Legality of national education testing sponsored by Dept. of

B-278968 May 28, 1998 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights 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. 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. (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. View Decision 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 . . .