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Published in Print: September 10, 2014, as Oklahoma, Louisiana Center Stage in Common-Core Fight

Okla., La. Center Stage in Common-Core Battle

State, federal tension supercharges debate

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As events in Oklahoma and Louisiana demonstrate, opposition to the common core continues to roil the political waters at the state and federal levels.

Oklahoma's dumping of the Common Core State Standards earlier this year cost that state renewal of its waiver from provisions of the No Child Left Behind Act, a decision that Gov. Mary Fallin, a Republican, is casting as an abuse of executive power by the Obama administration. And Louisiana Gov. Bobby Jindal's federal lawsuit accusing the administration of coercing states into adopting the common core echoes that contention.

Both developments play into a larger partisan narrative of the Obama administration overstepping its legal authority—something that's been at the heart of Republican discontent with the White House.

"It's just amazing how much dissension there is at every level of the government right now over education," said Derek Black, a law professor at the University of South Carolina.

But while the issues are similar, the next steps are quite different, as Oklahoma looks to see if it can salvage its waiver, while Gov. Jindal hunkers down for a protracted and uncertain legal battle. U.S. Secretary of Education Arne Duncan revoked Oklahoma's waiver Aug. 28, nearly three months after it dropped the common-core standards, saying the state's standards do not prepare students for college or a career.

A state isn't required to adopt the common core to receive an NCLB waiver, but its standards otherwise must be certified as "college- and career-ready" by state institutions of higher education.

Oklahoma Fallout

The bill Gov. Fallin signed into law in June repealed the common core entirely and shifted the state back to its previous state academic standards, which the Oklahoma State Regents for Higher Education have not yet certified as college- and career-ready.

Waiverless, the state is now expected to revert to all requirements of the NCLB law, which include reimplementing the outdated law's widely disparaged accountability yardstick—gauging schools based on adequate yearly progress, or AYP.

Since the school year is already underway, the Education Department is giving Oklahoma more time to fully make the transition than it did Washington state, which had its waiver revoked in April over teacher-evaluation issues. Specifically, Oklahoma will have until the start of the 2015-16 school year to implement supplemental educational services, such as after-school tutoring and public school choice, for schools that fail to meet the AYP requirement.

In addition, the department will work with Oklahoma to reinstate its waiver if state education officials can adopt a new set of standards deemed college- and career-ready, a senior department official said. That seems unlikely given administrative hurdles and the coming changes in Oklahoma's K-12 leadership.

Republican Janet Barresi, the state chief, lost her re-election bid earlier this year.

When Oklahoma first dropped the common core, Mr. Duncan criticized its previous standards, noting that some 40 percent of its high school graduates have to take remedial classes once they enroll in college because K-12 schools didn't prepare them for the challenges of higher education.

But Gov. Fallin still jumped on the administration's decision as the latest instance of executive overreach.

"It is outrageous that President Obama and Washington bureaucrats are trying to dictate how Oklahoma schools spend education dollars," she said after the waiver extension was denied. "Because of overwhelming opposition from Oklahoma parents and voters to common core, Washington is now acting to punish us. "

Several conservative policy analysts argue that the department has no authority to judge a state's standards.

"I think the Education Department is way out on a limb legally, and I think this was a huge unforced error on their part," said Michael J. Petrilli, the president of the Thomas B. Fordham Institute, a right-leaning think tank that supports the common-core standards.

Mr. Petrilli also underscored the danger in the Education Department of doing anything that smacks of aligning itself with the common core, especially in the wake of Gov. Jindal's lawsuit and a recent PDK/Gallup poll that revealed significant skepticism among the American public about the standards, along with the perception that they are a federal initiative.

"It's not smart politics to feed this narrative that the Education Department is driving this train," he said.

Jindal's Common-Core Quest

In Louisiana, Gov. Jindal already is in the midst of a complicated and ugly state-level legal battle over the common core with state legislators, the Louisiana state education board, and a group of parents and teachers. His separate Aug. 27 federal lawsuit argues that Race to the Top, the administration's signature competitive-grant program, used federal money to coerce states into adopting the common core and herded them toward a national curriculum.

It also charges that the offer of waivers similarly forced states to adopt the standards and aligned assessments, and that the education secretary has no legal authority to offer waivers on a conditional basis.

Related Blog

Taken together, the grant competition and waivers represent "an attempt by the executive branch to implement national education reform far beyond the intentions of Congress," the lawsuit states.

Many education policy experts and legal analysts—including some who would like to see Secretary Duncan and the Education Department sued for overstepping their legal authority—see little merit in Gov. Jindal's specific argument. They point out that Race to the Top, for example, was a competition that states could choose not to participate in if they didn't like the policies attached to it.

Even some who argue that Mr. Duncan's conditional waiver offer is the basis for a valid legal case, including Mr. Petrilli and Mr. Black, say the Louisiana governor could have a difficult time convincing a judge of that. For one thing, the NCLB law provides the education secretary broad waiver authority. And a report from the Congressional Research Service, the nonpartisan research arm of Congress, found the administration was acting within its legal authority in offering conditional waivers.

Still, Gov. Jindal's decision to file a federal suit could set a precedent for others to follow.

"Bobby Jindal doesn't have a case," said Mr. Petrilli. "But I think Mary Fallin has a case, and I hope she sues and asks the department to point to what legal authority they have to do this, to condition the receipt of flexibility on policy that Congress has never approved—would never approve."

Vol. 34, Issue 03, Page 21

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