An Anti-Antiracist Federal Curriculum is Neither Patriotic nor Legal. Discuss.

An Anti-Antiracist Federal Curriculum is Neither Patriotic nor Legal. Discuss.

The Trump Administration recently waded into waters reserved – not only by tradition but also by federal law – for state and local educational agencies: what curriculum is taught in public schools. Most significantly, the President threatened to withhold federal education funding from the state of California if it uses the 1619 Project curriculum. In a September 17 speech delivered at the White House Conference on American History, he described that particular curriculum (and other anti-racist approaches) as “toxic propaganda, ideological poison that, if not removed, will dissolve the civic bonds that tie us together.” He also announced the creation of a 1776 Commission that would “promote patriotic education” and a National Endowment for the Humanities grant that would fund the creation of “a pro-American curriculum that celebrates the truth about our nation’s great history.”

Many education and legal experts quickly pointed out that federal law prohibits the federal government from getting involved in state and local decisions about curriculum. Most cited Section 8526A of the major federal education statute, the Every Student Succeeds Act (ESSA), which states:

No officer or employee of the Federal Government shall, through grants, contracts, or other cooperative agreements, mandate, direct, or control a State, local educational agency, or school’s specific instructional content, academic standards and assessments, curricula, or program of instruction developed and implemented to meet the requirements of this Act.

It is worth noting that 8526A is just one of multiple provisions throughout ESSA where Congress made clear that the federal government has no jurisdiction regarding curriculum.

And Congress hasn’t limited itself to this latest version of the Elementary and Secondary Education Act. The prohibitions on federal involvement in curriculum predate ESSA and have been a point of bipartisan consensus.

Further, Congress has drawn this bright line in other federal education laws. The General Education Provisions Act (GEPA), which includes various statutes that govern U.S. Department of Education programs and functions, also prohibits any “direction, supervision, or control” by federal officials over “curriculum, program of instruction” or “selection of library resources, textbooks, or other printed or published instructional materials.” Indeed, in the very founding of the U.S. Department of Education itself, Congress included similar prohibitions about curriculum in the Department of Education Organization Act (DOA).

At the end of this post, we have collected the relevant ESSA, GEPA, and DOA prohibitions. Although it only takes a single law to make something illegal, the collective weight of the list highlights just how clear a line the Administration is threatening to cross. Congress has clearly and repeatedly outlawed federal intrusion into state and local curricular decisions.

Finally, taking off our legal hats and putting on our educational ones, we close by noting that an anti-racist curriculum is a patriotic one. It is perfectly consistent for local or state curriculum to help students appreciate our nation’s successes and aspirations while also confronting our failures and reckoning with the ways we have simultaneously oppressed some people and privileged others.

Our public schools must be places in which all students, especially students of color and those from marginalized identities, see themselves in our shared history. To achieve that, we must directly confront how Black, Indigenous, and people of color communities built and supported the means of achieving the American Dream yet were so often systematically excluded from it.

But the multiple laws listed below are crystal clear: whatever one’s beliefs about what is or isn’t patriotic, the federal government cannot control local and state decisions about the curricula taught in their public schools, including the adoption of an anti-racist curriculum.

As an organization committed to educational equity, we support all (legal) efforts to confront our shared racist past so that we can be better in the present and future.

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Citations to federal laws that prohibit federal involvement in curriculum are available below and also here.

Every Student Succeeds Act (ESSA) –

Title II. Preparing, Training, and Recruiting High-Quality Teachers, Principals, and Other School Leaders; Part C. General Provisions.

Sec. 2302. Rules of Construction.

  • PROHIBITION AGAINST FEDERAL MANDATES, DIRECTION, OR CONTROL. — Nothing in this title shall be construed to authorize the Secretary or any other officer or employee of the Federal Government to mandate, direct, or control a State, local educational agency, or school’s—
  • instructional content or materials, curriculum, program of instruction, academic standards, or academic assessments;
  • teacher, principal, or other school leader evaluation system;
  • specific definition of teacher, principal, or other school leader effectiveness; or
  • teacher, principal, or other school leader professional standards, certification, or licensing.

Title V. Flexibility and Accountability; Part C. Prohibition Against Federal Mandates, Direction, or Control.

Sec. 5301. PROHIBITION AGAINST FEDERAL MANDATES, DIRECTION, OR CONTROL.

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 standards and assessments, curriculum, or program of instruction, as a condition of eligibility to receive funds under this Act.

Title VIII. General Provisions; Part F. Uniform Provisions.

Sec. 8526A. PROHIBITION AGAINST FEDERAL MANDATES, DIRECTION, OR CONTROL.

  • IN GENERAL.—No officer or employee of the Federal Government shall, through grants, contracts, or other cooperative agreements, mandate, direct, or control a State, local educational agency, or school’s specific instructional content, academic standards and assessments, curricula, or program of instruction developed and implemented to meet the requirements of this Act (including any requirement, direction, or mandate to adopt the Common Core State Standards developed under the Common Core State Standards Initiative, any other academic standards common to a significant number of States, or any assessment, instructional content, or curriculum aligned to such standards), nor shall anything in this Act be construed to authorize such officer or employee to do so.
  • FINANCIAL SUPPORT.—No officer or employee of the Federal Government shall condition or incentivize the receipt of any grant, contract, or cooperative agreement, the receipt of any priority or preference under such grant, contract, or cooperative agreement, or the receipt of a waiver under section 8401 upon a State, local educational agency, or school’s adoption or implementation of specific instructional content, academic standards and assessments, curricula, or program of instruction developed and implemented to meet the requirements of this Act (including any condition, priority, or preference to adopt the Common Core State Standards developed under the Common Core State Standards Initiative, any other academic standards common to a significant number of States, or any assessment, instructional content, or curriculum aligned to such standards).

Sec. 8527. PROHIBITIONS ON FEDERAL GOVERNMENT AND USE OF FEDERAL FUNDS.

  • GENERAL PROHIBITION.—Nothing in this Act shall be construed to authorize an officer or employee of the Federal Government, including through a grant, contract, or cooperative agreement, to mandate, direct, or control a State, local educational agency, or school’s curriculum, program of instruction, or allocation of State or local resources, or mandate a State or any subdivision thereof to spend any funds or incur any costs not paid for under this Act.
  • PROHIBITION ON ENDORSEMENT OF CURRICULUM.—Notwithstanding any other provision of Federal law, no funds provided to the Department under this Act may be used by the Department, whether through a grant, contract, or cooperative agreement, to endorse, approve, develop, require, or sanction any curriculum, including any curriculum aligned to the Common Core State Standards developed under the Common Core State Standards Initiative or any other academic standards common to a significant number of States, designed to be used in an elementary school or secondary school.
  • LOCAL CONTROL. — Nothing in this section shall be construed to—
  • authorize an officer or employee of the Federal Government, whether through a grant, contract, or cooperative agreement to mandate, direct, review, or control a State, local educational agency, or school’s instructional content, curriculum, and related activities;
  • limit the application of the General Education Provisions Act (20 U.S.C. 1221 et seq.);

(d) PROHIBITION ON REQUIRING FEDERAL APPROVAL OR CERTIFICATION OF STANDARDS. —

  • IN GENERAL. — Notwithstanding any other provision of Federal law, no State shall be required to have academic standards approved or certified by the Federal Government, in order to receive assistance under this Act.
  • RULE OF CONSTRUCTION.—Nothing in this Act shall be construed to prohibit a State, local educational agency, or school from using funds provided under this Act for the development or implementation of any instructional content, academic standards, academic assessments, curriculum, or program of instruction that a State, local educational agency, or school chooses, as permitted under State and local law, as long as the use of such funds is consistent with the terms of the grant, contract, or cooperative agreement providing such funds.

Sec. 8549A SENSE OF CONGRESS

  • — The Congress finds as follows:
  • This Act prohibits the Federal Government from mandating, directing, or controlling a State, local educational agency, or school’s curriculum, program of instruction, or allocation of State and local resources, and from mandating a State or any subdivision thereof to spend any funds or incur any costs not paid for under this Act.
  • SENSE OF CONGRESS. — It is the sense of the Congress that States and local educational agencies retain the rights and responsibilities of determining educational curriculum, programs of instruction, and assessments for elementary and secondary education.

General Education Provisions Act (GEPA) – 

Sec. 438. PROHIBITION AGAINST FEDERAL CONTROL OF EDUCATION

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, or to require the assignment or transportation of students or teachers in order to overcome racial imbalance.

Department of Education Organization Act (DOA) –

Title I. General Provisions.

Sec. 103. FEDERAL-STATE RELATIONSHIPS

  • 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. The establishment of the Department of Education shall not increase the authority of the Federal Government over education or diminish the responsibility for education which is reserved to the States and the local school systems and other instrumentalities of the States.
  • No provision of a program administered by the Secretary or by 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.

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