly prohibits these activities.  It states (in section 103b): “No provision of a program administered by the Secretary or by any other officer of the Department shall be construed to authorize the Secretary or any such officer to exercise any direction, supervision, or control over the curriculum, program of instruction, administration, or personnel of any educational institution, school, or school system, over any accrediting agency or association, or over the selection or content of library resources, textbooks, or other instructional materials by any educational institution or school system, except to the extent authorized by law.” (emphasis added)

So, the spokesperson for the U.S. Department of Education says that they are funding development of curriculum, but the Department is expressly not authorized to direct, supervise, or control curriculum.  They are are also prohibited from directing, supervising, or controlling textbooks or other instructional materials.

The Department seems to think that it is on solid footing as long as it does not mandate or control curriculum.  But the 1979 law restricts the Department more broadly.  It may not even direct or supervise curriculum.  I have no idea how the Department could fund the development of curriculum without also exercising some direction and supervision over that curriculum.

Nor can the Department justify its current activities by claiming that they are only funding the development of curricular frameworks and instructional materials.  The Department is also explicitly prohibited from directing, supervising, or controlling the content of instructional materials.

As far as I know, no law has specifically authorized the Department to engage in these activities from which they are otherwise prohibited.

I think they have been caught red-handed.

(edited for clarity)

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21 Responses to U.S. Dept. of Ed. is Breaking the Law

  1. Greg Forster says:

    Show’s over folks. Nothing more to see. Move along.

    • concerned says:

      Greg,
      You wrote, “The Department of Education is forbidden by law from developing a national curriculum. This reflects the clear judgment of the people and their congressional representatives, expressed forcefully on all the previous occasions when this issue has come up, against handing over control of education to a single national body.”

      So where can we go from here? How do we make the general public aware of what is going on? How they are losing their rights with Common Core? If there is an initiative set-up to publicize this on the LOUD SPEAKER – please let us know. I would be thrilled to donate.

      The topic seems to rarely come up, but when it does, there are two distinct reactions: OUTRAGE at the federal overrun OR APATHY, as in it’s a done deal – there’s nothing we can do about it.

      BUT NEVER SUPPORT!

      What can we do to ensure the legislature truely closes this show down?

      • Greg Forster says:

        That’s what the manifesto is all about. Sign it, if you haven’t already! After that – well, I’d advise you to start calling congressional education staffers to make sure they know about this, but given all the publicity we’ve gotten with this manifesto, I strongly suspect they already do. :)

  2. [...] A 1979 law seems to challenge the USDOE’s ability to direct curriculum and textbooks. (Jay Greene) [...]

  3. [...] A 1979 law seems to challenge the USDOE’s ability to direct curriculum and textbooks. (Jay Greene) [...]

  4. Stuart Buck says:

    Note that “personnel” is listed too — can DOE say anything about using value-added models, reforming tenure, etc.?

  5. Greg Forster says:

    No control (or direction or supervision) over personnel is not the same as no control (etc.) over personnel policy. Obviously they intersect to some extent, but it seems clear the intent of the law is to prevent the department from telling schools which individual people to hire or fire, or from exercising direct operational control over them while on the job.

    Moreover, saying things about value added, tenure reform, etc. is not the same as exercising control, direction or supervision over them.

    I’m as interested as you are in restoring the original limits imposed by this law, but if we want to go beyond what this law actually contains we’ll need a new law.

  6. Pat Murray says:

    Can you provide a link to sign the Manifesto?

  7. grumpyelder says:

    The Administration dangled a few dollars and the state legislatures went after it like flies do rotting garbage..

    Effectively they surrendered the Tenth Amendment to the Dept of Education, did they waiver away the laws that were designed to protect local educational control in the process?

  8. In many cases the adoption of Common Core standards was made by the state school board or commissioner without legislative action.

    And whatever states do they cannot authorize the U.S Dept of Ed to direct, supervise, or control curriculum or instructional materials. Only the U.S. Congress can do that and they haven’t. In fact, Congress explicitly prohibited the US DOE from doing those things.

    • Greg Forster says:

      Please note that this argument (U.S. law precludes states from authorizing USED from directing, supervising or controlling their curricular or instructional materials) demonstrates that we are not arguing against USED takeover in the name of “states’ rights.” Quite the contrary, just as individual rights are “inalienable” such that people cannot legitimately be ruled by a tyrannical king even by their own consent, we deny that under the federal system as it now stands, states can voluntarily submit to a USED curricular regime. The Stephen Douglas “squatter sovereignty” approach to states’ rights would permit states to sign up for USED control if they wanted to; we say states don’t have the “right” to disrupt the federalist system in that way. Rather than “states’ rights,” we are seeking to maintain the system of dynamic and interlocking checks and balances between state and national authority.

      • grumpyelder says:

        I tend to disagree, the Federal Government routinely expands it’s authority through the use of bribe money.

        For the last 50 years the shift in that dynamic has been in favor of the Fed, and it’s been done more through regulation than legislation.

        As soon as a state accepts Federal Money they become subject to whatever conditions the government puts on it.. A simple example was tying a national drinking age to highway funding

    • concerned says:

      Do you have a list of which states sign-on to Common Core through legislative action?

      And if they didn’t, didn’t it happen PRIOR to the proposed MAJOR “game-changer” of tying Title I to Common Core?

      • Sorry, concerned, I don’t have that list. In the states where state boards or commissioners made the decision I would assume that they had that power delegated to them by the legislature or the state constitution.

  9. [...] that it will put an end to local control over education. On his own, Greene goes even further and declares that the efforts by the U.S. Department of Education to push acceptance of Common Core standards [...]

    • grumpyelder says:

      In order to have Common Core Standards and National Standardized testing, you are forced to have a curriculum that matches are you not?

      North Carolina mandates the teaching of Intellegent Desgin, California Gay History.. Most states probably believe a teachers time is better spent on other things… If this goes through, depending of the whim of a given administion, either one could find its way into National Standards..Local Boards would have no choice

  10. [...] Greene has in important blog post that the U.S. Dept. of Ed. is Breaking the Law: It is now clear, according to the U.S. Department of Education’s own description, that the [...]

  11. [...] focus of the debate over a national curriculum has shifted to the illegality of the federal government extorting states to homogenize their standards and paying for national [...]

  12. [...] U.S. Dept. of Ed. is Breaking the Law « Jay P. Greene’s Blog [...]

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