U.S. Dept. of Ed. is Breaking the Law

By 05/13/2011

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It is now clear, according to the U.S. Department of Education’s own description, that the Department is in violation of the law by which it was created.

Our criticism of the nationalization of standards, curriculum, and assessments elicited the following statement from Peter Cunningham, spokesperson for the U.S. Department of Education: “Just for the record: we are for high standards, not national standards and we are for a well-rounded curriculum, not a national curriculum. There is a big difference between funding development of curriculum—which is something we have always done—and mandating a national curriculum—which is something we have never done. And yes—we believe in using incentives to advance our agenda.”

Let’s leave aside the double-speak of how incentivizing is somehow different from mandating.  Instead, let’s focus on his admission that the Department is “funding development of curriculum” and is “using incentives to advance our agenda.”

The 1979 law by which the U.S. Department of Education is authorized in its current form clearly prohibits these activities.  It states (in section 103b): “No provision of a program administered by the Secretary or by any other officer of the Department shall be construed to authorize the Secretary or any such officer to exercise any direction, supervision, or control over the curriculum, program of instruction, administration, or personnel of any educational institution, school, or school system, over any accrediting agency or association, or over the selection or content of library resources, textbooks, or other instructional materials by any educational institution or school system, except to the extent authorized by law.” (emphasis added)

So, the spokesperson for the U.S. Department of Education says that they are funding development of curriculum, but the Department is expressly not authorized to direct, supervise, or control curriculum.  They are are also prohibited from directing, supervising, or controlling textbooks or other instructional materials.

The Department seems to think that it is on solid footing as long as it does not mandate or control curriculum.  But the 1979 law restricts the Department more broadly.  It may not even direct or supervise curriculum.  I have no idea how the Department could fund the development of curriculum without also exercising some direction and supervision over that curriculum.

Nor can the Department justify its current activities by claiming that they are only funding the development of curricular frameworks and instructional materials.  The Department is also explicitly prohibited from directing, supervising, or controlling the content of instructional materials.

As far as I know, no law has specifically authorized the Department to engage in these activities from which they are otherwise prohibited.

I think they have been caught red-handed.

-Jay P. Greene

Comment on this article
  • Beatrice Davis Fowler says:

    Dr. Green is on point! The federal department of education has overstepped its authority by ;authorizing national education standards, national curriculum and national assessments.
    Question: how did this enlargement of federal authority happen? How did the Federal Department of Education get past the people’s elected representatives? And, last but not least, who benefits?
    Beatrice Davis Fowler co: author
    Exposing the Public Education System

  • Peter Meyer says:


    Don’t you have to wonder, though, the repercussions of a Department of Education that is barred from concerning itself with the most important part of education? I would suggest that the money it is spending on “other things,” has probably caused great distortion in the nation’s school system. Instead of hanging them on a petard that was not of their making, why not get them out of the social services business and let them actually spend money on educational matters — like curriculum development?


    –peter m.

  • Jay P. Greene says:

    So, Peter, it sounds like we are agreed that the U.S. Department of Education violated the law when it issued contracts to the two testing consortia totaling about $360 million to develop curriculum (or curricular frameworks) and instructional materials.

    You think they broke the law but the law should be changed because you favor a national curriculum involving the direction, supervision, or control of the U.S. Dept of Ed. I oppose changing the law because I agree with the authors of the 1979 law that the federal government is not well-situated to act as a national school board, working on curriculum, instructional materials, etc…

    But whether we favor changing the law or not, we can all agree that the U.S. Dept of Ed cannot simply ignore the law and exceed its authorization. Those contracts (or at least the portions involving curriculum and instructional materials) have to be rescinded. Right?

  • Peter Meyer says:


    I’m not taking the bait on that. Seriously, it’s a significant enough “charge” that it deserves far better attention than I could give to it here… I was just trying to raise what I consider a more important policy question, which is whether our obsessive worry about state control hasn’t, in fact, neutered ED in precisely the area that we might want it to contribute (curriculum); and, further, that by using its fairly sizeable influence (vis the enormous influence that a lousy $4.5 billion in RTTT has had) on relatively peripheral things, has in fact created unintended (and deletorious?) distortions in the system. One could argue that ED was set up to fail.

  • Joe says:

    “…except to the extent authorized by law.”

    Did you just skip that part?

  • Joe says:

    Re: my earlier comment:

    That section of the law reads to me as if it means the Secretary of Education is specifically prohibited from calling up a librarian in Tulsa, OK and telling her to take all of the Harry Potter books off the shelves, or the like. The wording of the law says “No provision … shall be construed to authorize *the Secretary or any such officer* to exercise any direction, supervision, or control…” It refers to the personal power of the Secretary and the other officers of the Education Department, not to the mission of the Department as a whole.

  • Jay P. Greene says:

    Joe —

    I didn’t skip the part about “except to the extent authorized by law.” I wrote: “As far as I know, no law has specifically authorized the Department to engage in these activities from which they are otherwise prohibited.”

    And your reading of the law as applying to the Secretary and officers but not the Department sounds very creative. But when Department officials are called to testify to Congress on this issue, as I suspect they will, I wouldn’t recommend that they repeat your theory. Members of Congress, unlike teachers, don’t give points for creativity.

  • Jim says:

    You say “Let’s leave aside the double-speak of how incentivizing is somehow different from mandating”, but “incentivizing” vs. “mandating” seems to be the crux of the matter. Isn’t “incentivizing” the key lever that the federal government uses, now that federal spending is 25% of GNP and reaching into every corner of our lives? The feds don’t have to “mandate”, when they can just withhold funds from their growing honeypot. (We’ve seen this with the Dept. of Transportation. Any state can keep their drinking age at 18 if they wish. They just lose all of the highway funds that their residents paid in federal gas taxes.) The whole Common Core initiative is being advanced by dangling federal funding carrots. (And enthusiasm for it may wane, as soon as the temporary funding does…) I suspect that we will find that we can ignore any of the federal guidelines on curriculum that we wish, if we don’t mind losing federal funding. So where is the big headline? How are their plans for curriculum different from their other initiatives to remake education? The cure isn’t to sue the DoEd on the interpretation of its mandate. The cure is to have fewer — ideally no — dollars flowing through the DoEd in the first place. Mandates aren’t necessary. They can create enough mischief just “incentivizing” local educators with those funds.

  • Lisa Jones says:


    “a more important policy question, which is whether our obsessive worry about state control…”

    What the heck is happening to America?

  • […] and funding of national standards and curriculum by the Obama Administration appears to be “according to the U.S. Department of Education’s own description…in violation of the law b…,” as Jay P. Greene recently […]

  • Ram0n says:

    The Department of Education is in itself a violation of the Constitution in that any powers not specifically delineated or given to the Federal government remains within the power of the states. Last time I read the Constitution, education was not mentioned as being the responsibility of the Federal Government. Maybe now that the DOE has chosen to violate the law Americans will awaken to the camel’s nose under the tent and kick it out!

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