BNUMBER:  B-278968 
DATE:  May 28, 1998
TITLE: Legality of national education testing sponsored by Dept. of
Edu, B-278968, May 28, 1998
**********************************************************************

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).