Bobby Jindal’s Common Core Lawsuit Is Not About Education. It’s About Getting Bobby Jindal Elected.

The law, lawyers, and the court.
Aug. 28 2014 7:02 PM

Bobby Jindal’s Desperate Move

The governor’s Common Core lawsuit is not about education in Louisiana. It’s just a stunt.

Photo by Justin Sullivan/Getty Images
Louisiana Gov. Bobby Jindal tends to not like things anymore once President Obama starts to like them.

Photo by Justin Sullivan/Getty Images

Louisiana Gov. Bobby Jindal sued the Department of Education and Arne Duncan in federal court Wednesday, claiming they have illegally coerced states into adopting Common Core education standards, which violates the state sovereignty clause in the Constitution as well as federal education law.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate

Armed with the legal argument of “I saw it first,” Jindal seems to be suing on the grounds that he liked Common Core (which sets English and math benchmarks for each grade) before it was cool, and he’s mad that the federal government started liking it too. “The federal government has hijacked and destroyed the Common Core initiative,” he said in a statement. “What started out as an innovative idea to create a set of base-line standards that could be ‘voluntarily’ used by the states has turned into a scheme by the federal government to nationalize curriculum.” The Common Core standards began as a bipartisan, state-led effort to create consistent education standards. But now that states are adopting it and Obama supports it, the whole thing is seen as federal overreach.

What is the “scheme” Jindal has uncovered? The Department of Education uses Race to the Top, a generous $4.3 billion grant program, as well as No Child Left Behind waivers to encourage states to adopt the uniform education standards. Jindal’s complaint says that this constitutes illegal federal coercion because it “effectively forces states down a path toward a national curriculum.”

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In his complaint filed in federal court, Jindal claims that Duncan impermissibly used grants and waivers to incentivize states to adopt Common Core: Forty-three states participate in Race to the Top, which obligates them, says Jindal, to enter into “binding agreements to adopt and fully implement a single set of federally defined content standards and to utilize assessment products created by a federally sponsored ‘consortia.’ ”

Jindal has a beef with the two consortia associated with Common Core—the Partnership for Assessment of Readiness for College and Careers, or PARCC, and the Smarter Balanced Assessment Consortium, or SBAC—which he believes are promoting a national curriculum. The testing consortia were awarded $360 million through Race to the Top grants to develop testing materials around the Common Core’s standards, which, again, critics say are less standards than federal guidelines.

The suit echoes the theory that prevailed in the Medicaid expansion section of the 2012 challenge to the Affordable Care Act: that the federal government was “coercing” the states with incentives that—in the language of Chief Justice John Roberts—was tantamount to holding a “gun to the head” of states.

Of course nobody has failed to notice that Jindal himself strongly supported Common Core not too long ago. As the Washington Post notes:

When Louisiana applied multiple times for a grant under Obama’s Race to the Top program, Jindal never mentioned overreach, illegality or coercion. His state superintendent of education at the time wrote to the U.S. Department of Education “we proudly submit this application to Race to the Top because Louisiana’s children can’t wait.”

When the Louisiana education board adopted Common Core in 2010, Jindal said it would help students prepare for college. So why the change of heart? Jindal’s attorney told the Huffington Post that Jindal “changed his mind because the governor did not realize how intrusive the Common Core was until he had a chance to learn more about it.” Yet, he accepted more than $17 million in federal aid through Race to the Top. (He must have been coerced.)

The worm evidently turned when it all became federalized, even though it’s not, really. As Jindal claims in his complaint, “The good intentions of Common Core and the ‘voluntariness’ of PARCC participation have proven to be illusory. In fact, Louisiana now finds itself trapped in a federal scheme to nationalize curriculum. What started as good state intentions has materialized into the federalization of education policy through federal economic incentives and duress.” So the tenor of the constitutional violation is that the sweet deal forces the states to participate in Common Core, the program that they developed.

Not really about education or actual federal overreach at all, the suit is little more than a piece of political posturing in the run-up to the 2016 presidential race, a feint to embrace Tea Party suspicions of big federal government programs, even if they were created locally. A PDK/Gallup Poll released last week found that 60 percent of those surveyed don't like the standards and that 76 percent of Republicans oppose them. “People don’t like the federal government telling them what to do,” Hans von Spakovsky, a senior legal fellow at the Heritage Foundation, told the Wall Street Journal on Wednesday. “Folks in the tea party very much think education should be a local concern, and they don’t like the idea of the federal government forcing its national standards.” What better way to distance yourself from an initiative you once supported that the “folks” don’t like, and that a potential political rival still does, than a lawsuit against the much-reviled Department of Education?

Why doesn’t Jindal just prevent Louisiana from adopting the Common Core? Well, because the state legislature, board of education, and superintendent all like it. In fact, as all this is happening in the federal courts, Jindal finds himself embroiled in yet another battle over Common Core in his home state. He picked a fight in June with the Louisiana Department of Education, when he issued an executive order attempting to unilaterally suspend the PARCC testing contracts. Parents, teachers, and later the state board of ed filed a lawsuit against him. Last week a Louisiana judge ruled against Jindal in that suit, finding that the governor and his allies had “caused considerable harm to the public education system in Louisiana” and thrown schools into “a state of chaos” with their attempts to undo the Common Core.

It’s pretty amazing that Jindal is staking his presidential hopes on a fight for local control over education. This is, after all, the former biology major who in 2008 signed into law the infamous Louisiana Science Education Act, a law blatantly intended to promote teaching creationism as science in the Louisiana schools. Scientists around the country were horrified. Nobel laureate chemist Roger Kornberg summed up the scientific consensus, calling the LSEA “a tragedy for the young people of Louisiana and an embarrassment for the entire state and the nation. Shame on the legislature that enacted it, and especially on the governor who signed it into law.”

In recent months Jindal has also taken to questioning President Obama’s intelligence and schooling. In March he suggested in a speech at CPAC that “This president graduated from some of the best schools in the country. If I were him, and he would like some free advice, if I were him, I’d consider suing Harvard Law School to get his money back because I’m not sure what he learned in three years.” Bobby Jindal sure is litigious. It’s not at all clear that suing his way to a friendly electorate is going to work any better than the GOP’s efforts to sue its way out of Obamacare, or John Boehner’s attempt to sue for, like, everything. But the standard has now been set: Anyone who is anyone in the GOP primary will be accessorizing with a stunt lawsuit.

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