Monday, February 8, 2016
Louisiana to Drop Lawsuit Against U.S. Department of Education over Common Core, But Major Issues Remain over Secretarial Authority
Last week, Louisiana Governor John Bel Edwards indicated that he intends to end the state's legal challenges against the U.S. Department of Education regarding Common Core education standards. Former Governor Bobby Jindal had brought the original suit in 2014, arguing that the Department had unconstitutionally coerced states to adopt Common Core standards and tests through the Race to the Top Program. He later included the conditions the Department imposed on states to receive a No Child Left Behind waiver in his claims. This past fall, the federal district court rejected those claims, reasoning that there was no evidence to indicate that Louisiana had been coerced to adopt Common Core standards or tests. In full disclosure, I was a witness for the state in that case.
The immediate stakes of that litigation dropped precipitously when Congress reauthorized the Elementary and Secondary Education Act a little over a month ago in the form of the Every Student Succeeds Act. The practical result was to void the NCLB waivers. The Act also specifically prohibited the Secretary from imposing similar requirements on states in the future. As to curriculum and academic standards, states no longer even have to submit them to the Department and the Department cannot deny state applications based on the content of their standards. In numerous different provisions, the Act severely restricts the Secretary from doing much of anything that is not specifically enumerated by the statute. In other words, the new Act gives Louisiana much of what it had sought through the litigation. Given this reality, Governor Edwards indicated it was better to spend the money on education than litigation.The state attorney general, however, said he will look into whether he might finish out the appeal in the case himself. It was formerly litigated by private counsel through a state contract. The governor's immediate act was simply to end that contract for services. Notwithstanding the newly authorized version on the ESEA, some large issues do remain in the case. Those issues are not really about Common Core at all. Rather, they are about secretarial authority in general, including its statutory and constitutional limits. Those issues have the potential to play out over and over again in subsequent years and in areas other than just education. For instance, many of the core issues regarding executive authority regarding immigration deferrals (currently before the Supreme Court in Texas v. United States) appear in the debate over NCLB waivers. I argue here that in fact the NCLB waivers involve a far larger and more egregious case of executive overreach. More on the lower court decision and the remaining issues here.