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Why the Jindal Loss Was Expected Regarding La.’s PARCC Injunction

August 19, 2014

On August 19, 2014, District Judge Todd Hernandez ruled that the Jindal administration’s suspension of the Louisiana state testing contract was to be temporarily lifted until the pro-Common Core (CCSS) full case against Jindal and his administration goes to court. (For backstory, click here.)

I was surprised at the judge’s ruling because the Louisiana Department of Education (LDOE) spliced the Partnership for Assessment of Readiness for College and Careers (PARCC) assessment into an already-existing “sole source” testing contract with Data Recognition Corp (DRC).

Pearson has been awarded the PARCC assessment contract, not DRC.

It is possible that Pearson could hire DRC as a PARCC subcontractor. As it is, DRC has been hired as part of a team to develop assessments for the other federally-funded consortium, Smarter Balanced. However, there is no way that DRC is the sole source for PARCC.

This means that Louisiana will fund an extra vendor (DRC) in its not-so-“sole source” procurement of PARCC.

Testing contract laundering.

Thus, the judge’s decision surprised me.

However, I have since read pertinent sections of the court ruling, and it seems that Jindal’s attorneys tried to let the contracts “speak for themselves.” Thus, the judge appears to have missed the John White sleight-of-contract in grafting PARCC into what was supposed to be a contract used by DRC for transition to PARCC.

Consider this statement from the ruling:

Evidence presented proves there was much discussion among [the state board of education, the Division of Administration–DOA, and the Office of Contractual Review–OCR] relating to the contract with Data Recognition Corp (DRC) and its status as “Sole Source” vendor for the implementation of common core. This evidence indicates this activity took place as far back as December, 2010. The contract with DRC was eventually approved as a “Single Source” contract with a contract term that ran through 2015. [Emphasis added.]

What is missing here is that DRC could not be a “sole source” contract provider for CCSS because DRC has not been awarded the PARCC assessment contract. DRC was a “sole source” provider for the transition to the PARCC assessment.

DRC cannot be a sole source provider of PARCC. DRC must do business with Pearson in order to deliver PARCC to Louisiana.

I understand this. Then again, I have not only studied the documents but also heard DOA Chief Kristy Nichols explain the contracting and auditing processes.

I heard the explanation.

In contrast, Jindal’s attorneys apparently did not provide their own people to explain White’s grafting PARCC into the DRC contract. As noted in Hernandez’s decision:

The defendants did not present any witnesses at the hearing but did introduce documents during the examination of witnesses, and the defendant, Bobby Jindal…. There was not evidence presented at the hearing attempting to establish or prove any reason or reasons for any of the actions taken by the defendants in “retracting” or “suspending” the contract with DRC except what was testified to by plaintiff’s witnesses on cross examination and from what the court was able to read and review. The defendants further failed to produce any evidence that the plaintiffs have violated any law concerning procurement of state contracts. [Emphasis added.]

In short, it seems that Jindal’s defense team of Jimmy Faircloth handed over the DRC contract and expected the judge to “get it.”

Not good enough by a long shot.

Very poor move, in fact.

If having no expert testimony was Faircloth’s idea, Jindal should seriously consider retaining a better lawyer.

If it was Jindal’s idea in order to avoid cross examination, then he needs to realize he will be his own undoing in court.

Jindal’s defense attorney needs to get qualified individuals on the stand clearly explaining to the judge how White twisted the intent of that sole source contract into a means of avoiding proper procurement. This is not a case of “just hand the paperwork over to the judge and he’ll surely understand.”

As it is, Jindal now must face a judge who has already been primed to believe that Jindal’s defense has no merit.

The Jindal administration is seeking a stay of Hernandez’s ruling and an expedited writ of appeal to the First Circuit. They believe Hernandez is wrong.

Hernandez is wrong. However, Jindal’s defense really dropped the ball on this one– for whatever reason.

Get a contract procurement expert on that stand, or don’t be surprised at continued loss.

 

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7 Comments
  1. I recommended you to Jindal’s team.

  2. Anonymous permalink

    It’s almost like they’re playing a game of chicken…

    Jindal and White/Roemer probably have so much dirt on the other but want to hold their cards close ’til the end. It’s only taxpayer money, and public servants they are not.

  3. Reblogged this on Crazy Crawfish's Blog and commented:
    What Dr. Schneider explains is exactly what I was afraid would happen. I was one if the first folks to publicly support ans thank Jindal for his seeming change of heart on Common Core. Many folks told me this was all a carefully choreographed ruse. One of the first moves Jindal did was invite a score of Common Core opponents/leaders over for a photo op. (For some reason I was not invited.🙂 ) I wondered at the time if that was what this was all about. I was encouraged by his seeming vigor and persistence. However, this feeble attempt makes me second guess my earlier support. Common Core is still being taught in all our schools. The tests will be bought and administered. Jindal has allowed his own BESE appointees to vote to sue him without any form of reprisals (unlike Tammy Mcdaniel, a previous Jindal appointee to BESE who voted against Jindal’s will once (not even to sue him personally) and he demanded her resignation.)

    Jindal could have acted before the legislative session was over, and chose not to. All he has done is sew chaos in our education system. That is all Jindal has ever done since he first came to power. I suppose it was naive of me to think his latest moves would be any different. A pity. A shame. Another tragedy for Louisiana.

  4. I have a different take, although I certainly can’ be sure.

    I thought of the same ruse angle as Crazy Crawfish, and I have no doubt that Jindal isn’t capable of such a game, but I also think that he’s so far down the dump-the-Common Core road that he can’t back out now. So, I looked elsewhere for a reason.

    From what I recall from law school (so I’m writing generally and not about LA law specifically), winning a preliminary injunction (“PI”) is not easy. Courts don’t like to get the bum’s rush; they want to get the parties to argue the details in open court, which includes discovery and briefings, etc. So, a court faced with a PI on a very controversial issue—and the court here makes it clear that it isn’t comfortable refereeing a cage match between Jindal and the BSEE—will often take the conservative route and craft a decision to kick the issue up to the next court with as little disturbance of the status quo as possible.

    I think that’s what happened here. The court notes that Jindal and the legislature had gone along on CCSS for quite awhile and only now are they fighting. That could raise certain questions. The are issues about whether the contract in question was rescinded. More questions. There could be constitutional issues. Still more questions.

    Now, it may be case that the higher court is “polluted” by this decision. But I doubt it. Higher courts love to review lower court decisions—that’s their job. So, barring some sort of corruption (and yes, I know we’re talking about LA), I’m not too worried yet.

    I’m still hoping that the cases will go to trial. While that will take time, the release of documents, depositions, testimony, and the likely press circus, will provide all of us fighting this cancer invaluable help.

Trackbacks & Pingbacks

  1. Schneider: Why Jindal Lost in Court on Common Core and PARCC | Diane Ravitch's blog
  2. Common Core Chaos, Loss and Betrayal | Crazy Crawfish's Blog

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