A new white paper raises questions about whether the U.S. Department of Education has violated prohibitions against a federally dictated curriculum in its work to support common standards and assessments across states. It also outlines steps to address the situation, including a call for congressional hearings and new legislation to explicitly prohibit "conditional waivers" under the Elementary and Secondary Education Act (a.k.a. the No Child Left Behind Act).
The report from the Pioneer Institute, a free-market think tank that has been critical of the common standards, suggests that the Education Department is moving on "the road to a national curriculum," despite provisions across several federal laws to prohibit such intervention.
"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," coauthor Robert S. Eitel, a former deputy general counsel of education under President George W. Bush, said in a press release.
The paper's other two coauthors are Kent D. Talbert, who was general counsel at the Education Department from 2006-09, and Williamson M. Evers, a research fellow at the Hoover Institution at Stanford University.
The Pioneer Institute report says that provisions in several federal laws banwith only minor exceptions"federal departments and agencies from directing, supervising, or controlling elementary and secondary school curriculum, programs of instruction, and instructional materials." The paper cites such provisions in the ESEA, as well as the General Education Provisions Act and the Department of Education Organization Act.
The report says the Obama administration has used the federal Race to the Top Fund, as well as the Race to the Top Assessment Program, to pressure states to adopt standards and assessments that are substantially the same across nearly all states. It notes that Secretary of Education Arne Duncan has said the work of the testing consortia includes "developing curriculum frameworks" and "instructional modules."
"Frankly, this makes sense," said Eitel in the press release. "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."
The report also said the conditional waiver initiative launched by the Obama administration to give states greater flexibility from accountability provisions under the ESEA is "driving the states toward a national K-12 curriculum and course content." (Just today, the administration announced that 10 states had been granted such waivers.)
The issue with waivers is a bit complicated. As my co-blogger Catherine Gewertz explained in a recent story, states seeking ESEA waivers must meet several conditions, including showing that they have rigorous academic standards, a solid plan to transform standards into good instruction, and tests that ensure students are ready for college or good jobs. They can meet the standards requirement by adopting the Common Core State Standards, which all but four states have done.
They can meet the testing requirements by belonging to a multi-state consortium that is designing common tests for those standards. All but five states are participating in those projects. Alternatively, states can demonstrate high standards by having their higher education systems certify that students who master them can skip remedial college courses. They can meet the testing requirement by presenting a plan to design high-quality assessments, or by submitting their current tests to the federal Education Department for peer review.
The Pioneer Institute report contends that the ESEA waiver conditions "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 Education Department has not yet responded to an email I sent this morning seeking comment on the report, but Secretary Duncan touched on the larger issue last spring in a speech.
"We have not and will not prescribe a national curriculum," Duncan said. "I want to repeat that."
To be sure, the federal government's role in promoting common standards and assessments has long been a point of contention in some education and political circles. See blog posts here and here for a quick taste. And, indeed, the same issue came up in the early days of the No Child Left Behind Act, with the federal Reading First program, as EdWeek reported back in 2003.
The Pioneer Institute led a campaign in 2010 to oppose adoption of the common standards, arguing that they contained weaker content in both mathematics and English language arts than existing state standards in Massachusetts and California.
The new white paper outlines a number of steps to address the concerns it highlights about the Education Department's actions. For one, it says Congress should "immediately pass" legislation clarifying that the Education Department cannot impose conditions in granting waivers to states under the Elementary and Secondary Education Act. It also urges lawmakers to hold hearings on the agency's implementation of the Race to the Top Fund, the Race to the Top Assessment Program, and the plans for conditional ESEA waivers to "ascertain the department's compliance" with several federal laws. Those include the ESEA, the GEPA, and the DEOA.
Further, it says Congress should "review the curriculum and related prohibitions in GEPA, the DEOA, and the ESEA to determine whether legislation should be introduced to strengthen the ban on federal involvement in elementary and secondary curriculum, programs of instruction, and instructional materials."