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The states versus Secretary Duncan

Why Mary Fallin has a case but Bobby Jindal doesn’t

Last week, Louisiana Governor Bobby Jindal sued the U.S. Department of Education over the Common Core State Standards (CCSS), with a particular focus on the role that Race to the Top (RTTT) played in encouraging their adoption. And three days later, rumors arose that Oklahoma Governor Mary Fallin might haul that same agency into court for revoking its No Child Left Behind (NCLB) waiver. Together these two suits bring some of the most criticized recent federal education policies under legal scrutiny. But President Obama’s conditional waivers are much more vulnerable to legal challenge than is his Race to the Top initiative. Here’s why:

Jindal’s lawsuit claims that the federal government has used legislation to incentivize state adoption of the CCSS. The complaint asks the court to (1) declare that these actions violate the United States Constitution and a number of federal statutes and (2) enjoin the federal government from continuing. There are a number of lenses through which the court could view these actions.

Let’s first look at the constitutional claim, which has virtually no chance of success. Louisiana alleges that the feds’ standards push violates state sovereignty under the Tenth Amendment, which reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

The federal Race to the Top program, the primary target of Jindal’s compliant, is an example of a grant-in-aid program, a form of federal-state cooperation in which the feds condition subsidies on certain state action. Such programs are very common, numbering 1,122 in 2011. Examples include tying federal highway money to a legal drinking age of twenty-one or conditioning state funding on certain protections for students with special needs.

The Supreme Court has repeatedly upheld the constitutionality of these kinds of programs, typically after determining whether they violate Article I, Section 8, Clause 1 — also known as the Taxing and Spending Clause. To answer this question, the Court subjects the program to a five-prong test:

  1. The exercise of the spending power must be in pursuit of “the general welfare.”
  2. The conditions of the funding must be stated unambiguously.
  3. The conditions must be related to the federal interest in particular national projects or programs.
  4. The conditions must not mandate unconstitutional state action (e.g., cruel and unusual punishment).
  5. The program must not be coercive (i.e., the states must actually have a choice of whether to participate).

RTTT very likely passes each test. The competition was created as part of the American Recovery and Reinvestment Act of 2009 (ARRA). RTTT was intended to improve American education, which very likely meets the test of “in the pursuit of the general welfare” and “related to the federal interest” under the banner of ARRA (prongs one and four). The conditions are stated quite clearly (prong two). And nothing in RTTT seems to mandate unconstitutional state action (prong four).

Prong five, whether the program is coercive, deserves special attention — even though it, too, shouldn’t pose a problem to RTTT. The Court has clearly stated that for a program to violate this prong, states must effectively not have a choice in whether to participate. The most recent example of such coercion was the Affordable Care Act. The government tried to tie state compliance to all of that state’s Medicaid funding — over 10 percent of most states’ annual revenue. RTTT, in stark contrast, was optional, as evidenced by the fact that four states didn’t apply at all. Its $4 billion is a pittance of the education system’s $600 billion annual budget.

The statutory question is a bit trickier. The General Education Provisions Act of 1965 (GEPA) and the Department of Education Organization Act of 1979 (DEOA) share a common provision that states that the Department of Education cannot “exercise any direction, supervision, or control over the curriculum [or] program of instruction . . . of any educational institution, school, or school system.”

The feds will likely argue that standards are neither curricula nor programs of instruction. Fordham would agree, holding that standards “should define what students should know and be able to do by the end of each grade.” Local leaders then select or develop curricula, which includes “selecting the programs, setting the scope and sequence, and determining the instructional strategies that teachers will use to help students meet the expectations.” Moreover, different locales may utilize different programs of instruction, such as Direct Instruction or Success for All, neither of which the standards mandate.

Plus, RTTT is a competitive grant program. States don’t have to apply. And over the years, Congress has authorized and appropriated funds for discretionary grant programs in other curricular areas, such as STEM education and American history. In doing so, the legislature indicated that these funding mechanisms did not direct or control curricula or programs of instruction. Indeed, the myriad curricular choices districts make between and even within schools should offer de facto proof that the feds are not directing, supervising, or controlling instruction.

The Department of Education can also point to clear Congressional authorization for its design of the Race to the Top program. The applicable portion of the ARRA (the statutory basis for RTTT) says that the Secretary may base RTTT grants on state application information “and other such criteria as the Secretary determines appropriate.” This is a pretty broad grant of power. When a statute gives an agency “the authority to speakwith the force of law,” and it “explicitly ‘left a gap for the agency to fill,’ the reviewing court shall not overturn an agency’s interpretation unless it is ‘arbitrary, capricious, or manifestly contrary to the statute.” This is known as Chevron Deference — a particularly high bar for legal challenges.

Making matters worse for Jindal, this level of deference might also apply to the question of whether standards count as curriculum. Neither GEPA nor DEOA defines “curriculum” or “program of instruction,” so even through this lens the Department of Education’s stance that standards are something different may hold.

In sum, Jindal’s statutory case depends on an unlikely series of favorable decisions. To win, a judge would probably have to hold that (1) standards are synonymous with curricula and (2) the Department of Education isn’t entitled to deference. Neither is likely.

What about the Sooner State?

By contrast, Governor Mary Fallin and Oklahoma’s potential case is much stronger. Last week, the Department of Education announced that it would revoke the state’s NCLB waiver, citing Oklahoma’s failure to adopt college- and career-ready standards, and subjecting the state once again to the law’s graduated annual yearly progress penalties.

NCLB has had a waiver provision since its inception in 2001. Critically, however, the statute says nothing about whether the Secretary of Education can impose conditions on states in return for the flexibility provided by waivers. The question, then, is whether the agency has the constitutional authority to act unilaterally where an authorizing statute is completely silent. Much like Jindal’s case, this brings up the five-prong federal grant-in-aid program constitutional test and Chevron Deference; but unlike the Bayou State’s slim shot at success, Oklahoma might enter the courthouse with a strong hand.

Refer above to the five-prong constitutional test for whether a federal grant-in-aid program violates the federal government’s Spending Power. The problem lies in the second prong. “If Congress desires to condition the States’ receipt of federal funds, it ‘must do so unambiguously . . . enabl[ing] the States to exercise their choice knowingly, cognizant of the consequences of their participation’” (Dole citing Pennhurst). NCLB says nothing about conditions in its waiver provision, not even hinting at Secretary discretion (as, e.g., ARRA does). Nor is there any mention of “college- and career-ready standards” in the statute. As such, Oklahoma would seem to have a legitimate argument that the Department of Education’s conditional waivers violate the Tenth Amendment.

It’s also quite possible that a court would find that the Department of Education exceeded its congressionally delegated statutory authority. Congress’s silence on the agency’s waiver authority is once again the problem. The Secretary’s ability to condition these as he sees fit would be a vital part of NCLB’s waiver provision. Unfortunately for Mr. Duncan, Congress doesn’t use vague terms to grant agencies the power to fundamentally alter statutes — “it does not, one might say, hide elephants in mouseholes.” Yet by setting conditions that Duncan chooses unilaterally, NCLB waivers have the potential to alter NCLB significantly. Astwo Harvard Law School professors state in a 2013 Columbia Law Review article, “For those states that qualify for the waiver, it creates a new regime.” In short, Duncan may have overreached his authority here.

To be sure, the Sooner State’s case is not a slam dunk. The Congressional Research Service, citing “the novelty of the question,” says that it’s “unclear how a reviewing court would rule on such an issue.” Nevertheless, the case against conditional NCLB waivers is much stronger than the case against Race to the Top. If both Louisiana and Oklahoma move ahead with legal action, we might expect a split decision.

This post originally appeared on the Thomas B. Fordham Institute’s Flypaper blog. The Thomas B. Fordham Institute is an education policy think tank located in Washington, D.C. The original can be found here: