Cornyn Is Mistaken on Civics Bill

Published May 3, 2021

National Review Online

Now that President Biden has issued a rule giving priority to grants in history and civics that promote the 1619 Project and Critical Race Theory (CRT), it is even more clear than it already was that the $6 billion appropriated by the Civics Secures Democracy Act will be used by the federal government to impose these toxic approaches on local schools, just as President Obama used Race to the Top grants to force Common Core onto the states. In effect, the Civics Secures Democracy Act creates a second Common Core, this time built around radical Critical Race Theory, and civics as leftist political protest (“action civics”).

Yesterday, the Civics Alliance convened by the National Association of Scholars issued an appeal to Senator John Cornyn and Representative Tom Cole, both Republicans, to withdraw their co-sponsorship of the Civics Secures Democracy Act, particularly in light of the new Biden rule. I was a signatory of that appeal and wrote about it here.

A spokesperson for Cornyn has now responded to the appeal by rejecting it and maintaining instead that the Civics Secures Democracy Act will actually prevent the Biden administration from forcing Critical Race Theory onto America’s schools. Unfortunately, Cornyn’s response is flat-out inaccurate and in no way allays the concerns about this bill expressed by the signatories of the open letter.

Cornyn’s response was issued as a reply to a piece about the controversy at Breitbart by Dr. Susan Berry, and you can read his response at the top of that article, linked here.

Cornyn’s response expresses outrage at Biden’s new rule on Critical Race Theory. Cornyn then goes on to claim that the Civics Secures Democracy Act will actually prevent Biden from imposing Critical Race Theory on America’s schools. Cornyn tries to establish that point with two arguments.

First, Cornyn claims that his bill “actually prohibits the Biden administration from establishing federal curriculum, like CRT.” Unfortunately, this is both mistaken and misleading. It’s true that the bill includes a “rule of construction” stating that “nothing in this Act shall be construed to authorize the Secretary of Education to prescribe a civics and history curriculum.” Notice that this is not a “prohibition.” It merely says that nothing in the bill shall be construed to “authorize” the secretary of education to “prescribe” a civics and history curriculum.

More important is the fact that precisely the same sort of rule was operative when Obama pressed Common Core on the states. Sadly, that rule did precisely nothing to block Common Core. The danger that I and others have long warned of in both Common Core and the present case is that of a de facto national curriculum, not a legally literal one. The conditions imposed by Obama on his Race to the Top grants may not have met the legal requirements for “prescribing” a formal “national curriculum,” at least as adjudicated at the time. Nonetheless, they were perfectly sufficient to take control of the direction of American education in math and reading. Similarly, well before Biden reaches the current de jure legal definition of prescribing a national curriculum, he can easily impose action civics and Critical Race Theory on the nation via the multibillion-dollar carrots authorized by Cornyn’s bill and the national tests that states would be required to administer to their students by that bill. The content of Biden’s rule on Critical Race Theory makes that all too clear.

This brings us to the second and more serious flaw in Cornyn’s response. Cornyn maintains that his bill will actually prevent Biden from imposing the priorities contained in his new rule on Critical Race Theory. Why? Because according to Cornyn, the grants authorized by the Civics Secures Democracy Act are “formula grants,” as opposed to grants to be disbursed at the discretion of the secretary of education. In other words, Cornyn maintains that the grants under his bill would be disbursed to various states according to an automatic formula relying on neutral criteria such as their population in relation to other states, thereby preventing the secretary of education from exercising discretion by deploying the pro–1619 Project and pro–Critical Race Theory criteria in Biden’s new rule.

This is simply mistaken. The Civics Secures Democracy Act explicitly authorizes the secretary of education to makes grants to the states (and to other entities such as nonprofits, educational institutions, etc.) on a competitive basis. Section 103(a) of the bill states: “The Secretary of Education is authorized to make grants to states, on a competitive basis, to support educational programs in civics and history . . .” (emphasis added). (See the text of the bill, Page 8, Lines 22-23.) It’s true that once a particular state has won a grant competition, the amount of its grant will be determined by a formula based on factors such as its population relative to other states. (Page 9, Lines 1-4) But the grants themselves are to be awarded at the discretion of the secretary of education, based on his judgment as to which proposals best fulfill the priority criteria outlined in the bill itself.

Those criteria clearly favor action civics. Other criteria mesh perfectly with the new Biden rule favoring the 1619 Project and Critical Race Theory. Cornyn’s bill, for example, allows the secretary of education to award grants based on his judgment as to which have the greatest potential to “improve knowledge and engagement among students traditionally underserved,” or to “close gaps in knowledge and achievement among students of different income levels, racial and ethnic groups, and native languages.” (Pages 7, Line 24—Page 8, Line 11) The new Biden rule explicitly favors Critical Race Theory because it takes the position that CRT is the best way to address the needs of traditionally underserved students with diverse racial, ethnic, and linguistic backgrounds.

In other words, Biden’s education secretary does indeed have discretion to decide on which states, nonprofit organizations, higher-education institutions, etc., should win competitions for grants. And the new Biden rule creates guidance that meshes with the priority criteria already in the Civics Secures Democracy Act. The result will be that the Cornyn bill, in practice, will be used by the Biden administration in just the way Obama used Common Core — and with the additional ability to cut off funding to states whose students are not learning the curriculum effectively imposed by the mandated national test. The massive civics grants will serve as politically irresistible carrots that will commit states to forcing ideas such as the 1619 Project and Critical Race Theory onto their school districts — even the most conservative districts in deep-dyed red states.

I am not the only analyst to read the plain meaning of the bill’s text in this way. Consider the excellent analysis of the Civics Secures Democracy Act by Emmett McGroarty and Jane Robbins, education experts and longtime critics of the Common Core: “The bill authorizes the Secretary of Education to make grants of $585 million per year to states ‘on a competitive basis,’ giving the secretary leeway to set the particulars of the competition. As with past programs, this arrangement will weaken the integrity of state and local policymaking and bend it toward federal prescriptions. For example, the Race to the Top competition rewarded states for commitment to the Common Core, a controversial initiative with abysmal results.”

In short, Senator Cornyn’s defense of his bill is mistaken and untenable. I hope he will abandon support for this bill before he hands Biden the tool he needs to force action civics and Critical Race Theory onto every school in the nation.

Stanley Kurtz is a senior fellow at the Ethics and Public Policy Center.

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