Jindal politically goes all in with risky CCSS gambit

Gov. Bobby Jindal has staked perhaps his whole political future on a battle where he doesn’t exactly have a lot of cards to play to win the hand. But maybe his political calculus tells him that emerging victorious in the battle isn’t essential to winning the war.

Yesterday, Jindal announced several actions through executive orders BJ 2014-6 and BJ 2014-7 designed to interfere with the Louisiana’s ability to administer exams designed through the Partnership for Assessment of Readiness for College and Careers, based upon the Common Core State Standards initiative. Despite having once been a supporter and with the state’s own testing used as a model for constructing the PARCC exam, he has become a critic of the effort, arguing that, even if CCSS does not impose any content standards in curriculum, PARCC somehow could be used as a tool to impose a nationalized curriculum, which he opposes. Thus, in stopping PARCC, CCSS falls on its own accord, the thinking goes.

These are interesting as much for what they include as what they leave out. First, they order the Department of Education – directed by the separate Board of Elementary and Secondary Education and its hired superintendent that runs DOE – essentially to rebid the contract for testing. The argument used is that DOE allegedly failed to follow state law in allowing a group procurement for the PARCC organization, because it could skirt competitive bidding laws -- despite the fact that the contract started with the same firm for using previous tests in 2003 and was renewed regularly since.

Notice that Jindal cannot unilaterally order DOE to scrap the tests, since constitutionally the authority to choose a test lays with BESE. Thus, he must create a secondary line of attack, over the process of contracting itself. Only if he can show it was violated can a chance exist to dislodge PARCC from a BESE that supports it.

But the problem is, there’s not any visible proof of that, which is why he also asked DOE and PARCC to turn over information to that effect. That request also is pursuant to PARCC having not gone through the competitive bidding process because four years ago it appeared to be the only game in town, an exemption granted under the authority of the state’s chief purchasing officer, assigned as a duty by statute to the state director of purchasing, a classified civil service employee. This produces a convoluted argument, based on the claim that even though four years ago when first concluded (with his support) there were no other vendors with products available (because CCSS just then was being formed), now there are others and so somehow even though the others didn’t exist back then that taints what happened back then. Even more fantastically, it tries to bring this retroactive perspective to whether the contract then awarded should have fulfilled the legal requirement of meeting with the approval of DOE’s internal contract review team.

But let’s say some definitive proof was brought forward that there was some kind of group purchasing that deliberately circumvented competitive bidding (keep in mind that the law says “units may not enter into a cooperative purchasing agreement for the purpose of circumventing this Chapter,” so if that purpose was not there, the action is legal), or that the decision then that the bidding was not competitive was incorrect and the review team erred. If DOE resists, these are matters only a court could decide, for the Division of Administration has no leverage on these matters, and if that went against DOE, then it must rebid this.

However, there’s no reason that the PARCC exam would not win that (in fact, the organization could subsidize it to lowball the figure). Further, PARCC already has been used in some classrooms and there’s nothing to stop DOE from using it again in all despite these dictates of BJ 2014-7. In response, the Division of Administration announced it was suspending payment on the existing contract to the vendor that is helping the state put the test together, citing the alleged improprieties in contract awarding that, on the surface, seem strained to be proven. So there's another court challenge begging to happen. And that might not even stop PARCC administration; for example, what if the company simply, with a nudge and/or assistance from PARCC, gave them to Louisiana for the next year?

Secondly, to defeat that purpose is the point of the other executive order, BJ 2014-6. That vetoes the rules issued by DOE to allow for administration of “standards-based assessments in English language arts and mathematics based on nationally recognized standards approved by BESE.” The Administrative Procedures Act gives the governor this power, and with BESE having chosen PARCC, this is Jindal’s attempt to stop its further implementation, therefore use.

Yet ultimately practically he can’t do it because of R.S. 17:24.4. This mandates that by the beginning of this academic year – in little over a month – that the state must use “nationally recognized content standards that represent the knowledge and skills needed for students to successfully transition to postsecondary education and the workplace.” Current tests used in Louisiana other than PARCC don’t do that, but by Jindal using the APA veto to prevent implementation of the only viable option at this point to follow the law (there’s no way any alternative that meets the criteria in law, such as the SMARTER Balanced Assessment Consortium test, could be implemented in time and likely anyway would draw the same objection from Jindal because it also aligns with CCSS), this makes the state break the law. And this is another thing that then would end up in court, to decide the murky question of whether the governor may veto a rule whereby that veto has the effect of breaking state law.

In addition, DOE asserts that the rule merely restates the statute, does not mention PARCC or CCSS, and therefore the veto really means nothing. But the rule does outline an implementation timetable for assessments, where if this one is vetoed then presumably the old one is followed -- in violation of state law. So, yet again, the practical interpretation of this may end up decided in court, whether DOE administers it anyway and Jindal disputes that or DOE brings up the matter in order to proceed with administration.

In any event, none of this exits the state from CCSS because Jindal cannot unilaterally do this. He notified that he relayed to two organizations behind CCSS “of Louisiana’s termination of participation in the Common Core State Standards Initiative,” but he has zero authority on his own to do so, needing the concurrence of BESE’s president Chas Roemer and Superintendent John White who have indicated that will not be forthcoming. It’s a futile and empty gesture unless and until the original memorandum of understanding that brought on PARCC can be invalidated.

This explains his targeting of cancellation of PARCC participation. But if BESE and DOE stand firmly behind it, the matter seems inevitably to produce lengthy, if not decided by the judiciary ultimately, conflict. In the meantime, this threatens no testing, creating a chaotic situation that opponents can use to accuse Jindal of lacking the statesmanship and temperance required of a chief executive – whether this applies to his current position, or any future attempt to regain the office, or serving as a chief executive at any level of government. Even if DOE keeps issuing rules to use a CCSS-based exam and he keeps vetoing him, he becomes very vulnerable to the charge that he’s obstructionist to the detriment of education in the state over something that either most in the public don’t really care about or of those that do there’s not even a definitive majority that opposes CCSS.

Nor does the hope that his Jefferson Smith-like resistance will sway minds in the end prevent this from happening. Even if somehow that gets enough BESE members or legislators to change course, the damage starts very soon, and any reconsideration that leads to this will happen too late to prevent carnage and ensuing resentment.

And if DOE additionally goes to court, or goes ahead unilaterally implementing and makes Jindal decide whether to take it to court, Jindal politically will have destroyed himself by this if the judiciary declares he can’t have a veto a rule thereby breaking the law and/or that acceptance of PARCC followed the law and/or DOA actions were illegal, for he convincingly can be painted as someone who did the wrong thing at the expense of the state. It may even emboldened critics to try to start unraveling his education reforms, if nothing else eroding the perception of his having policy successes in that area. Even if he were improbably to win these cases, it’s highly unlikely this would be resolved prior to the end of his term – and too late to bolster his credentials for any job-hunting in the federal government he might pursue for after early 2016.

Unless Jindal considers this purely a matter of principle and cares not a whit for its political implications, the only political benefit he could get out of this would be to use his actions as a demonstration to a national audience that he is the premier champion of states’ rights, particularly in the area of education, win or lose fighting to the bitter end what he perceives (now) as federal overreach, in a way that allows him to capitalize on this newly-found popularity. It might have been enough to have voiced reservations and attempted minor actions to demonstration resolve against it, even if they proved insufficient to reverse the tide, to create this impression.

Obviously, Jindal rather felt he had to go all in. To say this is a risky gamble is an understatement: in essence, he would have to hope the symbolism of his action and continued pursuit reaps rewards outweighing the costs of fighting a battle the evidence suggests he’s likely to lose, a battle for which there is no overwhelming desire to fight even among those who agree with him on many issues while many erstwhile allies oppose him on this effort, and of those costs from being seen as intransigently political to the point of putting ambition ahead of the deleterious consequences of his actions to educational delivery in his state instead of being viewed as courageously and correctly principled.

Even if he loses the substantive battle and PARCC and CCSS become entrenched in Louisiana, he could win the symbolic war in the raising of his national profile and providing a solid base on which to experience a future political career. But if that’s not the outcome, with this gambit he effectively ends after 2015 his elective political career.