Did Congress Authorize Race to the Top?

The American Recovery and Reinvestment Act of 2009 set aside roughly $5 billion to be used by the U.S. secretary of education to make incentive grants to states that “have made significant progress” in meeting four objectives: achieving equity in teacher distribution, improving collection and use of data, enhancing standards and assessment, and supporting struggling schools.

There is nothing in the text of the ARRA, or in the portions of the two other statutes to which it points (the Elementary and Secondary Education Act and the America Competes Act), that authorizes, requires, or even suggests that states competing for funds would need to adopt common state standards, create more charter schools, evaluate teachers and principals based on gains in student achievement, emphasize the preparation of students for careers in science, technology, engineering, and mathematics, or restructure the lowest 5 percent of their schools.

Yet the grant program the administration designed to implement the provisions of the ARRA, the U.S. Department of Education’s Race to the Top initiative, included each of these policy priorities, and states had no chance of winning unless their applications were built around them.

Consider common state standards, one of the components of Race to the Top that isn’t anticipated in the economic-stimulus legislation. States applying for competitive funds under the grant program were informed ahead of time that they would receive up to 40 of the 500 available points for “developing and adopting common standards.” No points were available for states developing or improving their own standards.

Of course, every state intending to apply for funding then signed on to the Common Core State Standards Initiative, the only game in town meeting the conditions laid down for the Race to the Top. To make sure they got the points for “adopting” common standards, many states committed in their applications to replacing their current standards with the common standards, even though at the time the applications were being written, late last fall, the common standards were sight unseen.

But, whereas the Education Department’s program requires common state standards, the ARRA legislation says that the standards must be developed consistent with section 6401(e)(1)(A)(ii) of the America Competes Act, which authorizes only the support of individual states in their efforts to develop their own standards.

Another instance of mismatch between the requirements for the Race to the Top and the American Recovery and Reinvestment Act is in the handling of low-performing schools. The ARRA requires that efforts to support such schools be consistent with the requirements of the Elementary and Secondary Education Act for school restructuring. Those allow five administrative options for a persistently low-performing school, including the open-ended “any major restructuring of the school’s governance arrangement that makes fundamental reforms.”

The Race to the Top initiative substitutes the phrase “turning around our lowest-achieving schools” for the language of “supporting struggling schools” in the ARRA, defines low-performing schools entirely differently from how the ESEA does, and requires that applicants impose one of four newly defined intervention models on those schools, rather than one of the five options in the ESEA.

Beyond these specifics, the purpose of the Race to the Top as described by the Education Department—innovation and reform—has no basis in the ARRA. These terms do not appear in the “state incentive grants” section of the law. Rather, the reasonable reading of the language of the ARRA is that states would compete based on their prior success in raising student achievement, assuring an equitable distribution of teachers, building longitudinal databases, improving standards and assessments, and supporting struggling schools, along with the quality of their plans for continuing to make progress.

Since the winners under the conditions of competition suggested in the ARRA would be the states that had already done the best job, they would be the states least likely to need dramatic reforms. The expressed intent of the ARRA, to reward states that had made the most progress, was transformed in the Race to the Top to rewarding states that could best articulate and achieve statewide buy-in for a reform agenda that suited the administration.

The two winners from the first round of competition were Delaware and Tennessee. U.S. Secretary of Education Arne Duncan singled out the courage of the reforms proposed by these two states, as well as statewide buy-in, as the factors that made them stand out in the competition. He did not mention the significant progress they had already made in meeting the objectives listed in the ARRA. He could have done that for Delaware, which has a history of success, but it would have been embarrassing to try to lift Tennessee onto that pedestal.

In taking considerable license with the American Recovery and Reinvestment Act to fund its own priorities, the administration has furthered its education agenda as cash-strapped states chase Race to the Top grants. Provisions of the education initiative that would have been difficult to obtain in federal legislation and weren’t mentioned in the ARRA, such as the lifting of caps on charter schools, have now been put in place legislatively in several states in order for them to be competitive for Race to the Top grants.

The priorities imposed by the secretary in Race to the Top are in favor in education reform circles. Perhaps that is why there has been so little criticism of the process. Even states that would have been certain winners if the competition had been based on past accomplishment, such as Massachusetts and Florida, have not complained publicly. Such is the power of the $3.4 billion still on the table for the next round of competition.

I applaud many of the Obama administration’s priorities for education, and cannot but admire the boldness of its strategy for the American Recovery and Reinvestment Act and the quality of its tactical implementation. But it is a mistake in principle—and a danger in reality—to allow any U.S. secretary of education this much policy discretion when doling out large sums of money. If you like Arne Duncan, as I do, then think of the person you would least like to be secretary of education ensconced in that Cabinet post with $5 billion to play with.

Although my argument has been focused on the divergence between the language of the ARRA and the Race to the Top, my point is not narrowly legalistic. Based on the ARRA itself, I don’t think Congress intended to give Secretary Duncan the carte blanche he took. But even if it did, once was enough. This issue is real, because the administration has proposed that the Race to the Top be an annual competition.

It used to be that Bill Gates was the most powerful education philanthropist in America. Thanks to the Race to the Top, that mantle has passed to Arne Duncan. Do we want to make that the permanent status of U.S. secretaries of education?

The legislative process is messy, but we are better served in the long term by allowing our elected representatives to decide on the education policies we are to pursue as a nation, rather than having them dictated to us by the executive branch under the guise of a grant program to reward reform and innovation.