Louisiana Governor Bobby Jindal (R) filed a lawsuit in federal court yesterday against the Obama Administration over its use of federal funding and waivers from No Child Left Behind (NCLB) to incentivize states to adopt Common Core national standards and tests.
Jindal contends that these actions put states on “a path toward a national curriculum.” The lawsuit charges that
through regulatory and rule making authority, Defendants have constructed a scheme that effectively forces States down a path toward a national curriculum by requiring, as a condition of funding under the President’s Race to the Top [RTTT] programs, that States join “consortia of states” and agree to adopt a common set of content standards and to implement the assessment protocols and policies created by that consortium, all under the direction of the United States Department of Education [DOE]. It is impossible to square the executive actions at issue with settled Congressional authority or the Tenth Amendment.
The complaint also notes that the DOE “has tethered NCLB waivers and other ESEA [Elementary and Secondary Education Act] [grant] conditions to the RTTT program objectives of Common Core standards and assessments, thus coercing States to participate in the objectionable RTTT conditions under the threat of more onerous conditions and/or the loss of funding under ESEA and NCLB.”
Analysis conducted in 2012 by former DOE officials came to a similar conclusion: “The Department has simply paid others to do that which it is forbidden to do. This tactic should not inoculate the Department against the curriculum prohibitions imposed by Congress” (emphasis added).
The DOE granted ESEA waivers to states such as Louisiana under the condition that they meet a variety of new requirements concocted by the DOE. And, pursuant to Section 9401 of the law, codified at 20 U.S. Code § 7861, the Secretary of Education is to waive “any statutory or regulatory requirement” of the ESEA (now known as No Child Left Behind) when a state requests a waiver.
The problem is that rather than wait for states to request waivers if they were unable to meet certain requirements, the Obama Administration actively encouraged non-compliance by developing an ESEA Flexibility program, the details of which were announced in September 2011. This program represented what the Congressional Research Service (CRS) described as “a fundamental redesign of key elements of the ESEA.” The program encouraged states to apply for waivers, insulating them from NCLB sanctions for failure to meet achievement benchmarks.
In order to receive a waiver, however, states were required to adopt standards common to a “significant number” of states (as the CRS report says, “presumably the Common Core State Standards”) or college-and-career readiness standards approved by a state’s Institute of Higher Education network.
Critics of Common Core have long argued that Common Core national standards and tests will inevitably strengthen federal power over education while weakening schools’ direct accountability to parents and taxpayers. They’re also more likely to result in standardizing mediocrity rather than establishing standards of excellence—something that has become more evident as states compare Common Core to the previously excellent standards in place in states such as Massachusetts and Indiana.
Moreover, this might not be legal—something the Governor’s lawsuit highlights. The waiver scheme might violate a number of statutes. The waiver program appears to encourage noncompliance. Furthermore, there are provisions in three federal laws that explicitly prohibit federal direction of curriculum: the General Education Provisions Act, the Department of Education Organization Act, and the Elementary and Secondary Education Act.
The federal government will likely argue that it is simply directing “standards” and not “curricula,” but this is something for a federal court to decide. The government will also likely argue that it is barely involved at all, because it is only directing compliance with those standards set up by a “significant number of states.” Yet the federal government has been quite involved in this process, not least by facilitating state development of Common Core and then essentially conditioning waivers on adopting Common Core. The extent of federal involvement is also something for a federal court to decide.
There are also serious constitutional questions. In Jindal’s view, even if (and it’s a big “if”) one presumes that federal law authorizes the President the waiver authority he claims, that federal law might be invalid under the Tenth Amendment to the extent it authorizes the “commandeering” of state law in the field of education. In the 2012 Obamacare case, Chief Justice John Roberts, writing for the majority, struck down the Medicaid expansion component of the law because, in the Court’s opinion, the “retroactive” imposition of onerous new conditions on federal grants in that case was tantamount to holding a “gun to the head” of states. Such a “gun to the head” might be unconstitutional.
Kudos to Governor Jindal for pushing back against this misguided federal overreach.