In communities across America, parents and students are increasingly opting out of onerous standardized tests being pushed by the Department of Education. These assessments, which are directly related to both Common Core and No Child Left Behind, often put young children in high-pressure testing situations for hours on end. In fact, the length of some of these tests is comparable to state bar examinations for aspiring attorneys. And to boot, educational experts are increasingly finding that these tests have little, if any, educational value for children.  The context behind this nationwide opt out movement, and the Department of Education’s response, is a prime example of Executive overreach at work in a very intimate part of American family life.

The No Child Left Behind Act of 2001 (NCLB) was passed with the intent of improving public schools nationwide. The law dedicates federal funds to entice schools into improving their standards. Such a broad plan required some sort of measurable, which NCLB’s framers developed in the form of “adequate yearly progress” (AYP). A state demonstrates AYP by testing at least 95 percent of its students in the manner prescribed under the law.

The Executive Branch is charged with enforcing our nation’s laws, including NCLB. So, we must turn to the law to see what sort of penalties exist for failure to comply, and how these penalties are to be administered by the Executive Branch. Unfortunately, we will find that the Department of Education is using NCLB as a tool to threaten the opt out movement with penalties that have no root in enacted legislation, but rather grow out of the Executive’s own policy priority in favor of standardized, top-down education.

First, we have to examine what sort of legal, legislatively enacted penalties exist for schools that fail to demonstrate AYP. The law does in fact provide for certain financial penalties if a school fails to show the requisite progress each year. However, these penalties apply only to schools receiving Title I funds – typically low-performing schools with high numbers of children from low-income families. Nothing in NCLB authorizes the withholding of other forms of federal aid. Regardless, the discussion is becoming increasingly irrelevant, as the Obama administration has granted waivers from federal penalties for most schools. On top of that, even in states without waivers where at least 95 percent of students are taking the tests, many students are not scoring high enough to constitute AYP.

So, under the legislatively enacted NCLB program, it does not appear that schools anywhere are at risk of losing federal funding. But try telling that to the Department of Education, which is actively misleading parents and schools into believing that if they do not submit their children to these assessments, they risk losing federal funds.

Monty Neil of the National Center for Fair and Open Testing has noted that the Executive Branch, through the Department of Education, “confound[s] the law’s requirement that states administer a testing system that covers all children with the non-existent requirement that all children take the test. They imply that a state that allows opting out is at risk of violating NCLB, even though seven states…already have such provisions and none has lost a penny in federal funding…” This is another way of saying that without any sort of legislative mandate, the Department of Education is bullying parents into submitting their children to unnecessary, onerous, and largely useless bouts of testing.

Despite the lack of any legislation forbidding parents or states to opt out of federal testing requirements, the Department of Education is taking a hard stand against the practice. For example, Assistant Education Secretary Deborah Delisle suggested that state superintendents may pressure parents not to opt out. Already in Maine, the State Department of Education is threatening to withhold diplomas from students who fail to take the assessments. While this is a state department at work, it almost certainly has the Department of Education breathing down its back, as do other state educational departments nationwide.

In North Carolina, when faced with difficult policy and legal issues such as these, we return to our number one rule of thumb, found in Article I, Section 35 of our state constitution:

“A frequent recurrence to fundamental principles is absolutely necessary to preserve the blessings of liberty.”

At its core, the opt out debate is about the role of the Executive in crafting extra-legislative policy. The Executive is charged with the carrying out of our nation’s laws, and in doing so must interpret those laws to some extent. But to add entirely additional requirements or penalties to a law – like threatening states with the loss of federal education funding if students opt out of assessments – is far beyond the proper role of the Executive Branch. Doing so crosses the threshold from enforcing duly authorized laws into adding completely separate requirements based on the Executive Branch’s own policy preferences.

The problem of Executive overreach is one that greatly concerned the framers of our constitutional system. How does one provide for a branch of government that has physical military power, and yet not have that branch completely dominate the others? The framers had several responses to this question, the most important of which was to separate the spending power from the Executive in Article I, Section 8 of the United States Constitution:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, and to pay the Debts and provide for the common Defense and general Welfare of the United States.

This power is given explicitly to Congress, and no other branch. The intent of this separation was to keep the Executive Branch in the business of enforcing laws, and leave decisions about framing law and policy to the people’s representatives in Congress. Requiring the states to agree on policy in Congress, rather than allowing centralized policymaking from the Executive Branch, was one of the many ways that our Founders sought to maintain the separate states as “laboratories of experimentation” for a multitude of ideas.

Unfortunately, this system has broken down, and children nationwide are now paying the consequences. By threatening schools, parents, and students nationwide with penalties that have no root in the law, the Executive Branch is imposing its own policy preference in favor of standardized education and continuous testing – all this while insisting that these testing requirements are part of a “state-led” initiative. Such actions are far beyond the legitimate reach of the Executive Branch, and are certainly beyond what our Founders intended for our nation. If Congress does not step in and clarify that the executive is overreaching, then it may be left up to that third branch – the Courts – to put the Executive back in its proper role of enforcing, not creating, our nation’s laws.

Elliot Engstrom is an attorney with the Civitas Institute Center for Law and Freedom,

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3 replies
  1. Barb Zack
    Barb Zack says:

    Our government is becoming more increasingly bullying and punitive, instead of protecting our freedoms. We constantly about how the government will punish this or that group if they don’t comply with increasingly onerous laws, regulations and the like. the Framers founded our government on the principles of freedom, liberty, property rights and the government’s role was to defend our rights. When did our government become our punisher instead of our protector?

  2. Ron
    Ron says:

    “You can fool all of the people some of the time,” and “ask forgiveness, not permission,” seem to be the Standard Operating Procedure of the LiPro (Liberal Progressive) crowd. This is great practical information that all of us can use in our own communities. Parents don’t know all these little legal provisions and are more likely to believe LiPro school administrators who proclaim them to be required of all students. Thanks for the explanation Mr. Engstrom.


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