Jindal should defer to prevent assessment train wreck

The rearguard struggle to defeat the Common Core State Standards became more interesting with another gambit to force the state out of the Partnership for Assessment of Readiness for Colleges and Careers that may make the state in following one law to violate another and only ensures that elementary and secondary education delivery suffers.

Tentatively at first, Gov. Bobby Jindal, at the urging of some Republican state representatives, switched from undemonstrative support of PARCC, a coalition of 17 states that plan to assess students using a common instrument built around CCSS, to outright opposition, followed by a national, public reversal on CCSS itself. Previously, these representatives had counseled Jindal to opt out of the signed agreement to institute PARCC, but that documentation reveals that this cannot be done unilaterally by him.

Apparently, even as these legislative opponents mouthed brave words about his being able to do so, the search continued for a unilateral gubernatorial action to stop PARCC entrance, as it appeared a majority of the Legislature opposed action to remove the state from the consortium (reaffirming that yesterday). And it was found, courtesy of an unforced error by the Louisiana Department of Education.

Presently by administrative law, DOE administers a wide variety of assessments to evaluate delivery of education in the state. To alter that, it must issue a rule superseding the previous, to which a notice of intent appeared in the February edition of the Louisiana Register (the document listing all proposed and final rules, whether emergency in nature, that spans from the 21^st day of the previous month to the 20^th of that month) to that affect, allowing comment until Mar. 13. With the obligatory time period passed, apparently on May 2 20 the final rule was issued.

Rules are issued according to the Administrative Procedures Act, wherein which in R.S. 49:970 the governor is empowered to suspend or veto any kind of rule, except certain specified ones that do not apply to DOE, within 30 days of the issuance of that final rule. Had DOE started this process at the beginning of the year – and as Louisiana had provided much input into the creation of PARCC tests, if not serving as the most influential model on them, long ago it was known the state would want to align with PARCC – probably the evolution of Jindal’s thinking would have occurred after the final rule’s implementation. Yet for whatever reason it waited until almost the last minute, the beginning of the next academic year.

That deadline existed because of Act 275 of 2012, which mandates that the state follow starting AY 2015 “nationally recognized content standards that represent the knowledge and skills needed for students to successfully transition to postsecondary education and the workplace.” Current assessments (which some opponents suggested as an alternative to PARCC) simply do not adhere to this standard.

Last week, after its issuance, those oppositional representatives plus new recruits urged Jindal to veto the rule. If he did, technically the old regime of assessments legally must go on until superseded. But unless it’s changed within a few months from that – and practically speaking, waiting that long would create chaos in administration so a new regime must get implemented with entire certainty almost immediately – DOE is in violation of the law.

The deadline for veto or suspension is Jun. 1 – the day before the legislative session ends 18, about which Jindal has said repeatedly he wishes the Legislature to deal with the matter before he considers taking some kind of action – and gives him an opportunity to retreat and claim victory, by letting the veto/suspension deadline pass and explaining that he did not want to set up a situation where his actions caused violation of state law. The problem is, from a political perspective, he may be in too deep not to provoke a crisis among his past supporters. By his recent turnaround on this policy, he already may have alienated allies among legislators, interest groups, and the attentive public that favors CCSS with enough rhetoric that even if his actions did not align with it that he has lost political capital that they can provide. Yet he may lose more from his new allegiances through inaction than he could regain from backers already alienated.

So were he to veto, he sets up an environment that at best would prove difficult to manufacture compromise. There are three other testing regimes, one about the size of PARCC and two much smaller, that the state could enter, but the opponents mean not to have the state join them any of them, because their ideology is that these thrust national control onto state education. Only either an entirely new test that somehow aligns with CCSS yet does not cross the indeterminate line that makes curricular content test too captive to a perceived, if imaginary, federal control acceptable to opponents , or altering R.S. 17:24.4 to scrap the national standards requirement, which would take a special session and would be unlikely to succeed even with unprecedented heavy lobbying by Jindal, would seem to fit the bill.

Should neither occur, the issue seems destined for the courts, and on the surface opponents would lose as statute trumps rule, even if carrying out statute prevents changing the rule. Yet this also would be a loss to all sides, for while the case ground its way through the judiciary, precious implementation time would be lost. Still, pursuing compromise would do the same. So, unless one side unilaterally surrenders before the session’s end, damage, if it already hasn’t started, will be done.

Which means that Jindal may have to see himself as a statesman and defer on any action. Otherwise, as far as educational delivery in the state goes, this is heading rapidly towards a no-win situation.

NOTE: original post was corrected through strikethrough and addition