Providing an excellent example of baseless judicial activism is Judge Todd Hernandez from the 19th Judicial District Court in Louisiana. In a decision starved of legal grounding and reasoning, Judge Hernandez prohibited Gov. Bobby Jindal from halting the implementation of the Common Core educational standards with executive orders BJ 2014-6 and BJ 2014-7 and the Office of Contractual Review’s retraction of the contract with DRC (Data Recognition Corporation) to assist with the introduction of Common Core.
In his ruling, Hernandez details many reasons as to why such actions may inconvenience the state’s attempt for uniform education standards, but not once in his five page opinion does he invoke a legal or Constitutional objection to the enforcement of Louisiana’s efforts to stop Common Core.
As a basis for his decision, Hernandez relies on early developments of Common Core standards in Louisiana. He notes that Jindal supported Common Core implementation and worked with the Board of Education to improve and reform education by adopting Common Core and PARCC testing. Because Jindal changed his mind, he rules “irreparable harm” has been caused to those who have been prepping for Common Core and PARCC, and therefore, Jindal’s actions must be stopped.
Never mind the faltering support for Common Core, even among teachers unions. And never mind the truism that circumstances change over time, and people adjust their opinions with a more accurate understanding of reality. Apparently, Hernandez feels that once you decide something, you cannot go back on it even if doing so is legally permissible:
“While the judicial branch should rarely, if ever, enjoin the executive branch of government claiming to be acting within its statutory authority, the court does in fact have the authority and should exercise such authority to enjoin the executive branch when the evidence submitted to the court supports the finding by a preponderance of the evidence that the conduct sought to be enjoined causes irreparable harm”
Indeed, as the ruling indicates, Gov. Jindal’s executive order has caused “irreparable harm” to those who have invested time and money to prepare for Common Core initiatives. As a result, testing standards remain uncertain for this school year, leading to a “state of chaos” and the “possibility of teachers, schools and students suffering.”
“With each passing day,” Hernandez pens, “teachers and parents lose time preparing students for high stakes testing, and there is a lot riding on the student’s successful performance.” It is clear that Hernandez’ ruling primarily operates from policy preference for what Common Core brings to the table rather than any real legal objection.
Perhaps high stakes testing is where the problem lies. Instead of focusing students only on standardized tests, perhaps local teachers should be autonomous and encouraged to develop each student’s unique creativity, skill and thirst for knowledge rather than restricted inside the parameters of national benchmarks. We saw the failure of centrally sanctioned education reform with No Child Left Behind, and we are beginning to see it again with Common Core. Maybe Hernandez should consider the real and emerging perception that the threat of irreparable harm to public education is the Common Core standards themselves.
Gov. Jindal is certainly pondering those questions, which is what led to this case in the first place. “We’re very alarmed about choice and local control over curriculum being taken away from parents and educators,” said Jindal. “Common Core has not been fully implemented yet in Louisiana, and we need to start the process over. It was rushed in the beginning and done without public input.” He continued: “We can certainly have high standards without giving up control of Louisiana’s education system to the federal government. If other states want to allow the federal government to dictate to them, they have every right to make that choice. But education is a primary responsibility of states, and we will not cede this responsibility to the federal government.”
Hernandez himself even admits the Office of Contractual Review was not acting out of line by putting the contract with DRC under review: “While the Office of Contractual Review may have the statutory authority to review, approve and audit state contracts, the collective action of the defendants have caused considerable harm to the public education system in Louisiana.” In other words, while the OCR’s action is entirely legitimate, it reverses all the hard work that has been done to prepare for Common Core implementation, which is wrong and can’t happen because I say so. With this line of logic, the start of any government initiative means it should never be rescinded, no matter how detrimental that action may turn out to be.
While the fallibility of common core remains up for debate, Judge Hernandez took matters into his own hands with his ruling on this particular issue. His legislating from the bench on education reform is void of any legal foundation and shows judicial activism at its worst.