BOSTON - The legal complaint issued by Governor Jindal's office clearly builds off Pioneer Institute's white paper "The Road to a National Curriculum," co-authored by former U.S. Department of Education General Counsel Kent Talbert, Deputy General Counsel Robert Eitel, as well as Bill Evers of the Hoover Institution at Stanford University. The publication was a joint release with the Federalist Society, the American Principles Project, and the Pacific Research Institute.
In that paper, Talbert, Eitel, and Evers focus not on the broad issue of whether federal involvement in education is a constitutional question, although that is a matter in which all U.S. citizens and lawmakers should be interested. Rather, they ask whether the Common Core and national testing consortia are legal under federal law.
As Governor Jindal's complaint restates, there are three federal laws that expressly prohibit any federal role in nationalized K-12 standards, testing, curriculum, or instructional materials. The General Education Provisions Act of 1970, the Department of Education Organization of 1979, and the Elementary and Secondary Education Act of 1965, as amended by the No Child Left Behind Act in 2001 (NCLB) "ban federal departments and agencies from directing, supervising, or controlling elementary and secondary school curriculum, programs of instruction, and instructional materials."
It is worth underscoring that two of these federal bans were originally signed into law by Presidents Lyndon Johnson and Jimmy Carter. Thus, proponents of Common Core and national testing are suggesting a policy path that even these two Democratic presidents rejected as a bridge too far for the federal government.
In "The Road to a National Curriculum," distinguished attorneys Talbert and Eitel note that the federal education department's practice, starting in 2010, of using discretionary Race to the Top grants to herd state education authorities into adopting national standards and tests is questionable. The same is true of a later 2012 round of Race to the Top grants that was created for school districts, and included the promotion of Common Core.
More clearly in violation of the aforementioned federal restrictions are these four actions by the department:
1. The conditional waivers to NCLB offered by U.S. Secretary of Education Arne Duncan have never been approved by Congress. Past secretaries of the federal department of education have granted waivers, but never with a unilateral and material assertion of policy that is contradicted by existing federal laws.
2. The two consortia receiving over $350 million in federal funds include in their funding applications explicit recognition that they would develop curricular materials and instructional practice guides.
3. The federal Department of Education has created a national technical-review board and process for the two federally-funded state consortia that are designing national assessments for the Common Core standards.
4. The federal Department of Education has criticized states that have sought to exit Common Core and national tests.
Noted journalist George Will cited Pioneer's work on the legal dimensions of Common Core in a 2012 Washington Post column with the following words,
As government becomes bigger, it becomes more lawless. As the regulatory state's micromanagement of society metastasizes, inconvenient laws are construed - by those the laws are supposed to restrain - as porous and permissive, enabling the executive branch to render them nullities.
And in a 2014 Washington Post column, Will wrote:
The Obama administration has purchased states' obedience by partially conditioning waivers from onerous federal regulations (from No Child Left Behind) and receipt of federal largess ($4.35 billion in Race to the Top money from the 2009 stimulus) on the states' embrace of the Common Core.
Pioneer Institute reminds state legislators and education officials, as well as local education officials, that federal laws apply not only to federal officials, but to all of us, whether elected or appointed officials, as well as to citizens generally.
Citing research and work going back to 2010, The Boston Globe referred to Pioneer Institute as the brains and intellectual wellspring of the movement to end the Common Core and the nationalized testing consortia. The Institute believes that states, localities, and citizens need to develop truly world-class K-12 educational standards that prepare our public school students for authentic college-level work.
Other Pioneer research on the mediocre academic quality, the questionable legality, the cost, and data mining of students related to Common Core and national testing can be found here, including a white paper authored by former Texas Commissioner of Education Robert Scott, with a preface by Iowa U.S. Senator Charles Grassley, A Republic of Republics: How Common Core Undermines State and Local Autonomy over K-12 Education, and Controlling Education from the Top,co-authored by Emmett McGroarty and Jane Robbins of the American Principles Project.