BOSTON – The legal complaint from Governor Jindal's office clearly builds off Pioneer Institute's white paper “The Road to a National Curriculum,” co-authored by former U.S. Department of Education General Counsel Kent Talbert, Deputy General Counsel Robert Eitel, in addition to Bill Evers from the Hoover Institution at Stanford University. The publication was a joint release with the Federalist Society, the American Principles Project, and also the Pacific Research Institute.

In that paper, Talbert, Eitel, and Evers focus not on the broad issue of whether federal involvement in education is a constitutional question, although that's a matter by which all U.S. citizens and lawmakers ought to be interested. Rather, they ask if the Common Core and national testing consortia are legal under federal law.

As Governor Jindal's complaint restates, there are three federal laws that expressly prohibit any federal role in nationalized K-12 standards, testing, curriculum, or instructional materials. The General Education Provisions Act of 1970, the Department of Education Organization of 1979, and the ESEA (1965), as amended through the No Child Left out Act in 2001 (NCLB) “ban federal departments and agencies from directing, supervising, or controlling elementary and school curriculum, programs of instruction, and instructional materials.”

It is worth underscoring that two of these federal bans were originally signed into law by Presidents Lyndon Johnson and Jimmy Carter. Thus, advocates of Common Core and national testing are suggesting an insurance policy path that even these two Democratic presidents rejected as a bridge too far for that federal government.

In “The Road to a National Curriculum,” distinguished attorneys Talbert and Eitel note that the federal education department's practice, from 2010, of using discretionary Race to the Top grants to herd state education authorities into adopting national standards and tests is questionable. The same is true of the later 2012 round of Race to the Top grants that was created for school districts, and included the promotion of Common Core.

More clearly in violation of these federal restrictions are these four actions through the department:

  1. The conditional waivers to NCLB provided by U.S. Secretary of Education Arne Duncan haven't been approved by Congress. Past secretaries of the federal department of education have granted waivers, but never having a unilateral and material assertion of policy that's contradicted by existing federal law.
  2. The two consortia receiving over $350 million in federal funds include in their funding applications explicit recognition that they would develop curricular materials and instructional practice guides.
  3. The federal Department of Education has established a national technical-review board and process for that two federally-funded state consortia which are designing national assessments for the Common Core standards.
  4. The federal Department of Education has criticized states that have sought to exit Common Core and national tests.

Noted journalist George Will cited Pioneer's focus on the legal dimensions of Common Core inside a 2012 Washington Post column, with the following words,

As government becomes bigger, it becomes more lawless. As the regulatory state's micromanagement of society metastasizes, inconvenient laws are construed – by those the laws are supposed to restrain – as porous and permissive, enabling the chief branch to render them nullities.

And in a 2019 Washington Post column, Will wrote:

The Obama administration has purchased states' obedience by partially conditioning waivers from onerous federal regulations (from No Child Left out) and receipt of federal largess ($4.35 billion in Race to the peak money in the 2009 stimulus) on the states' embrace of the Common Core.

Citing research and work going back to 2010, The Boston Globe known Pioneer Institute as the “brains” and intellectual wellspring of the movement to end the most popular Core and also the nationalized testing consortia. The Institute believes that states, localities, and citizens need to develop truly world-class K-12 educational standards that prepare our public school students for authentic college-level work.

Other Pioneer research around the mediocre academic quality, the questionable legality, the cost, and data mining of scholars associated with Common Core can be found here, including a white paper authored by former Texas Commissioner of Education Robert Scott, with a preface by Iowa U.S. Senator Charles Grassley, A Republic of Republics: How Common Core Undermines State and Local Autonomy over K-12 Education, and Controlling Education in the Top,co-authored by Emmett McGroarty and Jane Robbins from the American Principles Project.