BNUMBER: B-278968
DATE: May 28, 1998
TITLE: Legality of national education testing sponsored by Dept. of
Edu, B-278968, May 28, 1998
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Subject: Legality of national education testing sponsored by Dept. of
Education
File: B-278968
Date: May 28, 1998
B-278968
May 28, 1998
The Honorable William F. Goodling
Chairman, Committee on Education and the Workforce
House of Representatives
The Honorable Robert L. Livingston
Chairman, Committee on Appropriations
House of Representatives
Dear Mr. Chairmen:
In February 1997, the Administration proposed voluntary national
testing of the reading proficiency of students in fourth grade, and of
the mathematics proficiency of eighth grade students. Members of
Congress voiced concern about this program which ultimately culminated
in a provision of the appropriation act for the Department of
Education for this fiscal year prohibiting the Department from using
fiscal year (FY) 1998 appropriations to field test, pilot test,
implement, administer, or distribute any national tests.[1]
Except for funding a study specifically authorized by Congress, the
Department of Education reports that it has not used any FY 1998 funds
in support of national testing.[2] However, beginning in FY 1999, the
Department intends to initiate pilot testing, to be followed by field
testing in March 2000, and the first national testing of fourth and
eighth grade students is planned for March 2001.
You have asked us to examine the Department's legal authority to
develop and conduct national testing. Specifically, you asked us to
address whether the Department has authority: (1) after FY 1998
(assuming that the prohibition in the FY 1998 appropriation act is not
renewed and permanent legislation forbidding such a program or
expenditure is not enacted) to use appropriated funds to develop and
conduct the national testing of fourth grade reading and eighth grade
mathematics, and (2) to spend funds on national testing of fourth
grade reading and eighth grade mathematics proficiency if funds for
those purposes have not been specifically requested in the President's
budget.
In summary, the Department's position -- that its organic legislation
provides it with the authority to develop and conduct national tests
-- is a permissible reading of the law. In addition, the lack of a
specific budget request for national testing for FY 1998 does not
preclude the Department from making such an expenditure from a
lump-sum appropriation available to it for nationally significant
programs and projects to improve the quality of education. A more
detailed discussion follows.
The Clinton Administration Testing Proposal
Your questions focus on the voluntary national testing initiative
proposed by President Clinton in February 1997.[3] Under this
initiative, states or local school districts could volunteer to
participate in national testing. The tests would measure the reading
achievement of fourth grade students and the mathematics achievement
of eighth grade students against national content and performance
standards derived from the National Assessment of Educational Progress
(NAEP).[4] Unlike NAEP tests (where students each take only a part of
the test and results of individual students and their schools remain
confidential), under the new testing initiative students would take
the entire test and results on individual student and school
performance could be made available.
Legal Authority to Conduct National Tests
The Department believes that its organic legislation authorizes it to
conduct the proposed national tests.[5] This authority is not
explicit in the law; the Department relies on its broad statutory
authority to conduct a set of programs under the rubric of the Fund
for the Improvement of Education (FIE).[6]
Unless the Department's interpretation of the law lacks a rational
basis, it is permissible. The Supreme Court has said that when "'a
statute is silent or ambiguous with respect to a specific issue, the
question for the court is whether the agency's answer is based on a
permissible construction of the statute.' . . . If the agency's
reading fills a gap or defines a term in a reasonable way in light of
the Legislature's design, we give that reading controlling weight . .
. ."[7]
We believe that the Department's interpretation is permissible, and
must therefore be accorded the weight of which the Court speaks.
Under the FIE program, the Secretary of Education may "support
nationally significant programs and projects to improve the quality of
education . . . ."[8] This includes "activities that will promote
systemic education reform at the State and local levels," by such
means as developing and evaluating "model strategies for . . .
assessment of student learning."[9] Other authorized uses of FIE
funds include "activities to raise standards and expectations for
academic achievement among all students" and "other programs and
projects that meet the purposes of the section."[10]
These provisions support the Department's position that it has legal
authority to develop and conduct the proposed national tests. It is
not necessary that each action of a federal agency be specifically
authorized by the Congress; an action must only be "reasonably within
the contemplation of [the] grant of authority."[11] We believe that
condition is met here. While the law creating the FIE program does
not explicitly refer to national testing, testing may legitimately be
described as an activity intended to "improve the quality of
education" or to "promote systemic education reform." Moreover, the
reference in the law to "nationally significant programs" supports the
idea of testing on a national basis.
Some have suggested that the Congress in effect prohibited the
Department of Education from conducting national testing, by its 1994
amendment of the Elementary and Secondary Education Act of 1965. The
effect of that amendment was to omit from the Act the explicit
authority for a national test that had been previously been included
in it. Neither the 1994 law nor its legislative history supports this
interpretation.
Until 1994, the Elementary and Secondary Education Act of 1965, as
amended, included express authority for a specific national test under
a program called the Fund for Innovation in Education (the Innovation
Fund).[12] The Department was authorized to approve or develop
"Optional Tests for Excellence"--comprehensive tests of academic
excellence to identify outstanding public and private school students
in the 11th grade--and to award certificates to students scoring
well.[13]
In 1994, the Congress removed from the law the specific authority for
the Optional Tests for Excellence, while simultaneously enacting the
broad new authority for the FIE that, as discussed above, authorizes
national testing by implication. As part of an amendment of various
elements of the Elementary and Secondary Education Act of 1965, and
without specific explanation, the authority for the Innovation Fund,
including the Optional Tests for Excellence, was omitted from the
law.[14]
In taking these actions, the Congress did not manifest any intention
to restrict the authority of the Department to conduct national
testing. The same 1994 law that omitted authority for the Innovation
Fund created the FIE program which, as discussed above, authorizes
activities consistent with broad-based national testing. The omission
of the narrowly-targeted authority for Optional Tests for Excellence,
without more, does not warrant the conclusion that the Congress
intended thereby to block national testing for other purposes.[15]
The legislative history, while it does not directly address the issue,
supports the interpretation that the 1994 law did not prohibit all
national testing. The House report explaining the 1994 amendments
observes that FIE replaces several discontinued education improvement
programs and consolidates a number of current programs. The report
describes the new authority as "more flexible than current law which
only funds specific educational approaches" and says that the new
authority permits the Secretary to "support a broad range of projects
of national significance related to high standards and education
reform."[16] This is consistent with the conclusion that the 1994
amendments were intended, not to deprive the Department of testing
authority, but to permit, among other things, "assessment of student
learning."
Authority to Expend Funds for Program Not Included in Budget
Although the budget request for the Department of Education for FY
1998 did not mention testing, funds appropriated to the Department
would have been available for that purpose, were it not for the
prohibition in the appropriation act. The appropriation act provided
funds for the FIE program which, as discussed above, includes
authority broad enough to support national testing.
The Department's FY 1998 budget request asked for more than $510
million as a lump sum for the Office of Educational Research and
Improvement (OERI).[17] OERI is the unit in the Department that has
responsibility for the FIE program, and that would therefore plan and
implement national testing. The OERI budget request proposed funding
for FIE, but did not mention national testing. The Secretary
explained that the budget documents had been "sent to print before the
President made the decision to go forward" with national testing.[18]
In hearings on the appropriation request, the Secretary said that
authority for national testing exists under the FIE program, and that
initial costs of developing the tests would be absorbed within the
funding for FIE.[19]
When it ultimately acted on the FY 1998 appropriations act, the
Congress provided approximately $431 million for OERI.[20] The
conference report indicated an expectation that, of this amount, $108
million would be for FIE.[21]
The lack of a budget request for a specific item does not preclude an
expenditure for that item from a lump-sum appropriation which is
otherwise available for items of that type.[22] In upholding the
authority of an agency to use its appropriation for an activity not
mentioned in its budget request, we said that "in the absence of a
specific limitation or prohibition in the appropriation under
consideration . . ., [the agency] would not be legally bound by [its]
budget estimates or the absence thereof."[23]
Accordingly, in the absence of the prohibition discussed above,[24]
the Department's FY 1998 appropriation for OERI would be available for
expenses related to national testing, notwithstanding that testing was
not an element in the underlying budget request.
If you or your staff have any questions, please call me at (202)
512-5400.
Sincerely yours,
Robert P. Murphy
General Counsel
1. Departments of Labor, Health and Human Services, and Education, and
Related Agencies Appropriations Act, 1998, Pub. L. No. 105-78, sec.
305(a) (1997).
2. A contract for $1.8 million, for test bias and equivalency scale
studies, was awarded in February 1998 to the National Academy of
Sciences, pursuant to sections 306(a) and 308, Pub. L. No. 105-78.
Funds for developing national tests had been obligated in the prior
fiscal year, FY 1997, from the appropriation to the Department of
Education for activities including the Fund for the Improvement of
Education, authorized by sec. 10101, Elementary and Secondary Education
Act of 1965, as amended, 20 U.S.C. sec. 8001.
3. We note that no dispute exists with regard to the Department of
Education's authority to conduct or participate in two national tests,
the Third International Mathematics and Science Study (TIMSS) and the
National Assessment of Educational Progress (NAEP). TIMSS is a
comparative achievement test of samples of students in fourth, eighth,
and twelfth grades, from 41 nations, in which over 33,000 U.S.
students from more than 500 schools were randomly selected to
participate. TIMSS is authorized by a provision of the National
Education Statistics Act of 1994 that permits the Department to
acquire and disseminate data on student achievement as compared to
other nations. Pub. L. No. 103-382, Title IV,
sec. 404(a)(6) (1994), 20 U.S.C. sec. 9003(a)(6).
4. NAEP is a test of educational achievement in reading, writing, and
other subjects, using sampling techniques, that produces results not
only for the nation as a whole but also results for each of the
participating states. The NAEP is specifically authorized by section
411 of the National Education Statistics Act of 1994. Pub. L. No.
103-382, Title IV (1994), 20 U.S.C. sec. 9010.
5. The Department acknowledges that the appropriation act prevents it
from exercising this authority using FY 1998 funds.
6. Elementary and Secondary Education Act of 1965, as amended, sec.
10101, 20 U.S.C.
sec. 8001.
7. Regions Hospital v. Shalala, __ U.S. ___, 118 S. Ct. 909, 915
(1998), quoting Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 843 (1984).
8. Elementary and Secondary Education Act of 1965, as amended, sec.
10101(a).
9. See id. sec. 10101(b)(1).
10. See id. sec. 10101(b)(S), (Q).
11. National Ass'n of Pharmaceutical Mfrs. v. FDA, 637 F.2d 877,
888-889 (2d Cir. 1981), quoting Chrysler Corp. v. Brown, 441 U.S. 281,
306-308 (1979) (the cases deal with whether regulations promulgated by
an agency were within the scope of the grant of legislative authority
to the agency.)
12. The Innovation Fund was authorized by section 4601 of the
Elementary and Secondary Education Act of 1965, as amended. This
provision and the other sections of the same law referred to in this
paragraph appeared at 20 U.S.C. sec. 3151 and 3152 (1988). As discussed
below, they have since been omitted from the law and no longer appear
in the U. S. Code.
13. Elementary and Secondary Education Act of 1965, as amended, sec.
4602.
14. Improving America's Schools Act, Pub. L. No. 103-382, sec. 101
(1994), 20 U.S.C.
sec. 8001-8006.
15. 63 Comp. Gen. 498, 502 (1984); see Southern Packaging and Storage
Co. v. United States, 588 F. Supp. 532, 549 (D.S.C. 1984) ("any number
of logical conclusions could be drawn from the failure of Congress to
adopt an amendment.")
16. H.R. Rep. No. 103-425 at 24 (1994).
17. The Budget of the United States Government, Fiscal Year 1998,
Appendix, at 447. The budget shows an estimate of expenditures of $40
million for the FIE program in FY 1998.
18. Hearings on 1998 Appropriations for the Departments of Labor,
Health and Human Services, Education, and Related Agencies Before the
Subcomm. on Labor, Health and Human Services, and Education of the
House Comm. on Appropriations, 105th Cong. 223 (1997) (statement of
Richard W. Riley, U.S. Secretary of Education).
19. Id. at 220-225. The budget request asked for funding for
activities under part A of title X of the Elementary and Secondary
Education Act of 1965, as amended. Part A of title X is the authority
for FIE, as added by the Improving America's Schools Act, Pub. L. No.
103-382, sec. 101 (1994), 20 U.S.C. sec. 8001-8006.
20. Pub. L. No. 105-78, Title III (1997).
21. H.R. Rep. No. 105-390, at 106 (1997).
22. Principles of Federal Appropriations Law, Volume I, Second
Edition,
GAO/OGC-91-5, at 4-10 (1991).
23. LTV Aerospace Corporation, 55 Comp. Gen. 307 (1975), citing
B-149163, June 27, 1962; see also B-198234, March 25, 1981. In LTV,
we went on to say:
If the Congress desires to restrict the availability of a
particular appropriation to the several items and amounts
thereof submitted in the budget estimates, such control
may be effected by limiting such items in the
appropriation act itself. Or, by a general provision of
law, the availability of appropriations could be limited
to the items and the amounts contained in the budget
estimates. In the absence of such limitations an agency's
lump sum appropriation is legally available to carry out
the functions of the agency.
24. Pub. L. No. No. 105-78, Title III, sec. 305(b) (1997).