On Wikipedia, I've read apparently conflicting statements about how Section 604 of the Elementary and Secondary Education Act—reauthorized as Section 2302 of the Every Student Succeeds Act (20 U.S.C. § 6692)—affects the U.S. government's ability to direct curricula. I'm looking for citable sources that clarify this confusion.

Williamson Evers writes that "[t]he Elementary and Secondary Education Act of 1965 forbids federally determined curricula." Although § 6692 is titled "Prohibition against Federal mandates, direction, or control," it doesn't seem to prohibit those things—it only says they aren't authorized by this subchapter. Some Wikipedia articles (1)(2) repeat Evers's statement, while another (3) says that "Section 604 of the original ESEA prohibited the federal government from using the ESEA as the basis for a national curriculum," citing the section itself.

If legislators passed a law authorizing the U.S. Department of Education to establish a national curriculum, and requiring states to follow it, would that law conflict with § 6692?

(And is this a correct understanding of what it would mean for § 6692 to "forbid[] federally determined curricula"? My naïve distinction between not authorizing and forbidding federal direction is starting to feel shaky.)

1 Answer 1


Yes, ...

Congress does not have to repeal a law when they pass a new law that contradicts it. Courts assume (without evidence) that Congress is sane and sensible and that if they say something now that contradicts what they said before that what they want now is what they are saying now. So to the extent that a newer law contradicts an older law, the newer law wins to the extent of the contradiction.

However, it's good legislative practice to repeal or modify older laws so that the code of law is internally consistent on its face without having to work out which law came later.

... but ...

Congress probably doesn't have to power to impose a national curriculum.

The Federal government only has three sources of power - 2 come from the Constitution and the third comes from being a nation-state. It can only legislate/regulate within its powers. If it has the power and it makes a law that conflicts with a state's law - too bad for the state. However, if it doesn't have the power then only the states can make laws on that issue.

The three sources of power are:

  1. The enumerated powers: The powers that the Constitution explicitly grants to the Federal government. Education isn't one of them.
  2. The implied powers: The Constitution gives the power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." This means that if in order to do something it can do, there is something that is necessary but not a power explicitly granted, then it can do that necessary thing. How broad this power is, depends on the current fashions in the Supreme Court. Setting curricula for primary and secondary education doesn't seem to be strictly necessary.
  3. Inherent powers: These are powers that are fundamental to being a nation-state that the founders didn't think it necessary to put in the Constitution. Things like maintaining embassies with other nations for example. Education doesn't go here either.

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