The Lawlessness of Reform: RTTT, Common Core, and the Radical Restructuring of Assessment Governance

Education reform cowboys and cowgirls say they love education standards, and maybe they do. But they seem less enamored with existing legal standards. Below I review some of the evidence regarding the illegality of current reform efforts.

The Illegal Status of Race to the Top, the Common Core, and Partnership for Assessment of Readiness for College and Career

There are two sections of federal law explicitly and broadly restricting the actions of both Congress and the Executive Branch with respect to education. First, there is the long-standing General Education Provisions Act (GEPA), which governs the administration of federal education programs.[1] It sets the following limitations:

No provision of any applicable program shall be construed to authorize any department, agency, officer or employee of the United States 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 …

Enacted in 1979, the Department of Education Organization Act (DEOA) established the Department of Education (USDOE) as an executive branch department administered under the supervision and direction of the Secretary of Education.

The law’s purpose is described, in part, as follows:

It is the intention of the Congress in the establishment of the Department to protect the rights of State and local governments and public and private educational institutions in the areas of educational policies and administration of programs and to strengthen and improve the control of such governments and institutions over their own educational programs and policies.

Framed as a rule of construction, the following broad limitations are outlined:

No provision of a program administered by the Secretary or 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.

Since Race to the Top (RTTT) is not itself a law, its provisions can not be construed as legal exception. A plausible legal basis for RTTT could be the American Recovery and Reconstitution Act (ARRA) which authorized RTTT funds (but not its content). But, while granting the Secretary broad and unchecked power, it offers no clear exception to the GEPA or the DEOA.[2]

Four sections of New York State law were rewritten in accordance with RTTT requirements. These sections concerned teacher evaluation, charter schools, and expansion of student and teacher data systems. In effect, USDOE offered waivers and monetary incentives to the States in order to obtain their compliance with USDOE favored policies that have no basis in current federal law. Thus, the USDOE has engaged in law-making activity outside the bounds of Congress, and against provisions of existing legislation, namely DEOA. Each of the four legal revisions concerns the “administration” of education and thus suggests the USDOE has “exercised direction” and thus is in violation of its own authorization. Legal revisions to the laws of New York State were done explicitly to win RTTT funds and NCLB waivers. The USDOE established the guidelines for eligibility, and used the promise of funds to compel change to state law.

While some might quibble with this, the clear intent of the DEOA to limit the USDOE from establishing curriculum in any way, shape or form is undebatable. Adopting the Common Core was a key requirement to win RTTT, offering further evidence of legal violation. This argument holds whether or not the standards themselves were constructed by the USDOE or other federal agencies, as New York’s MOA with the National Governors Association and Council of Chief State School Officers (CCSSO) is for the USDOE’s benefit, that is, entering into the MOA and meeting its provisions is a basis for awarding grants.

New York State’s (like all such MOA’s) “Common Core of Standards MOA” reads:

Purpose: This document commits states to a state-led process that will draw on evidence and lead to development and adoption of a common core of state standards (common core) in English language arts and mathematics for grades K-12. These standards will be aligned with college and work expectations, include rigorous content and skills, and be internationally benchmarked. The intent is that these standards will be aligned to state assessment and classroom practice. The second phase of this initiative will be the development of common assessments aligned to the core standards developed through this process.

Mercedes Schneider wonders:

If the process is “state-led,” why is the state entering into a legal arrangement with the federal government to “ensure” that the state “leads” itself? If the state is “leading itself,” how is it that the “standards” will be “common” to other states?

Going back to the purpose of the DEOA, do we see evidence of the USDOE working to “strengthen and improve the control of such governments and institutions over their own educational programs and policies.” I think not. Instead we see the opposite: the notorious “module” scripted lessons, that include what books are to be taught in schools. Librarians are being compelled to purchase books consistent with the Core regime, a flagrant violation of the of DEOA.

There is more evidence that the USDOE is violating the portion of federal law cited above: the USDOE compelled states to apply and commit to the Race to the Top assessment program and the consortia it created before states could reasonably consider the implications of RTTT assessment application requirements. Note the following time table.

While the MOA is signed by then-Commissioner Steiner and Chancellor Tisch, it is not dated. New York’s RTTT application, however, is dated June 1, 2010. The RTTT assessment program, which gave rise to the Partnership for Assessment of Readiness for College and Career (PARCC), of which New York is now a governing member, was announced in the Federal Registrar on April 9, 2010. The PARCC application is dated June 23, 2010. Practically, RTTT applications were agreeing to participate in two programs, with one application; little time to review such massive change suggests compulsion. This is further evidence of the federal twisting of the state arm, eliminating the possibility that state constituencies could be involved in decision making. This does little to strengthen local control over educational programs, a stated aim of the DEOA. It appears, in fact, that the hope was to impose the reform quickly before anyone would notice what was actually happening. And NYSED clearly orchestrated the appearance of broad support for its initial RTTT application.[3]

PARCC’ing Democracy: Creating Private Entities to Govern Assessment Against Public Authority

PARCC is another means for altering governing arrangements against the stricture of existing law and its defense of public, local control.[4] Three significant changes have occurred as a result of PARCC, all of which serve to further eliminate the public from governing education, further emasculate legislative bodies (federal and state) and increase extra-state power of state executives. First, PARCC (a 501c3) signifies the removal of assessment governance from state authorities, and places responsibility for assessment into the hands of a private, non-profit entity (and its corporate “partners”) that is accountable to no one. Thus, as a result of federal initiatives, local and state control over assessment has been diminished if not completely emasculated. Second, PARCC sets up a governance structure among states, where executives of each state form governance mechanisms over other states (including matters of finance), but outside the bounds of the federal system and state authority. In a sense, PARCC reflects “contracting out” assessment of public schools authorized only by each state’s law to a “public/private partnership” outside the bounds of the federal-state system. How a state legislature such as in New York would hold PARCC accountable is unclear. Note that PARCC has explicit connections with and is following the lead of Pearson’s Sir Michael Barber and his form of behaviorism, “Deliverology.”

None of this serves to strengthen the rights of the public or enhance local control. And, by controlling assessment, curricular mandates associated with the Common Core can be enforced, over and against state authorities, especially Local Education Authorities. Thus again, we see the USDOE violating the DEOA.

Finally, few realize that New York State’s RTTT assessment application contains an MOU promising to eliminate any state law or policy inconsistent with RTTT assessment requirements, which means, New York’s Department of Education agrees to impose compliance with PARCC and its inBloom data system outside the normal process for state legislation, including public debate of proposed laws.

The Lawlessness of Reform

It is becoming clear that not only are education deformers acting to destroy both the public and education, they are introducing lawlessness in their wake.

As I have followed developments around the state this fall, I’m hearing consistent reports of two disturbing trends: (1) the imposition of mechanist, command-and-control regimes in schools as educators are required to follow NYSED regulations (based on RTTT), and simultaneously, (2) the imposition of anarchy as districts attempt to hurriedly implement a plethora of unclear, contradictory, and otherwise nonsensical mandates. Thus, an atmosphere of chaos is being imposed by top-down, command-and-control authority structures, where leadership is increasingly confused with dictate and impunity. Reform cowboys and cowgirls raise hell, but take no responsibility for the chaos that ensues. This is the lawlessness of “reform”.

This lawlessness has given rise to a de facto change to the legally stated purpose of education. Wendy Lecker, a senior attorney for the Campaign for Fiscal Equity project at the Education Law Center, offers this example:

Is “college-and-career-ready” an adequate standard, as measured by Connecticut’s constitution? The answer is a resounding “no.” In the pending school funding case, CCJEF v. Rell, Connecticut’s Supreme Court ruled that our constitution “guarantees Connecticut’s public school students educational standards and resources suitable to participate in democratic institutions, and to prepare them to attain productive employment and otherwise to contribute to the state’s economy, or to progress on to higher education.”

My interpretation of the DeGrasse ruling in New York State is the same: RTTT’s imposition of the Career and College Ready Common Core agenda removes the democratic purpose of schooling New York State is legally bound to provide, according that ruling. This reveals the Career and College Ready agenda to be more of a Servant and Slave Ready agenda.

Thus, it is not merely that current education policy is illegal, although as readers see, I do believe that to be the case. As no action has been taken to stop the patently obvious legal violation by responsible authorities, we are seeing the transformation of state and federal authority into lawlessness itself: 1: not regulated by or based on law; 2a: not restrained or controlled by law: unruly.

In the end, the Billionaires “driving” reform think they can do what they want, when they want, with whomever they want. It’s definitely not the parents and teachers who are out of control in New York State.


  1. See this recent offering by the Pioneer Institute, as well as this. It is important to understand that issues of decision-making are not narrowly politically “right” or “left” and concern all irrespective of ideology.
  2. You can download and review the legislation; you can search for the section directly relevant to RTTT: SEC. 14007.
  3. See the appendix, here.
  4. I presented an initial, but more detailed analysis of PARCC here.

7 Comments The Lawlessness of Reform: RTTT, Common Core, and the Radical Restructuring of Assessment Governance

  1. Maryann Mercer November 17, 2013 at 8:14 pm

    Dr. Garrison,
    I enjoyed attending the panel at D’Youville last week on the Common Core and High Stakes Testing. Your presentation reinforced my thought that the whole RTTT was overstepping the limits of the Federal Government as it was getting involved in public education which was supposed to be led at the state/local level. This article is thought provoking and does provide evidence (deformers live that word) that RTTT is illegal. I wonder if any teacher or teachers can use that as a legal defense should they be rated ineffective or developing two years in a row and lose their jobs? I am going to pass your article on to my colleagues. Thank you.

  2. Mark Garrison November 17, 2013 at 9:06 pm

    Maryann: thanks for your comment!

    For a good review of the legal consequence of using student test scores as a basis for evaluating teachers, see this:

    The above article does not address the legality of RTTT, but it does suggest a strong case for APPR violating due process rights.

    I do believe there is great significance in the degree to which current “reforms” are violating basic legal standards.

  3. Kristen Frawley December 4, 2013 at 1:48 am

    Dr. Garrison,
    Just thinking….where does edTPA fit into this? Very similarly to Common Core adoption, edTPA is “sweeping the nation”. Mandates in RTTT and ESEA 2010 call for better teacher preparation programs and better means to recruit (certify) “effective teachers.” Seemingly, everyone now needs a new way to evaluate teacher candidate readiness. Seemingly, everyone now needs a statewide database to maintain information about these candidates (their K-12 students and their teacher preparation programs too).

    Enter: edTPA – a way to assess new teachers and Pearson – a statewide (nationwide) database. edTPA is now being implemented in 34 states and DC. edTPA is privately owned and retains the rights materials generated as it is used across the country.

    Interestingly, NYS set the pass rates for the edTPA two weeks ago in line with the national edTPA field-test results for 2012-2013. This year, if teacher candidates in New York score a 41 or below, they will fail the exam. In the field-testing for edTPA and Pearson, only 58% of teacher candidates passed at this level.

    Here’s how this will shake out — A teacher candidate nears graduation from a teacher preparation program. She will take her edTPA exams, sign a waiver from Pearson so she is prohibited from talking about the test, and pay a hefty $300. If she fails the test, her information will be stored in this database until, of course, she takes the test again. Or perhaps, she’ll think her college degree in teacher preparation is worthless and just move on to a field where she can really be effective. And maybe her teacher preparation program won’t be re-accredited too.

    All of this seems like a very far-reaching federal government initiative, especially for a federal government that isn’t supposed to meddle.

  4. Mark Garrison December 4, 2013 at 2:06 pm

    Yes, edTPA is a very significant part of imposing the Core, value-added models, and pressuring schools of education to parrot reform ideology and practice. I think edTPA is particularly targeting schools of education as many stood as bastions of resistance to the last few decades of “Reform.”

    But what is interesting about the federal role is this: it is illegal, I believe, but what is actually occurring is that the power of the federal executive branch is being used to bring about new arrangements where non-federal and non-state entities control what is commonly thought of as public endeavors, e.g., education. So while the federal government is acting against law, and while it is using its power to impose a distinct set of policies in states, these policies do not necessarily strengthen federal power in the “normal way” one might think. They strengthen the move of the public to the private, of more secretive governance mechanisms, and structures not amenable to public oversight. If it were only a federal power grab! Federal power is being used by those usurping power, who serve the anti-public education agenda.

  5. John McTigue December 8, 2013 at 4:01 pm

    Fantastic read! I found myself thinking the same as KFC while reading that this pretty much lays out a roadmap for challenging the APPR & maybe even RttT as it has been leveraged into state Ed Departments and usurped local/state control.

    Have you contemplated what the roadmap for a legal challenge to RttT & the APPR would unfold?

    PS I’m sharing this article often and widely. Important & engaging read!

  6. Mark Garrison December 11, 2013 at 9:15 pm

    John: sorry for the delayed response; spent some time in an airport over the last few days!

    I think the legal basis for a challenge is far clearer than with NCLB, yet, not challenge has been made. Why? It is curious. I do think it is one route that can be taken, but I also would not rely on such a route, for a variety of reasons.

    I share this article, which reviews the legal basis for a challenge to APPR. See:

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