Those responsible for elementary and secondary education know that federal law prohibits the U.S. Department of Education from establishing a national curriculum, instruction, and the like.  Or at least they should know.  With only minor exceptions, the General Education Provisions Act, the Department of Education Organization Act, and the Elementary and Secondary Education Act of 1965, as amended by the No Child Left Behind Act (NCLB), ban the federal government from directing, supervising or controlling elementary and secondary school curricula, programs of instruction, and instructional materials.

In our paper released today, my law partner, Kent Talbert, and I examine how recent federal policy initiatives are significantly eroding these restrictions.  As we explain, through three major initiatives—the Race to the Top Fund, the Race to the Top Assessment Program, and ESEA flexibility guidance (i.e., NCLB waivers)—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. 

When combined with the use of discretionary NCLB waivers, these standards and assessments will ultimately erode these legal restrictions, with states serving as little more than administrative agents for a nationalized K-12 program of instruction.  This is a critical compliance issue that deserves the attention of Congress, other policy-makers, and those interested in innovation in the education sector.