Thursday, September 24, 2015

NCLB Waivers Survive at Trial, But Will the Fifth Circuit Ask Different Questions?

Last week, the federal district court in Jindal v. U.S. Department of Education denied Jindal's motion for a preliminary injunction.  Jindal had sought to enjoin the Department's Race to the Top Program and its No Child Left Behind waivers.  Jindal argued that the Department's support for the Common Core Curriculum through these programs violated the 1oth Amendment and a federal statute that prohibits the Department from dictating curriculum.  The district court rejected both arguments.  

Before going into my analysis, I must, in full disclosure, state that Jindal retained me as an expert in the case.  It was just two months before the case went to trial and long after I had completed my article, Federalizing Education by Waiver?.      In fact, I completed my article before Jindal filed his case, which I only learned about in the news.  My testimony was little more than a recitation of my article.  Regardless, I clearly have an opinion on this case.  With that disclosure, I offer the following.

The district court's reasoning rests on two findings.  First, the Common Core is not curriculum.  It is a set of standards.  While federal statutes--and maybe the constitution--prohibit the Department from dictating curriculum, they do not prohibit the Department from dictating academic standards. Second, Louisiana voluntarily submitted its application for Race to the Top and voluntarily submitted a request for a waiver of No Child Left Behind.  To the extent Louisiana felt any pressure to submit a waiver application, the pressure was of its own making, due to its prior failure to meet the goals of No Child Left Behind.  Thus, no impermissible coercion existed that would violate the Constitution or a statute.

Interestingly, those findings are reasonable enough.  While I could quibble with some of those findings, there are surely facts to support them.  After reaching those factual findings, the legal conclusions the district court reached logically follow.  

The problem is that those are not the most important facts or the only legal questions to answer.  Surely, if the Common Core is curriculum, a federal statute would prohibit the Department from requiring it.  Likewise, if the Department forced states into adopting the curriculum or other academic programs, it might violate the Constitution. But that neither of those factual thresholds was met does not mean that the Department's NCLB waivers were legal. As I discuss in the lengthy first footnote to my article, the legality of the Department's NCLB waivers does not rest on the definition of curriculum. This, of course, has consumed the public and politics, but something else is far more important: legal authority.  This is a question the district court does not really answer.

The most important question-which is easily lost in a statutory and constitutional morass as complicated as this case--is whether Secretary Duncan had the authority to condition waivers, not whether those conditions contained curriculum.  In fact, this is the first question because absolutely nothing else matters if the Secretary does not have authority.  The Secretary must have legal authority to impose conditions, regardless of how one defines curriculum and regardless of whether states felt coerced.  

NCLB gives the Secretary the power to waive the statute's requirements, but it does not grant the Secretary the authority to impose new requirements or conditions.  Moreover, standard spending clause doctrine prohibits the federal government from imposing ambiguous or after-the-fact conditions.  The factual question under this analysis is simply whether these were "new" conditions. The district court does not address that question.  I would not suggest this was intentional, but an oversight.  In short, the flaw in the district court's opinion is not necessarily in what it did, but in what it did not do.

For a full explanation of why these are new conditions, see here.

Download Jindal ruling

Jindal indicates he will appeal the decision to the Fifth Circuit Court of Appeals.  What questions will it seek to answer?

https://lawprofessors.typepad.com/education_law/2015/09/nclb-waivers-survive-at-trial-but-will-the-fifth-circuit-ask-different-questions.html

ESEA/NCLB, Federal policy | Permalink

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