the powers not delegated
Does Arne Duncan need a refresher course on The Constitution?

This 2012 article from the Federalist Society on Common Core Standards, Race to the Top and the Conditional Waivers needs to be sent to all state legislators as they are deciding if they should institute legislation to eradicate Common Core from their states.  From The Road to a National Curriculum: The Legal Aspects of the Common Core Standards, Race to the Top, and Conditional Waivers:

Note from the Editor: 

This paper examines the U.S. Department of Education’s administration of the Race to the Top Fund, Race to the Top Assessment Program, and other programs. As always, The Federalist Society takes no position on particular legal or public policy initiatives. Any expressions of opinion are those of the author. The Federalist Society seeks to foster further discussion and debate about the Department’s regulations. To this end, we offer links below to different sides of this issue and invite responses from our audience. To join the debate, you can e-mail us at

The paper gives a thorough history of Race to the Top and the remaking of the political educational structure from the adoption/implementation of Common Core standards:

Through the Race to the Top Assessment Program, the Department displaces state assessment autonomy with new common assessments for all states in the consortia, directed and influenced by $362 million in federal funds and program requirements.96 As the Secretary stated, “[t]he Common Core standards developed by the states, coupled with the new generation of assessments, will help put an end to the insidious practice of establishing 50 different goalposts for educational success.”


The “insidious practice” of establishing state goals is a power states have exercised that the Secretary of Education now finds troubling.  Secretary Duncan might want to review the power of the states vs the Federal Government’s assumed power:

I. Limitations Imposed on the Department by Congress

Historically, legislative prohibitions on federal direction, control, or supervision of curricula, programs of instruction, and instructional materials have limited the influence of the federal government in the elementary and secondary school arena.

In addition to the direct language limiting the Secretary’s and officers’ authority in curriculum, Congress included clear statements in the law that the creation of a new Department of Education does not displace the role of state and local governments in education. Primary authority for education continues with state and local governments, as evidenced by Finding 4 of the DEOA: “[I]n our Federal system, the primary public responsibility for education is reserved respectively to the States and the local school systems and other instrumentalities of the States.”17 In addition, when it created the Department, Congress reaffirmed the limitations placed upon federal involvement in education:

It is the intention of the Congress in the establishment of the Department to protect the rights of State and local governments and public and private educational institutions in the areas of educational policies and administration of programs and to strengthen and improve control of such governments and institutions over their own educational programs and policies. The establishment of the Department of Education shall not increase the authority of the Federal Government over education or diminish the responsibility for education which is reserved to the States and the local school systems and other instrumentalities of the States.18

The legislative history of the DEOA confirms the primary role of state and local governments in education. In testimony before the Senate Governmental Affairs Committee, Mary Berry, the Assistant Secretary for Education of the Department of Health, Education, and Welfare, warned that the federal presence in education “has and must continue to be a secondary role—one that assists, not one that directs local and State governments, which have historically shouldered the primary responsibility for . . . public education.”19 In like manner, Senator David Durenberger stressed the importance of Congressional oversight so as to preserve the diversity of state and local approaches to education:

The States have a rich mixture of programs to respond to their citizens’ educational needs. A centralized approach to education would be fatal to this diversity . . . If Congress does not exercise proper oversight, State and local jurisdiction over education will be threatened by the federal government regardless of whether education is in a new department or remains a division of an existing department.20

Members of the U.S. House of Representatives also expressed reservations. Representative Leo J. Ryan described the enabling legislation as “the worst bill I have seen . . . . It is a massive shift in the emphasis by the Federal Government from supporting the local efforts of school districts and State departments of education to establishing and implementing a national policy in the education of our children.”21 One can find a strong statement of concern in the Dissenting Views of Representatives John N. Erlenborn, John W. Wydler, Clarence J. Brown, Paul N. McCloskey, Jr., Dan Quayle, Robert S. Walker, Arlan Stangeland, and John E. (Jack) Cunningham: “[T]his reorganization . . . will result in the domination of education by the Federal Government . . . . [The legislation is] a major redirection of education policymaking in the guise of an administrative reorganization—a signal of the intention of the Federal government to exercise an ever-expanding and deepening role in educational decision-making.”22 These members concluded by raising the possibility of the Department becoming a national school board: “If we create this Department, more educational [decision-making] as to course content, textbook content, and curriculum will be made in Washington at the expense of local diversity. The tentacles will be stronger and reach further. The Department of Education will end up being the Nation’s super [school board].”23 With these criticisms in the record, the Department opened its doors on May 4, 1980.

Common Core proponents claim that the standards are rigorous, higher and will produce career and college ready students, but they provide no research to support these claims:

Critics vigorously dispute the rigor of the Common Core standards and contend that they will not produce better results among students.43 Recent testimony by Professor Jay P. Greene in the U.S. House of Representatives before the Subcommittee on Early Childhood, Elementary, and Secondary Education illustrates this criticism:

[T]here is no evidence that the Common Core standards are rigorous or will help produce better results. The only evidence in support of Common Core consists of projects funded directly or indirectly by the Gates Foundation in which panels of selected experts are asked to offer their opinion on the quality of Common Core standards. Not surprisingly, panels organized by the backers of Common Core believe that Common Core is good. This is not research; this is just advocates of Common Core re-stating their support. The few independent evaluations of Common Core that exist suggest that its standards are mediocre and represent little change from what most states already have.44

Many superintendents, State Education Commissioners and State Board members insist that CCSS are just standards and will not drive curriculum.  The author offers a different viewpoint:

Further, other remarks from the Secretary underscore the far-reaching impact that the assessment consortia will have on curricula and instructional materials:

And both consortia will help their member states provide the tools and professional development needed to assist teachers’ transitions to the new assessments. PARCC, for example, will be developing curriculum frameworks and ways to share great lesson plans. The SMARTER Balanced Assessment coalition will develop instructional modules . . . to support teachers in understanding and using assessment results.98

Describing the work of PARCC and SBAC to include “developing curriculum frameworks” and “instructional modules,”99 the senior leadership of the Department clearly understands that the assessment consortia will drive curriculum and instruction.

In its November 22, 2011, webinar entitled Model Content Frameworks for ELA/Literacy, PARCC goes a step further, suggesting possible uses of model content frameworks to “[h]elp inform curriculum, instruction, and assessment” as member states transition to the CCSS.109 Through its use of federal funding, PARCC also provides direct “Guidance for Curriculum Developers” to “us[e] the module chart with the standards to sketch out potential model instructional unit plans,” and to “recogniz[e] the shifts in the standards from grade to grade and us[e] these shifts as grade-level curricula are developed and as materials are purchased to align with the curricula.”110

As with PARCC, SBAC received a supplemental award of $15.9 million to “help” states move to common standards and assessments.111 SBAC notes that it will use the extra federal funding “to carry out activities that support its member states as they begin to implement the Common Core State Standards, including . . . curriculum materials . . . .”112 In its Supplemental Funding Scope Overview Table dated January 16, 2011, SBAC directly mentions the use of federal funds to support curriculum materials, as well as a digital library.113 Under the supplemental award, SBAC intends to allocate federal funds—

• “to develop curriculum materials, identify which efforts are aligned to the SBAC learning progressions, and define key approaches to teaching and learning”114

• “[to] contract[] with professional organizations, universities, and non-profit groups . . . to adapt their curriculum materials to SBAC specifications to upload to the digital library”115

• “[to upload] SBAC-approved curriculum materials . . . to the digital library.”116

Additionally, with these federal funds, SBAC expects to create a “model curriculum” and instructional materials “aligned with the CCSS.”117 SBAC will also require its member states to implement systematically the CCSS by fully integrating assessment with curriculum and instruction.118

Through these awards, which use assessments to link the Common Core standards of CCSSI with the development of curricula and instructional materials, PARCC and SBAC (as grantees of the Department) enable the Department to do indirectly that which federal law forbids. The assessment systems that PARCC and SBAC develop and leverage with federal funds, together with their hands-on assistance in implementing the CCSS in substantially all the states, will direct large swaths of state K-12 curricula, programs of instruction, and instructional materials, as well as heavily influence the remainder.

The following paragraph would be good to memorize and tell your superintendents, state legislators and boards of education:

VI. Conclusions and Recommendations

Joseph A. Califano, Jr., former Secretary of Health, Education, and Welfare once wrote, “In its most extreme form, national control of curriculum is a form of national control of ideas.”142 Unfortunately, in three short years, the present Administration has placed the nation on the road to a national curriculum. By leveraging funds through its Race to the Top Fund and the Race to the Top Assessment Program, the Department has accelerated the implementation of common standards in English language arts and mathematics and the development of common assessments based on those standards. By PARCC’s and SBAC’s admission, these standards and assessments will create content for state K-12 curriculum and instructional materials. The Department has simply paid others to do that which it is forbidden to do. This tactic should not inoculate the Department against the curriculum prohibitions imposed by Congress.

Read the entire article here.



Gretchen Logue

Share and Enjoy !

0 0