has;the;right;to;spend;federal;money;for
the;benefit;of;the;nation;;the;power;to
tax;and;spend;is;one;of;its;enumerated
powers;in;the;Constitution,;under;Arti-
cle;I,;Section;8.;However,;critics;rightly
see;this;plan;as;a;successful;attempt;by
the;feds;to;buy;a;say;in;education;policy.
In light of the growing federal education role, President Jimmy Carter and
Congress;re-created;the;Department;of
Education;in;1979;at;the;Cabinet;level,
with;a;budget;that;exceeds;$60;billion
dollars a year today. 6 And still the fed-eral;education;power;continued;to;grow,
taking on further roles when Congress
reauthorized;ESEA;in;2002;under;Presi-
dent;George;W.;Bush—a;law;we;now;call
No;Child;Left;Behind.;Under;No;Child,
the grant of federal funds became linked
to;a;requirement;that;the;states;develop
specific;academic;standards—along;with
holding states accountable when their
students fail to improve under these
standards. 7
Legal Limits on Obama’s Plans?
Congress knew from the start that the
expansion of federal power needed to
be;kept;in;check.;For;that;reason,;the
1965 ESEA prohibited federal officials
from exercising “any direction, super-
vision, or control over the curriculum,
program;of;instruction,;administration,
or;personnel;of;any;educational;institu-
tion or school system . . . .” 8;A;1972;law,
and;the;1979;statute;re-creating;the;Ed-
ucation;Department,;contained;similar
limits;on;federal;power. 9;And;in;2002,
No Child added even stronger limits.
It forbid the use of federal funds “to
endorse,;approve,;or;sanction;any;cur-riculum”;and;banned;any;plan;to;have
“student academic achievement stan-dards;approved;or;certified;by;the;Fed-eral Government, in order to receive”
federal dollars. 10
Essentially, all these rules mean that
the content of education still belongs to
the states. There must be a limit to how
far the feds can go in coercing the states
to generate a national curriculum. That
is why conservatives and homeschool ac-tivists;have;criticized;Obama’s;use;of;the
“Race;to;the;Top”;program;to;promote
the;CCSS.;Some;argue;persuasively;that
the;President’s;program;forces;states;to
adopt the CCSS—essentially allowing
the;feds;to;“approve;or;certify”;student
academic achievement standards, in violation of No Child. 11 And Obama has
done;this;without;specific;authorization
from Congress.
In fact, Obama’s program is care-fully;worded;so;that;it;appears;the;states
themselves;are;coming;up;with;their;own
standards and curriculum, but when
one looks behind the legal technicalities, the reality is the federal government
has;cleverly;used;its;spending;powers;to
entice;the;states;to;adopt;a;particular;set
of;standards—the;CCSS.;And;that—as
homeschool;activists;fear—is;a;giant;leap
toward a national curriculum.
The solution to this problem rests
with Congress. Legislators can negate
the;President’s;actions,;but;only;if;they
act soon. The change achieved under
Obama’s;programs;will;eventually;be;so
deeply;entrenched;at;the;state;level;that
it;will;be;nearly;impossible;to;reverse;the
damage.
Antony B. Kolenc (J.D., University of Florida
College of Law) is an author, speaker, and
law professor at Florida Coastal School of
Law. He is also a retired U.S. Air Force officer.
He and his wife have homeschooled their five
children for over a decade. Tony is author of
The;Chronicles;of;Xan historical fiction trilogy, as well as many legal articles. Learn more
about him at www.antonykolenc.com. If you
have a law-related homeschooling question
that you would like to see Tony address in a
future column, please email TL@TheHome
schoolMagazine.com.
Endnotes:
1.;See www.corestandards.org/resources/frequently
-asked-questions. The;CCSS;website;provides;a
great deal of data, a full defense of the Initiative
and;its;claimed;advantages,;as;well;as;a;copy;of
the standards themselves.
2.;For;a;full;attack;on;the;CCSS,;see William A.
Estrada, Common Core State Standards Initiative: Too Close to a National Curriculum,
Homeschool Legal Defense Association
(HSLDA),;December;17,;2012;(available;at;www
. hslda.org/docs/news/2012/201212170.asp).
3.;James;Madison,;Federalist No. 45,;January;26,
1788 (available at www.constitution.org/fed
/ federa45.htm).
4. United States v. Lopez,;514;U. S.;549,;564;(1995).
5.;See Public;Law;89-10,;Apr.;11,;1965;(available;at
files.eric.ed.gov/fulltext/ED017539.pdf ).
6.;For;more;information;on;the;history;and;func-
tion;of;the;U.S.;Department;of;Education;(ED),
visit the ED website at www2.ed.gov/about
/overview/focus/what.pdf.
7.;Foranoverviewof No Child Left Behind, see www2
. ed.gov/nclb/overview/intro/guide/guide.pdf.
8. See Public;Law;89–10,;Apr.;11,;1965,;Section;604
(available;at;files.eric.ed.gov/fulltext/ED017539
.pdf).
9.;See Section;103[b],;Public;Law;96-88,;and;20
U.S.C.;§;1232a;(similarly;forbidding;the;fed-
eral government from exercising “any direction,
supervision, or control over the curriculum,
program;of;instruction,;administration,;or;per-sonnel of any educational institution, school, or
school system, or over the selection of library
resources,;textbooks,;or;other;printed;or;pub-lished instructional materials by any educational institution or school system, or to require
the assignment or transportation of students
or teachers in order to overcome racial imbalance.”).
10.;20;U.S.C.;§;7907;(b);and;(c).
11. For a lengthy legal argument against the
President’s;program,;see Robert S. Eitel and Kent
D. Talbert, The Road to a National Curriculum:
The Legal Aspects of the Common Core Standards, Race to the Top, and Conditional Waivers,
Engage,;Vol.;13,;Issue;1;(Feb.;16,;2012);(avail-
able at www.fed-soc.org/publications/detail
/the-road-to-a-national-curriculum-the-legal
-aspects-of-the-common-core-standards-race
-to-the-top-and-conditional-waivers).
PRACTICA
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Complete interactive music
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See ars-nova.com/homeschool
The;solution;to;this;problem;rests;with;Congress.
