As a plaintiff in a lawsuit that challenged the constitutionality of the testing consortia, I pay close attention to law, rule and policy that has to do with student testing. In the latest draft of the Senate’s Every Child Achieves Act (ECAA) there is a section that relates to testing and to the basis of our law suit which claimed that Congress, who has the constitutionally granted right under Article 1, Section 3 Clause 10  to approve interstate consortia, did not grant such approval for the formation of SBAC or the development of their assessment system.  Therefore, no state had the right to enter into such a consortium.

The ECAA, on page 228, appears to place guards around the previous abuses of the USDoED designed to push states into testing consortia. Under GEPA and NCLB they were simply forbidden to create a nationalized test for English or math. This makes it a little clearer that they are to stay out of such a process entirely.

‘‘(d) PROHIBITION.—No funds provided under this section to the Secretary shall be used to mandate, direct, control, incentivize, or make financial awards conditioned upon a State (or a consortium of States) developing any assessment common to a number of States, including testing activities prohibited under section 9529.

That is all well and good, although the USDoED didn’t bother to pay attention to the previous prohibitions and the few tsk tsk letters from the House and Senate were impotent to do anything about the Department’s transgressions.

What is worrisome is language that appears a few pages  later (p. 242) that reads:

S 1177, Sect 1205 b (1)

‘‘(1) IN GENERAL.—The Secretary may provide
19  a State educational agency, or a consortium of State
20  educational agencies, in accordance with paragraph
21  (3), with the authority to establish an innovative as-
22  sessment system.”

 According to this language, Congress could grant approval for an interstate testing consortia to develop an assessment, but the consortia would then have to wait for approval from the Secretary to develop that test. In other words, the will of Congress is now subject to the approval of a bureaucrat. This appears to be a change in Constitutional authority for such approval without an official constitutional change. What happens to such approved consortia when the Secretary does not provide them “with the authority to establish an innovative assessment system?” What is Congress’s power at that point?

This section must be worked out in conference.

  • There is no need for the Secretary to grant approval of such consortia if Congress has already granted its approval.
  • You cannot shift Constitutional authority to a Department without a Constitutional change.
  • There is no need for the Secretary to approve assessments if the goal of the bill is to return authority to the states.

At almost 1,000 pages there is too much in ECAA for any Senator to know everything they are voting for, such as voting away their Constitutionally granted authority. Many thanks to Senator Blunt for voting against it, even if it wasn’t for this reason. Frankly, it would be far safer for our representatives to simply approve block grants of educational money to the states and let them figure out what is best for their students.

Anne Gassel

Anne has been writing on MEW since 2012 and has been a citizen lobbyist on Common Core since 2013. Some day she would like to see a national Hippocratic oath for educators “I will remember that there is an art to teaching as well as science, and that warmth, sympathy and understanding are sometimes more important than policy or what the data say. My first priority is to do no harm to the children entrusted to my temporary care.”

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