In the continuing battle for the minds of America’s children, the U.S. Congress is proceeding toward renewal of the Elementary and Secondary Education Act (ESEA) of 1965. The House passed their version, “Student Success Act, H.R.5” on July 8th, followed by the Senate on July 16th with the “Every Child Achieves Act of 2015, S. 1177.” On November 17th the “Combined commission on Every Child Achieves,” made up of both Democrats and Republicans from the House and Senate, passed a bipartisan resolution to submit to the full Congress to reauthorize the ESEA which would rewrite the “No Child Left Behind (NCLB)” Act signed into legislation in 2001 by President George W. Bush, the last reauthorization of ESEA. Since the ESEA has not been reauthorized since 2001, what is the rush for the “Combined commission,” whose member selection and content of the bill has been questioned by other senators, to get an education bill of such magnitude and importance for all of American’s students passed by Christmas?

Because of differences within each party’s membership, the committee has been delayed until after the Thanksgiving break. As is the case with most laws, special-interest groups pandered to elected representatives and senators as government and lobbyist’s lawyers wordsmithed the markups. Various elements of the law are already in place and the public will be given little if any opportunity to read the proposed law. The details of the ESEA and the education bills proposed by the Senate and House are far too lengthy to attempt to summarize here. However, there are four issues of importance Americans should consider as this bill makes its fast track to approval by the 114th Congress: (1) standardized or mandatory testing, (2) common core, (3) how much all of the reforms will cost, and (4) removing the DoE’s intrusive and often illegal intervention in the management of state’s schools.

NLRB advocates believe that standardized and mandatory testing will promote high standards and establish measurable goals improving education for the individual student. The act requires that states, not DoE, develop assessments in basic skills. However, to receive federal school funding, the states must give these tests to all students in selected grades. At that point, the DoE arbitrarily exercises authority it does not legally have to withhold funding if the recipient state or district is not in line with the DoE agenda. Withholding funding is not an unusual practice for DoE as evidenced by the attempt to withhold Title I funding from Township High School District 211 in Illinois because it wouldn’t allow a transgender biological male student to dress and shower with biological female students.

In 2009 Arne Duncan and President Obama implemented the “Race to the Top (RTTP)” program. The administration spent $4.15 billion taxpayer dollars on RTTP, taken from the “American Recovery and Reinvestment Act of 2009,” to reward innovation and reforms in state and local education. Central to the RTTP was adopting common standards. While the DoE was careful to say it did not require Common Core, if a district wanted a ‘grant’, they implemented Common Core by another name. A close reading of the “Race to the Top Executive Summary” reveals the requirements are arbitrary to the point that any award is subject to decision of DoE bureaucrats. Here are the two requirements for funding from the RTTP Executive Summary, page 4:

A State must meet the following requirements in order to be eligible to receive funds under this program.

(a) The State’s applications for funding under Phase 1 and Phase 2 of the State Fiscal Stabilization Fund program must be approved by the Department prior to the State being awarded a Race to the Top grant.
(b) At the time the State submits its application, there must not be any legal, statutory, or regulatory barriers at the State level to linking data on student achievement (as defined in this notice) or student growth (as defined in this notice) to teachers and principals for the purpose of teacher and principal evaluation.

Part (a) suggests the state’s application for funding must be approved by the DoE before they get the money. But the actual law states:

…the U. S. Department of Education will award governors approximately $48.6 billion by formula under the SFSF program in exchange for a commitment to advance essential education reforms to benefit students from early learning through post-secondary education, including: college- and career- ready standards and high-quality, valid and reliable assessments for all students; development and use of pre-K through post-secondary and career data systems; increasing teacher effectiveness and ensuring an equitable distribution of qualified teachers; and turning around the lowest-performing schools.

The catch, and when dealing with the DoE there always is one, is the wording is arbitrary, allowing the DoE to make deals with governors for some portion of the $48.6 billion of the State Fiscal Stabilization Fund if they commit to the DoE reforms. Of course, the reforms are inferred, not documented, so in the unlikely chance of an investigation there would be no paper trail. The $48.6 billion is not the RTTP money DoE gives to the schools; it is additional money the DoE gives to the governors. There is a further $4.15 billion that is handed out for the RTTP.

Part (b) suggests the state must do nothing to keep the DoE from accessing and linking student’s records for the purpose of evaluating teachers and principals, leaving one to wonder what the evaluation criteria is other than the long list of ‘points’ described in the RTTP Executive Summary, and who exactly does the evaluation and what are the consequences of a negative evaluation. An important point not mentioned is what does the collection of student’s privacy information have to do with teacher evaluation?

In the wake of the Edward Snowden revelations, is it really wise to allow the DoE unrestricted access to student’s school records and personal data? Considering the DoE Office of Inspectors General report on the data intrusions through contractors and the DoE’s failure to implement solutions, is it good policy to allow greater access to children’s personal data?

Under the RTTP, there is no intellectual attainment requirement. It is necessary only to show that districts have earned more points towards satisfying certain educational policies and adopting common standards. The DoE’s National Center For Educational Statistics for 2011/12 shows who got the most money. The District of Columbia received more funding per student than any state or district in the nation; $19,847 per student. Neither the Senate or House proposal recommends RTTP so far, but they do not have to. Obama and Duncan act on their own to fund RTTP.

It’s unknown what the final proposal the ‘Combined Commission’ will contain, but interparty discussion in the Senate by Senators Mike Lee (R-Utah) and  Lamar Alexander (R-Tennessee), raises concerns that the procedure will not be open and transparent and will not represent student and parent interests.

Senator Lee expressed concern that, “...the process expedites the passage of policies that we know don’t work -- policies to which the American people are strongly opposed… This bill also doubles down on the discredited common-core approach to elementary and secondary education that the American people have roundly, and consistently, rejected.” If the bill in fact contains language that perpetuates curriculum control in the form of Common Core, then Senator Lee’s warning should be heeded.

Alyson Klein, staff writer for Education Week magazine, stated in an interview on CSpan; “This bill does seek to roll back the federal footprint in education.” If this is true, then one of the fundamental goals of education reform is not even on the table. If DoE influence is not stopped, it doesn’t matter what law is passed, modified or reauthorized; DoE will still have the control.

Mary Kusler, Director of Government Relations for the National Education Association sent a letter to each member of Congress urging them to vote against the House bill: “The bill erodes the crucial federal role in public education,” a role that polls show Americans want the DoE out of public education. She further states the bill; “...does not push states enough...” and “The bill lacks clear protection of collective bargaining... and eliminates provisions of current law that respect educators’ rights to bargain… The bill allows Title I funds to follow the child,” and “The bill provides insufficient funding.” This is what it comes down to... money. If parents move their children from underperforming or dangerous schools, the money will go with the child to the receiving school. Perhaps Ms. Kusler has not accessed the DoE’s National Center for Education Statistics website. There was the $48.6 billion from the State Fiscal Stabilization Fund and the $4.15 billion for RTTP; Ms. Kusler offers no dollar amount that would solve the problem.

Michael W. Macleod-Ball, Acting Director and Jennifer Bellamy, Legislative Counsel of the ACLU sent a letter to all senators urging them to vote no. Among their many concerns; “The bill limits the federal government’s ability to enforce the law if state policies fall short or fail to support student success.” The question arises, what enforcement does the ACLU think is going to happen when the DoE has its own law department and creates its own laws and policies; do they think DoE will enforce itself?  

The ACLU is also concerned that the bill “Does Not Require States to Strive for Resource Equity.” That is correct; otherwise the District of Columbia would not get $19,847 per student while Utah gets $6,441 as show by the DoE revenue and expenditures report for 2012 (the latest year the DoE provides data). There is no explanation for the disparity between students in Utah and students in the District.

None of this should come as a surprise. The Department of Education was created in 1979 by President Jimmy Carter as payback to the National Education Association for helping get him elected in 1976. Creating the department ran counter to his plan to streamline government, but it was important to ‘candidate’ Carter for reelection. Every administration since has used the DoE as a political tool to influence, or indoctrinate, generation after generation of American students. With all the ‘behind closed doors’ machinations of the administrations up to and including the current Obama administration, the DoE has grown in political power. An agency with $69 billion and unchecked authority to intrude into virtually any area of education it chooses will not be deterred by any little squabble in Congress.  

As John Stuart Mill observed in 1869:

‎A general State education is a mere contrivance for moulding people to be exactly like one another; and as the mould in which it casts them is that which pleases the dominant power in the government...

Perhaps the American public will get a glance at the reauthorization of ESEA at some point, but based on prior history it is unlikely to happen prior to passage.

Larry Creech holds a BA and MA in Humanities and Liberal Studies from Georgetown University where he is currently preparing to defend his Doctoral dissertation in interdisciplinary studies.