J. Michael Smith, Esq.

Michael P. Farris, JD, LLM

Federal Government Threatens Parental Rights
with Early Learning Challenge

William A. Estrada, Esq.
HSLDA Federal Relations

Melanie P. Palazzo
Congressional Action Program Director

October 24, 2011


HSLDA has long opposed the federal government’s attempts to increase control over early education. We believe the federal government has no business dictating education policy to parents, local school districts, and the states. In addition, we believe this focus on early education hurts parental choice, pushes children into an institutional setting far too early, and fails to improve student learning. HSLDA has written extensively about our concerns with the federal government’s expansion into early education in “Why Government Should Stay Out of Pre-K.”

In 2009, U.S. Representative George Miller (CA) introduced H.R. 3221, the Student Aid and Fiscal Responsibility Act of 2009. H.R. 3221 would have created federal incentives for states to create and expand early education programs. HSLDA opposed this legislation, and though it passed out of the House, it never made it through the Senate’s education committee.

Faced with legislative defeat, the U.S. Department of Education decided to accomplish the same goals of using federal dollars to pressure states into expanding early education programs through regulation. This was done through Race to the Top’s Early Learning Challenge (ELC), which was unveiled by the Department of Education in July 2011. ELC will give over $500 million to states which meet the federal standards and mandates for early education programs.

The Early Learning Challenge—A Federal Power Grab

HSLDA’s first concern with the ELC is that the U.S. Department of Education lacks the authority to create this program by regulation alone. The requirements in the ELC are almost completely like those found in H.R. 3221, which did not pass Congress. In its summary of these regulations, the Department of Education even states “this competition represents an unprecedented opportunity for states to focus deeply on their early learning and development systems for children from birth through age five.”1

In addition, there was no opportunity for formal notice and comment prior to the release of the ELC regulations. Under the Administrative Procedure Act (APA) found in 5 U.S.C. § 551, et seq., a general notice of proposed rulemaking and an opportunity for public comment is generally required before promulgation of regulations.

The Department of Education did not open the ELC regulations for formal public comment. Stakeholders could comment only by using the forms at the end of the proposed regulations, similar to the standard comment forms available under online news stories. Yet, not all the comments were visible on the Department of Education web page, and many comments made by stakeholders received no official response from the Department of Education.

HSLDA believes this was a serious breach of the department’s authority to issue regulations. And we believe it resulted in regulations being issued which could cause serious difficulties for families.

The ELC Will Encourage States to Pressure Parents into Using Government Programs

One of the federal requirements for the ELC is that a “State’s Plan must be designed to increase the number of children from birth to kindergarten who are participating in programs that are governed by the State’s licensing system and quality standards, with the goal that all licensed or state-regulated programs will participate.”2 The Department of Education states that the ELC “demonstrates a strong commitment by the Administration to stimulate a national effort to make sure all children enter kindergarten ready to succeed.”3

HSLDA is concerned this “strong commitment” and federal mandate pressuring states to “increase the number” of participants will in turn cause the states to pressure parents into placing their children in early learning programs. This is a threat to parental rights. Not all parents wish to put their children in early learning programs. Some feel that their children may not be ready for such programs. Some parents may choose to homeschool their young children and not use institutionalized programs. Whatever the reason, we believe parents, not government bureaucrats who are trying to make their program grow in order to get more federal dollars, should make these decisions.

The ELC Will Crowd out Private, Parent-Run Early Learning Programs

The early learning programs in which states need to “increase the number” of participants are not just any learning programs: these are government-supervised and licensed early learning programs. ELC requires that states license and inspect all programs that “regularly care for two or more unrelated children for a fee in a provider setting.”4 This means all state preschool programs will be subject to state control.

This provision will cause great harm to many private early learning programs. There are many churches or other houses of worship that have successful early learning or daycare programs. Many parents choose to use private programs run by another mother or an experienced caregiver for a small fee. Under the ELC, all of these programs will have to be supervised and licensed by the state. Yet another private institution is going to be buried under state licensing, approval, and regulation.

This will have numerous side effects. For one thing, will this mean early learning programs eventually will have to teach what the federal government thinks that young children should learn? Will religious early learning programs eventually have to limit what they teach? There are many unanswered questions about where this state licensing, approval, and supervision could lead.

The end result will be that all early learning programs will be government-approved early learning programs. Instead of parents making the decision of which (if any) early learning program they want to use, the government will make that decision for them by requiring all early learning programs to be government-approved.

The ELC Will Encourage more Statewide Databases

Defined as CEDs, Common Education Data Standards are “voluntary, common standards for a key set of education data elements at the early learning, k–12, and post secondary levels developed through a national collaborative effort being led by the National Center for Educational Statistics.”5 These CEDs, even if voluntary, run dangerously close to a national database which is prohibited under the No Child Left Behind Act (NCLB) found in 20 U.S.C. 7911. A national database demonstrates a “Big Brother” mentality, tracking citizens from the day they are born. One database that every state taps into not only has serious security risks but is also quite expensive to run and maintain. States have ways of collecting data without needing to adopt common standards that could be used to link states to a national database.

The ELC Funds a Program that has a Dubious Success Rate

Not only does HSLDA believe the federal government lacks constitutional authority to enact educational regulations like those in the ELC, but we also believe early education programs are costly failures. In 2010, the Department of Health and Human Services conducted a study on Head Start (a federal program created to improve school readiness for low-income children), and came to the conclusion that “no significant impacts were found”6 in academic readiness, despite the billions of federal dollars spent on this program. Almost every other comprehensive early education study has come to the same conclusion.

With the country in the economic state it is in, should we really be adding more than $500 million in federal dollars to these early learning programs with these poor achievement rates? Parents are the key to a child’s academic success, and leaving them out of the picture will further harm the academic readiness of young children.


HSLDA believes that the Race to the Top’s Early Learning Challenge should be withdrawn by the U.S. Department of Education. This is a decision for Congress, not unelected bureaucrats at the Department of Education. Additionally, we urge Congress to investigate the ELC, terminate funding for the program if necessary, and leave decisions like this one to parents and the state and local governments.

 Other Resources

The Early Learning Challenge Fund: Increased Federal Role in Early Education

Budget 2011: With Head Start Failing, White House Proposes $9.3 billion for New Preschool Program

Federal Preschool Programs Waste Taxpayers’ Money, Limit School Choice


1. U.S Department of Education, “Race to the Top-Early Learning Challenge Executive Summary,” August 2011, at http://www2.ed.gov/programs/racetothetop-earlylearningchallenge/exec-summ.pdf (August 24, 2011)

2. ibid.

3. Ibid.

4. Ibid.

5. Ibid.

6. U.S. Department of Health and Human Services, “Head Start Impact Study Final Report: Executive Summary,” January 2010, at http://www.acf.hhs.gov/programs/opre/hs/impact_study/reports/impact_study/executive_summary_final.pdf (August 22, 2011)