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Was Race to the Top Authorized?

Grover J. "Russ" Whitehurst, the former director of the Institute of Education Sciences, argues in this Education Week commentary that the Obama administration's signature education policy program, the $4 billion Race to the Top competition, was not authorized by Congress.

As a reporter who covered the development of the American Recovery and Reinvestment Act very closely, I found his commentary thoughtful but, ultimately, I disagree with his conclusion that the program wasn't authorized.

In making his argument, Whitehurst takes a look at the actual language in the American Recovery and Reinvestment Act. The bill says, in a nutshell, that the fund will be used to reward states that make progress on the four "assurances" spelled out in the law. Those include teacher quality and distribution, turning around low-performing schools, standards and assessments, and state data systems.

Whitehurst notes that there isn't anything about charter schools or even common standards in the ARRA. And he's absolutely right on that score.

But that doesn't mean the program wasn't authorized. In fact, as Whitehurst himself says, Congress gave Duncan very broad discretion to define exactly what it would mean for states to meet those assurances. For instance, the department has decided that improving teacher effectiveness and distribution means looking at evaluations, tenure, and performance pay. Could it have instead emphasized teacher residencies or asked states to consider reducing class size if it thought that was the way to go? Yes—it was up to the department to figure out what particular policies would fit the bill.

And, if that wasn't latitude enough, the law also says states can be judged on the assurances, as defined by the department, but also "such other criteria as the secretary determines appropriate." That phrase is the legislative equivalent of blank check. Does that language make it OK for Duncan & Co. to look at charter laws or common standards in deciding who gets grants? Sure does.They've obviously deemed those criteria appropriate.

Capitol Hill veterans knew at the time the stimulus law passed that Congress was handing over unprecedented authority to Duncan and his new team. In fact, the pot of money that eventually became Race to the Top was alternately known, inside the Beltway, as "The Duncan Fund" and "Arne's Slush Fund." (At one point, it was slated for up to $15 billion.)

Before the measure passed, David Cleary, a top aide to Sen. Lamar Alexander, R-Tenn., said, "I didn't realize how much we liked Arne Duncan until we gave him $15 billion to play with." And Jack Jennings, a longtime aide to House Democrats, told me the legislation was moving too quickly for Congress to put its own stamp on the program that eventually became Race to the Top, and that "the action would be with the Department of Education."

When I sat down for my very first interview with Secretary Duncan, he sketched out how he wanted to use that discretionary money, which at the time was slated to be up to $15 billion. This was before Congress ever passed the bill.

Here's a line from my story:

When asked, Mr. Duncan indicated he may consider using the incentive money as part of a push for national or other more-uniform standards.

"Sure, absolutely," he answered. "We want to reward rigor and challenge the status quo."

It's true that Race to the Top has some odd legislative roots. It's a huge program by U.S. Department of Education standards, and it was created with very little direction from Congress, which usually has a lot to say about how every federal dollar—particularly for a competitive grant program—gets spent.

Why did this happen? Well, the unusual policy grew out of unusual circumstances, political and otherwise. At the time that Congress authorized Race to the Top—called "Incentive Grants" in the stimulus law—the $5 billion price tag was a tiny footnote in a very, very big bill designed to spur the sputtering economy. Lawmakers had much bigger fish to fry at the time, like whether the nation actually needed to spend $787 billion to spur the economy. And they had a quick deadline for passing the stimulus law.

Also, Democrats, who controlled Congress and crafted the stimulus, were reluctant to challenge the brand-new, very popular president and his secretary of education. Did every lawmaker who voted for (or opposed) the stimulus carefully think through the long-term policy implications of handing over an unprecedented amount of discretionary money to an education secretary they hadn't even seen in action? Probably not. Do some of them seem to be regretting their vote now, or at least wishing they'd added more strings to the money? Absolutely.

But is the Duncan Decides It All Approach what Congress signed for, or authorized? Yup, sure seems to be.

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