Common Core Was Voluntary on Paper, Here Is How Washington Made It Stick

Definition of a voluntary program, as practiced in Washington: you may do anything you like, provided that you want the money. The offer is not a command. It is merely an offer, the way a lender's offer to a man standing in a flood is merely an offer of a rope.

This post is about how that works, using the most consequential education story of the past two decades. The Common Core State Standards were sold, correctly in the narrowest sense, as a state-led effort. Nobody in Washington ordered a state to adopt them. And yet within about two years of their publication, the great majority of states had done exactly that. By the fall of 2011 the White House counted 44 states and the District of Columbia as having adopted a common set of college- and career-ready standards. The gap between "voluntary" and "universal" is the subject of this post, and the explanation is not mysterious. It is a matter of the Treasury.

The claim and the terms

Thesis: federal law forbids Washington to direct the curriculum of the nation's schools, and Washington did not break that law in so many words; it achieved the same result by attaching grants and waivers to the adoption of particular standards, which is a form of direction that the statute's drafters would have recognized.

Terms:

• Standards are statements of what students should know and be able to do at each grade. They are not a curriculum, which is the actual material, books and lesson plans, but they shape the curriculum because tests are written to them and textbooks are sold on them.
• Common Core means the Common Core State Standards for English language arts and mathematics, released in 2010.
• Race to the Top was a competitive grant program funded in the 2009 stimulus.
• A waiver is permission, granted by the Secretary of Education, to opt out of requirements of a federal law in exchange for conditions the Secretary sets.
• The GEPA prohibition is a provision of the General Education Provisions Act, at 20 U.S.C. 1232a, which bars federal officials from exercising "direction, supervision, or control" over the curriculum and program of instruction of any educational institution.

One: the law says Washington may not direct curriculum

Begin with the statute, because the whole irony depends on it. The Constitution says nothing about education. The Tenth Amendment reads, in full: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Congress, over the decades, has funded schools through its spending power but has been careful, in the text of federal law, to say it is not taking control of what is taught.

The GEPA provision is explicit. No federal law is to be construed to authorize any federal department, officer or employee to exercise direction, supervision or control over the curriculum, program of instruction, administration or personnel of any educational institution. A similar prohibition appears in the statute that created the Department of Education in 1979. Congress promised in so many words that the new department would not become a national school board.

That is the formal position. Everything that follows is about how the position was honored in letter and evaded in practice.

Two: the origin, a state-led project

The standards began with governors, not with Washington. In 2009 the National Governors Association and the Council of Chief State School Officers launched an initiative to write shared standards in English and math. Writing teams were assembled, drafts were circulated, and the final standards were released in June 2010. The organizations that led the project were private associations of state officials, not federal agencies, and that is why defenders of the standards can say, truthfully, that the federal government did not write them.

I want to be fair to that point. Shared standards are not, by themselves, an assault on federalism. States may voluntarily agree on common benchmarks, as they do with bar exams and driver's licenses. If forty states had reviewed a good set of standards on their merits and adopted them by their own legislatures after debate, there would be no story here.

That is not what happened.

Three: the carrots

The Obama administration's economic stimulus law of 2009, the American Recovery and Reinvestment Act, set aside several billion dollars for a competitive program the administration named Race to the Top. States applied for the money, and the Department of Education scored the applications against a published rubric. The rubric awarded points for adopting what it called a common set of college- and career-ready standards, and for joining a consortium to build tests aligned to them. A state that wanted the grant, in the middle of a recession when state budgets were collapsing, had a strong reason to adopt standards that earned points.

The timing is what makes the account hard to wave away. The standards were not finished until June 2010, but the first round of Race to the Top applications was due in January 2010 and the second in June, and a state could earn points only by adopting by the summer deadline. Kentucky became the first state to adopt, in February 2010, on the strength of a draft, and several others adopted provisionally before the final version existed. Whatever one says about the merits, a state that adopts a standard still in draft, on the strength of a grant rubric, is not deliberating freely.

In addition, the Department directed hundreds of millions of dollars to fund two consortia that wrote the tests aligned to the new standards, which is to say that federal money paid for the tests that every adopting state would soon be required to give.

Four: the stick, waivers from No Child Left Behind

The second lever was the waiver. The No Child Left Behind Act of 2002 required that every student be proficient in reading and math by 2014, and as that deadline approached, it became arithmetically impossible for most schools to meet. Schools were labeled failing in large numbers, and Congress did not rewrite the law.

So the administration offered states a way out. Beginning in 2011 and 2012, a state could apply for a waiver from key requirements of the law, if it agreed to conditions set by the Department. One of those conditions was that the state adopt college- and career-ready standards. A state had two ways to qualify: adopt standards common to a significant number of states, which in practice meant Common Core, or have the standards certified by its public university system as preparing students for college without remediation.

A state could, in theory, choose the second path. In practice it was harder, slower and riskier than signing up for the Core, and the threat behind the waiver was the penalty for refusal: the state's schools would continue to be labeled failures under the old law. The point is not that any state officer was held at gunpoint. The point is that the choice was structured so that one answer was easy and the other was costly. An offer of that kind has a name in constitutional law, and it is not "voluntary."

The steelman: "Nobody was forced"

The defense deserves its best form. It runs like this: Congress writes the rules for the money it appropriates. States are free to decline federal funds. The Supreme Court has long held that Congress may attach conditions to federal grants, as in South Dakota v. Dole (1987), and that the limit comes only when the pressure is so great that it amounts to compulsion, as in NFIB v. Sebelius (2012), where seven justices found that the threat to withdraw a state's entire existing Medicaid funding was a gun to the head. Nothing about Race to the Top or waivers came close. States that did not want the Core, like Texas, Alaska, Nebraska and Virginia, did not adopt it and suffered no catastrophe.

That is a legitimate legal point, and it is why I think the best objection to the Common Core approach was never in the courtroom. Whether a grant condition passes the Dole test is a question for lawyers. Whether Washington may use money to steer the curriculum of every school in the country, in the face of a statute that says it may not, is a question about whether Congress's own promise means anything.

The answer, in numbered points:

1. The statute forbids direction, and "direction" is a result, not a method. If the aim of a rule is to prevent federal control of curriculum, then using money to produce the same standards in forty-plus states is the thing the rule was written to prevent. A law cannot be honored by observing the form of its words while defeating its purpose.
2. The conditions made refusal expensive during a fiscal crisis. The grants were offered at the moment state budgets were weakest.
3. Adoption preceded deliberation. States committed before the text was final, and legislatures were often bypassed, since state boards of education or education commissioners acted alone.
4. A national standard narrows what states may try. Once the tests and textbooks follow one set of standards, a state that wants something different faces a market built for the other thing.

A worked example, labelled hypothetical

Picture a state education commissioner in the spring of 2010. This is an invented composite, not a real person. His state's budget has a hole in it. A federal competition is offering a large pot of money, and the scoring sheet says that states committed to common standards will score higher. The final standards are weeks from release. His staff tells him that if the state waits, other states will score the points first, and that the state's legislature is out of session until January.

What does he do? He does what almost any official in his position would do. He signs the memorandum of agreement and tells himself he will review the text when it arrives. No one has ordered him. No one has threatened him. And yet the decision has been made for him, by a scoring rubric, in a room he was not in.

Now run the same story for the waiver, two years later. The commissioner's schools are about to be labeled failures under a federal law that nobody expects to be repealed, and the waiver is the one door out. The conditions are in a letter. The letter says "college- and career-ready standards." He knows which standards are the safe ones, because the federal reviewers have said so. Again, no order. Again, no real choice.

A system of conditions on money works exactly this way. It never needs to give an order, because it arranges things so that the order is unnecessary. That is the genius of the method, and it is why the plain words of the prohibition in 20 U.S.C. 1232a were not enough to stop it. A rule against commanding is no protection against arranging.

I find it useful to ask a simple question of any federal education program: if the money vanished tomorrow, would the state still do it? Where the answer is no, the money is not support for a state policy. It is the policy.

Five: the backlash

The states themselves answered, and their reaction is the best evidence that adoption had not been the product of deep conviction. Within a few years, a wave of states repealed, revised, renamed or withdrew from the standards. Indiana was among the first to formally withdraw, in 2014. Oklahoma repealed them the same year. Many other states kept most of the content but changed the name, a tactic that suggests the real fight was over who owned the decision.

Parents objected to the way math was being taught and to the length and stakes of the aligned tests. Teachers objected to being evaluated on them. Legislators on both left and right objected to the process by which a national set of standards had arrived. The New Math of 1960 Flopped, and Today's Math Fights Keep Repeating It shows that the argument over how children should be taught mathematics is far older than the Core.

Six: ESSA, the correction

Congress itself concluded that something had gone too far. In December 2015 President Obama signed the Every Student Succeeds Act, which replaced No Child Left Behind. Among its provisions, ESSA bars federal officials from mandating or controlling a state's academic standards through grants, contracts or cooperative agreements, and from conditioning or incentivizing grants, priorities, preferences or waivers on the adoption of particular standards, including the Common Core. The provision is codified in the Elementary and Secondary Education Act, at 20 U.S.C. 7906a, with a general bar on federal control of curriculum at 20 U.S.C. 7907, and I would encourage you to read both on Congress.gov.

Read the logic of that. Congress, which wrote the original prohibition against federal direction of curriculum, passed a second one that specifically bans the techniques used in 2009 to 2012. A legislature does not outlaw a thing that never happened. The 2015 law is, in effect, a bipartisan confession that the carrot and the waiver had been used to steer standards, and a promise not to do it again.

Seven: what it teaches about the administrative state

This episode illustrates, with unusual clarity, how the federal government actually expands its reach in areas the Constitution reserves to the states: not by statute declaring a power, but by conditions on money, interpretations of waivers, guidance letters and rubrics. The pattern is described in Who Actually Runs Your School District, Board, Superintendent or State, and it recurs in many policy areas, from highway funding to Title IX enforcement, covered in Title IX Began as 37 Words in 1972, Here Is How It Grew Into a Rulebook. You can follow the volume of federal rulemaking at the red-tape tracker.

The Founders feared concentrated power, not just overt tyranny. Madison wrote in Federalist No. 51 that the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The states' departments of education had every motive to resist, and in 2010 most of them did not, because the Treasury had made the alternative expensive.

None of this says the content of the standards is evil or that every state that adopted them acted in bad faith. Some of the standards are reasonable. The question is who decides, and the answer under the Tenth Amendment is the states and the people.

The case in brief

1. Federal law, in GEPA and in the Department of Education's own organic act, forbids federal direction of curriculum.
2. The Common Core was written by governors and state officials in 2009 and 2010, and Washington then rewarded adoption through Race to the Top points and through No Child Left Behind waivers.
3. States adopted standards in a recession, often before the final text existed, and legislatures were often bypassed.
4. The states pushed back, and in 2015 Congress banned the same incentives in ESSA, a quiet admission of what had occurred.
5. The lesson is that federal control now arrives through conditions on money, and the remedy is state legislatures that reclaim the decision.

What you can do: look up your state's current academic standards on your state department of education's website, find which body adopted them and when, and ask your own legislator whether the legislature has ever debated them.