Why U.S. Education Needs the U.S. Constitution Now   4 comments


Phillip Hamburger, law professor at Columbia Law School, gave a moving speech at Hillsdale College about the Constitution, also published in Imprimis this year.  It laid out more clearly than I’d seen it before, exactly how the U.S. has strayed from our Constitution, and how it’s endangering us.  His speech was titled, “The History and Danger of Administrative Law”.

Professor Hamburger made no allusion to education reforms, yet he wonderfully, as a bonus, happened to explain the foundational problem of the Common Core Initiative: that the governance system of Common Core is unrepresentative, unconstitutional and dangerous.  Here’s how.

Hamburger explained that administrative law revives something that the Constitution barred:  prerogative, or absolute power.  He wrote: “Administrative law is commonly defended as a new sort of power, a product of the 19th and the 20th centuries that developed to deal with the problems of modern society in all its complexity… What I will suggest, in contrast, is that administrative power is actually very old.”

Old is right.  Throughout history, countless generations suffered because others have wielded power over their lives.  The whole purpose of the suffering and sacrifices of American pilgrims and pioneers was to escape unbalanced, top-down, often cruel, power.  The success and freedom of the USA stemmed from the Constitution’s restraining of human power over other humans, and its strict limitation of its own government, and its checking and spreading of power, in order to avoid the cycle of oppression that the founders fled.  The Constitution gives no lawmaking power to anyone but Congress.

Hamburger said, “Put simply, administrative acts are binding or constraining edicts that come, not through law, but through other
mechanisms or pathways…In a way we can think of administrative law as a form of off-road driving… For those in the driver’s seat, this can be quite exhilarating. For the rest of us, it’s a little unnerving.


Reading this, I thought about Secretary of Education Arne Duncan, who drove off-road when he made regulations and policy changes to what Congress had long ago created in the privacy-protecting federal FERPA laws, so that he could meet his education data mining goals, which included (as outlined in his cooperative agreements* with state testing consortia) the sharing of “student-level data” –subject to law. Duncan had to alter that law. He shredded the previously protective FERPA when he made those regulatory changes.   The Electronic Privacy Information Center sued him for it.  But Duncan got away with it.  Case dismissed.

I also thought of Duncan’s waving of money in front of cash-strapped states, tempting/coercing states into adopting Common standards and assessments and database systems in exchange for money.  Off-road again.  No basis in Constitutionality, just in cash.

I also thought about  the little unauthorized onto-the-road drive taken by a little private club with a misleading name, the National Governors’ Association (NGA) which acts as if it were a legitimate voice for the people, as if it were Congress.  NGA created, promoted and copyrighted these national standards, (the Common Core) as well as partnering with CCSSO in making national data collection standards (CEDS).  The CCSSO and NGA hold no representational authority over education.  It’s a giant bluff, and would almost be laughable, but it’s not funny, because it damages America.

I also thought about the blurring of lines of authority and power that happen with the creation of public-private-partnerships.  When NGA and its sister-club, the superintendents’ club, CCSSO, partnered with the federal government and with Bill Gates to create education policy, Common Core bypassed Congress in two ways: by federal overreach plus corporate overreach –into what ought to be the states’ voters’ decision making arena.

Here’s a screenshot, evidence that the federal government has partnered with the private club that copyrighted Common Core and created Common Data Standards:

ccsso eimac dept of ed ceds

Remember our Constitution.  It says that ALL legislative powers shall be vested in a Congress.  Congress is supposed to make the laws.  The Department of Education isn’t Congress. Neither is the National Governors’ Association, and neither is Bill Gates.  Their assumption of unauthorized power over education policy, rather than having voters, via their Congressional representatives, to determine how education goes, is a clear corruption.

So what about corruption? Who cares?

Here’s why we must care. Hamburger writes that administrative law is “essentially a reemergence of the absolute power practiced by pre-modern kings. Rather than a modern necessity, it is a latterday version of a recurring threat—a threat inherent in human nature and in the temptations of power.”

He reminds us: “Early Americans were very familiar with absolute power. They feared this extra-legal, supra-legal, and consolidated
power because they knew from English history that such power could
evade the law and override all legal rights… Americans established the Constitution to be the source of all government power and to bar any absolute power. Nonetheless, absolute power has come back to life.”

He goes on: “ over the past 120 years, Americans have reestablished the very sort of power that the Constitution most centrally forbade. Administrative law… binds Americans not through law but through other mechanisms—not through statutes but through regulations—and not through the decisions of courts but through other adjudications. It… requires judges to put aside their independent
judgment and defer to administrative power as if it were above the
law—which our judges do far more systematically than even the worst
of 17th century English judges. And it is consolidated in that it combines the three powers of government—legislative, executive, and judicial—in administrative agencies.”

He concludes:  “In sum, the conventional understanding of administrative law is utterly mistaken. It is wrong on the history and
oblivious to the danger. That danger is absolutism: extra-legal, supra-legal, and consolidated power. And the danger matters because administrative power revives this absolutism. The Constitution carefully barred this threat, but constitutional doctrine has
since legitimized this dangerous sort of power. It therefore is necessary to go back to basics…  We should demand rule through law and rule under law. Even more fundamentally, we need to reclaim the vocabulary of law: Rather than speak of administrative law, we should speak of administrative power—indeed, of absolute power...”

Read the rest here.

Thank you so much, Professor Hamburger.



*Today, I noticed that the Cooperative Agreement between the Department of Education and Smarter Balanced Assessment Consortia link says “webpage not available.” But I had typed it into another post, not in full but at length, if you are interested, here.

4 responses to “Why U.S. Education Needs the U.S. Constitution Now

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  1. Reblogged this on News You May Have Missed and commented:
    Why U.S. Education Needs the U.S. Constitution Now. #CommonCore

  2. I would add the following – the 10th Amendment, ESEA provisions, GEPA law, FERPA law, a 51 page legalese document from Black on Duncan’s illegal use of waivers – and background info from Jane Robbins:
    The first observation is the 10th Amendment which basically indicates that that which is not delineated to the federal level is empowered to the state level – thus education is a state and local duty.

    A second consideration is the 1974 Congressional FERPA law which Duncan unilaterally changed without congressional approval. No longer are parental signatures required for release of private student/family information to 3rd party ed researchers and vendors. Circumvented the need to have Congressional approval.

    There are several prohibitions included in federal law that attempt to limit the role of the federal government with respect to the approval of state standards and assessments, control of curriculum, control over educational materials, and the creation of a national test. Relevant prohibitions appear in the ESEA and in the General Education Provisions Act

    The third issues are the ESEA Provisions
    Section 1905 of the ESEA includes specific prohibitions related to Title I.
    “Nothing in this title shall be construed to authorize an officer or employee of the Federal Government to mandate, direct, or control a State, local educational agency, or school’s specific instructional content, academic achievement standards and assessments, curriculum, or program of instruction.”

    The Section 1905 provision is reinforced by provisions in Section 1111 regarding the state plan that each state must submit in order to receive Title I-A funds. Under Section 1111(b)(1)(A), each state is required to “demonstrate” that the state has adopted challenging academic content and achievement standards, but the state is not required to submit the actual standards to the Secretary.
    Section 9527 of the ESEA also includes several provisions that limit the federal role with respect to standards and control of curriculum.11 Section 9527(c), no state is required to have its content or performance standards approved by the federal government as a condition of receiving funds under the ESEA.12 Section 9527(b) prohibits ED from using any funds provided to the department under the ESEA “to endorse, approve, or sanction any curriculum designed to be used in an elementary school or secondary school.” That is, ED is prohibited from requiring states, local educational agencies (LEAs), and schools to use specific curricula, and states, LEAs, and schools do not need ED’s approval of their curricula in order to receive funds under the ESEA.
    There is also a more general prohibition placed on the federal government with respect to curriculum. Section 9527(a) states:
    The statutory language bars ED from prescribing the specific instructional content, curriculum, or program of instruction that will be used to teach the content included in a state’s standards, this prohibition does not extend to cover other requirements related to standards.

    The starting point in interpreting a statute is the language of the statute itself. The Supreme Court often recites the “plain meaning rule,” that, if the language of the statute is plain and unambiguous, it must be applied according to its terms

    The next consideration is the GEPA Provisions
    GEPA contains several provisions similar to the prohibitions set forth in the ESEA.15 For example, Section 438 of GEPA clarifies that no provision of any applicable program16 is intended to authorize the federal government to exercise any “direction, supervision, or control over the curriculum, program of instruction, administration, or personnel of any educational institution, school, or school system,” or over the selection of “library resources, textbooks, or other printed or published instructional materials by any educational institution or school system.”17 These prohibitions, which are designed to maintain state and local control over education, prevent ED from requiring SEAs, LEAs, or schools to adopt specific curricula or instructional programs, but the statutory language makes no reference to standards or assessments.
    Likewise, Section 447 of GEPA specifies that notwithstanding any other provision of law (except as discussed below), no funds provided to ED or to an applicable program may be used to “pilot test, field test, implement, administer or distribute in any way any federally sponsored national test in reading, mathematics, or any other subject that is not specifically and explicitly provided for in authorizing legislation enacted into law.”18 The exceptions to this provision include the Third International Mathematics and Science Study (TIMSS) or other international comparative assessments that are administered to a sample of students in the United States and foreign countries and developed under the authority of Section 153(a)(6) of the Education Sciences Reform Act of 2002 (ESRA). Thus, unless Congress acts to support a federally sponsored national test in a subject area, the Secretary is prohibited from using funds for this purpose. While the Secretary is prohibited from using funding to develop such tests, the Secretary does not appear to be barred from providing federal funds to support non-federally led efforts to voluntarily develop a common test.

    So the federal government is prohibited from creating tests or instructional materials– but the private groups NGA and CCSSO, funded by Gates, are not! This is why the federal Department of Education officially partnered with these unelected, private corporate interests –groups which are not accountable to G.E.P.A. laws, to teachers, principals, taxpayers, voters or children. Everybody knows that standards dictate curriculum like a frame dictates the height and width of a house. But GEPA law doesn’t use the word “standards.”

    With respect to the Race to the Top/Common Core scheme, Robert S. Eitel and Kent D. Talbert, former deputy general counsel and general counsel, respectively, of the U.S. Department of Education, concluded that “these standards and assessments will ultimately direct the course of elementary and secondary study in most states across the nation, running the risk that states will become little more than administrative agents for a nationalized K-12 program of instruction and raising a fundamental question about whether the Department is exceeding its statutory boundaries.”
    In a 2-9-12 report The Legal Aspects of the Common Core Standards, Race to the Top, and Conditional Waivers Author(s): Robert S. Eitel and Kent D. Talbert, with contributions by Williamson Evers stated “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.

    Another heavy-handed and legally suspect Duncan is candid about what the consortia will do with that money: “PARCC . . . will be developing curriculum frameworks and ways to share great lesson plans. [SBAC] will develop instructional modules . . . to support teachers in understanding and using assessment results.”It is impossible to view this process as anything other than federal direction, supervision, or control of curricula – and therefore illegal under three federal statutes.

    And even the Department acknowledges that the Standards will drive curriculum. In its Notice of Final Priorities for the Race to the Top Fund, the Department stated that “[s]ome of the major benefits of common standards will be . . . the coordination of information that could inform the development and implementation of curriculum, instructional resources, and professional development.”69 By nationalizing the standards, the Department is nationalizing the curriculum. The assessments (standardized tests) that will be aligned with Common Core will also facilitate federal control over curricula. Again through Race to the Top, the Department has poured $362 million into two consortia of states (PARCC and SBAC)
    Last item to consider – Federal law sets forth certain things that can be done under the Individuals with Disabilities Education Act (IDEA). No one may circumvent those laws. Only Congress can change laws, but because of the current Executive Branch’s agenda to bring states under federal control, grant-based regulations and mandates have increasingly been created by Secretary Duncan, in violation of the Constitution.

    On June 24, 2014, Secretary Duncan circumvented congress and issued mandates for changes in the way state special education programs are evaluated Eight U.S. senators – Senator Hatch- prepared a letter explaining the violations of law involved in Duncan’s
    In essence, the mandate changes the way the school funding game is played by suddenly announcing that historical NAEP test score data will be used retroactively to evaluate federal funding on schools that have children with disabilities.
    This is an egregious violation of the law . NAEP was supposed to be for a common set of data between the states and was mandated to never be used for high stakes testing determination.
    The authorizing statue for NAEP (20USC 9622) specifies that “Any assessment authorized under this section shall not be used by an agent or agents of the Federal Government to establish, require, or influence the standards, assessments, curriculum, including lesson plans, textbooks, or classroom materials, or instructional practices of States or local educational agencies”

    The changes spelled out in Duncan’s “Results-Driven Accountability” framework clearly amount to federal influence on standards and assessments states and districts use to direct the educational program of students with disabilities and would give proficiency as measured by NAPE to evaluate and either reward or sanction school districts. This is clear coercion and influence, if not direct control. This is unilateral changes to IDEA compliance framework without legislative approval and violates the clear letter of the law.
    Proponents of these reforms like to point out that adopting these reforms was a legitimate exercise of state’s rights because the development of the standards was led by the Governors at the National Governors Association. The problem is, does the NJ State Constitution grant authority over education to our Governor. Furthermore, there is no such thing in the U.S. Constitution as a council of governors. They are not a legitimate alternative to Congress, our national representative body. The organizations that introduced Common Core to our nation, state-by-state, had no constitutional commission to do what they did.
    It does not say that they can outsource a role we entrusted to them to a non-governmental trade organization who outsourced it to another group of hand-picked experts. This is called “delegation” and it has been established in legal precedent to be unconstitutional.
    , the Secretary lacked explicit statutory authority to impose these conditions. At best, NCLB implies authority to condition waivers, but implied conditions would be limited to the scope of NCLB itself. The waiver conditions the Secretary imposed go well beyond the scope of NCLB.

    You treat these particular waiver conditions as falling within the scope of the Secretary’s authority would be to extend the Secretary the equivalent of law-making power, which separation of powers doctrines prohibit. The power to unilaterally impose open-ended policy through waiver conditions would be remarkable not just for its transformation of key aspects of education, but for the entire federal administrative state. It would open the door to the spread of a more expansive administrative power than ever seen before.

    University of South Carolina law professor Derek W. Black In an article in the Vanderbilt Law Review argues that the administration’s waiver program is both illegal and a bad precedent.

    “Two of the most significant events in the history of public education occurred over the last year. First, after two centuries of local control and variation, states adopted a national curriculum. Second, states changed the way they would evaluate and retain teachers, significantly altering teachers’ most revered right, tenure. Not all states adopted these changes of their own free will. The changes were the result of the United States Secretary of Education exercising unprecedented agency power in the midst of an educational crisis: the impending failure of almost all of the nation’s schools under the
    No Child Left Behind Act (NCLB). The Secretary invoked the power to impose new conditions on states in exchange for waiving their obligations under NCLB….As a practical matter, he federalized
    education in just a few short months.

    This unilateral action is remarkable not only for education, but from a constitutional balance-of-power perspective. Thus, the federalization of education through conditional waivers was momentous, but unconstitutional.

    Specifically, it assaults the Spending Clause in these two ways. 1) You can’t use federal money to change the rules that the money is attached to and 2) Congress can’t use federally funded programs to coerce states into adopting federal policies.

    conditional waiver authority can threaten the balance of powers the Constitution secures between states and the federal government, and between Congress and the executive.

    A Pioneer Institute and American Principles Project White Paper
    by Emmett McGroarty and Jane Robbins

    Derek Black – Federalism of Education

  3. Pingback: The Common Core Weekend Reads – 1-4-15 | Lady Liberty 1885

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