The Louisiana state Board of Elementary and Secondary Education (BESE) voted Tuesday 6-3 to hire outside lawyers to pursue a lawsuit against Gov. Bobby Jindal (R) for removing his state from its Common Core test consortium.
The decision once again underscores the national debate sparked by the controversial Common Core standards regarding the power of the federal government and its often allied state boards of education over the elected representatives of the people, local school districts, and parents.
As nola.com reports, BESE came to its decision to hire attorneys after nearly six hours of debate and the failed attempt by three board members to keep Louisiana’s current tests in place for one more year. The board will meet again to actually authorize filing a lawsuit.
Breitbart News reported June 28 that a heated battle between Jindal and the state’s superintendent John White developed immediately following the governor’s decision to remove Louisiana from the controversial Common Core standards and from the Partnership for Assessment of Readiness for College and Careers (PARCC), which is developing a test aligned with the nationalized standards for its member states.
Jindal won the approval of grassroots groups opposed to the Common Core standards when he removed his state from PARCC. White and the state’s board of education president, however, immediately declared that Jindal’s move was illegal and defiantly asserted that Louisiana “will implement the Common Core State Standards, as well as… PARCC for the 2014-2015 school year.”
Jindal announced that he removed his state from PARCC based on the Louisiana Department of Education’s (LDE) unlawful decision to bypass the state’s procurement law which requires an open bidding process.
“PARCC does not allow a competitive bidding process which is required under Louisiana law,” the governor said during a press conference on June 18. “BESE didn’t follow the rules.”
Within hours of White’s statement that Common Core will continue, however, the state’s Commissioner of Administration Kristy Nichols launched an investigation into the superintendent’s use of a 2003 testing contract to bring the PARCC test into Louisiana, a move that suggested he was attempting to maneuver around the state’s competitive bidding contract procurement laws.
White, however, who is supported by BESE president Chas Roemer, argued that it was Jindal who was breaking the law by removing the state from PARCC.
In a legal memorandum released last Thursday, however, Thomas Enright, Executive Counsel to the Governor, debunked the claims made by White and Roemer that Jindal’s action to remove Louisiana from the Common Core standards and PARCC was illegal.
According to nola.com, BESE wants to use its omnibus testing contract to purchase PARCC’s questions, but Jindal’s Division of Administration states such a move is outside the scope of the contract.
“We’re at a crossroads,” said White. “It’s not a crossroads about Common Core. It’s not a crossroads about PARCC. Finance and purchasing have collided with academic policy, and there’s a question about who makes the decision.”
Similarly, Roemer argued that Jindal’s team was overstepping his constitutional authority by dictating the content of state tests.
“Who gets to determine the educational content of our assessment, and can that be determined through the procurement [process]?” he asked.
Nichols, however, said, “Today’s action boils down to one simple thing: BESE voted to hire outside counsel to determine if the Department of Education should follow state procurement law. We think the law should be followed.”
“The possibility that BESE would file suit over this issue is disturbing when they clearly have not followed the procurement law,” said Louisiana state Rep. Brett Geymann (R) in a statement to Breitbart News. “The Governor, in his authority, has required an RFP [request for proposals] process for the assessment which is not only state law but also guarantees we are getting the best available product on the market.”
“BESE and the Department of Education, who want to sole source the PARCC contract, have done a poor job in the entire process and this possible lawsuit is only hurting the students,” Geymann continued. “BESE and the DOE should use the existing Leap and iLeap tests in place now and then enter into the competitive bid process for the future assessment, begin development of our own standards, and drop the idea of a lawsuit.”
“Anything short of that is an exercise in arrogance and lack of respect for the wishes of the majority of the people,” he added.
A lawsuit “is probably the only way out of this situation,” said Barry Erwin, president of the Council for a Better Louisiana (CABL), one of the leading state organizations that have lobbied for the Common Core standards, according to The Advocate.
During education committee hearings, parents reported to Breitbart News that Stephanie Desselles of CABL engaged in ridiculing behavior which included “snickering” and “laughing” at parents as they testified against the standards, to the point of being “disruptive.”
Roemer said the law firms that have offered to represent BESE without charge are Preis Gordon APLC, in Baton Rouge, and Barrasso Usdin Kupperman Freeman & Sarver LLC, in New Orleans.
PARCC has been in the midst of its own controversy since a New Mexico judge ruled at the end of May that its state officials must review a protest filed by American Institutes for Research (AIR) prior to moving forward with what could be a lucrative contract awarded to education giant Pearson by PARCC.
The judge said the RFP brought forward by New Mexico officials was “ambiguous” regarding where protests against the bidding process were to be submitted.
The contract awarded to Pearson was described by James Mason, a Mississippi Department of Education state leader for PARCC, who was a member of the negotiating team for the Pearson contract, as one of “unprecedented scale.”
PARCC state officials said that though a number of other education companies had inquired about the consortium’s request for proposals for the project, the fact that Pearson ultimately was the only bidder was not an outcome that should draw questions about the soundness of PARCC’s process.
In its letter of protest to New Mexico officials, AIR claimed that the solicitation for bids improperly “bundled” assessment services to be provided in the first year of the tests with work in subsequent years, a practice that unfairly restricts competition and favors Pearson since work after the first year would rely on a content/delivery platform already engineered by Pearson. Such an arrangement would require vendors other than Pearson to develop an assessment system with only cursory information regarding costs, etc.
According to AIR, the “bundled” system would allow Pearson to “transform the advantage it enjoys as the year-one [content/delivery] platform vendor to an advantage for subsequent years of the program,” as Education Week reported.
In essence, AIR’s legal action argues that as a result of the system used to determine the award, Pearson would end up having a “monopoly on completely different work for the next seven years.”
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