The Road to a National Curriculum: The Legal Aspects of the Common Core Standards, Race to the Top, and Conditional Waivers
This report brought to you by the Pioneer Institute as a White Paper, asserts that the Elementary and Secondary School Act of 1965 (“ESEA”), which President Johnson signed, increased the federal government’s role in elementary and secondary education began to increase rapidly, with Congress establishing the U.S. Department of Education (“Department”) in 1979.
Today, the ESEA authorizes funding for key portions of school district budgets across the country. Despite this leverage, the Department has generally adhered to statutory limitations disallowing federal agency involvement in K-12 curriculum, courses, or instruction, focusing instead on issues such as aid for disadvantaged students, accountability, civil rights, and evaluation. Since 2009, this has changed: Actions taken by the Obama Administration signal an important policy shift in the nation’s education policy, with the Department placing the nation on the road to federal direction over elementary and secondary school curriculum and instruction. Actions taken by the Obama Administration signal an important policy shift in the nation’s education policy, with the Department placing the nation on the road to federal direction over elementary and secondary school curriculum and instruction. 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.
The ESEA also protects state prerogatives on Title I content and achievement standards. At the direction of the present Administration, however, the Department has begun to slight these statutory constraints. Since 2009, through three major initiatives—the Race to the Top Fund, the Race to the Top Assessment Program,and conditional NCLB waiver guidance (the “Conditional NCLB Waiver Plan”)—the Department has created a system of discretionary grants and waivers that herds state education authorities into accepting elementary and secondary school standards and assessments favored by the Department. Left unchallenged by Congress, these standards and assessments will ultimately direct the course of elementary and secondary study in most states across the nation, running the risk that states will become little more than administrative agents for a nationalized K-12 program of instruction and raising a fundamental question about whether the Department is exceeding its statutory boundaries. This road to a national curriculum has been winding and highly nuanced—and, as we will see below, full of irony.
Five parts compose this paper.
- Part I analyzes the limitations that GEPA, the DEOA, and the ESEA place on the Department.
- Part II provides background on the rise of the Common Core State Standards Initiative (CCSSI).
- Part III gives an overview of the Race to the Top Fund and illustrates how the Race to the Top Fund has encouraged states to adopt Common Core standards.
- Part IV reviews the components of the two awardees under the Department’s Race to the Top Assessment Program that are working to develop assessments and align them with the Common Core standards. These assessments are critical, as they are designed to link the Common Core standards to a common (that is, national) content for curricula and instructional materials.
- Part V discusses how the Department is using ESEA waiver authority to consolidate the nationalizing effects of the CCSSI and the Partnership for Assessment of Readiness for College and Careers (“PARCC”) and SMARTER Balanced Assessment Consortium (“SBAC”) conclusions and recommendations for policy- makers and interested observers.