Under the Tenth Amendment of the U.S. Constitution: "The powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Nothing specific is said about education in the Constitution; therefore it falls outside federal authority.

In creating the Department of Education, Congress made clear its intention that the secretary of education and other Department officials be prohibited from exercising "any direction, supervision, or control over the curriculum program of instruction, administration, or personnel of any educational institution, school, or school system." The establishment of schools and colleges, the development of curricula, the setting of requirements for enrollment and graduation -- these are responsibilities handled by the various states and communities, as well as by public and private organizations of all kinds, not by the U.S. Department of Education.