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Making the illegal, unconstitutional case against Common Core State Standards

In Uncategorized on August 10, 2013 at 2:54 PM

MAKING THE CASE AGAINST (THE ILLEGAL) COMMON CORE STATE STANDARDS

August 5, 2013 by Thais M. Alvarez

There is growing controversy over the Common Core State Standards (CCSS) throughout the United States.  Grassroots movements are springing up everywhere in an attempt to educate voters who have never heard of the CCSS, hoping that they will join the ranks of those fighting against the CCSS.  Political activists’ efforts have also sought to address and educate school board members and other elected officials, such as county commissioners, representatives, senators and governors of the dangers of CCSS.  The greater goal for these activists is to gain the political commitment of elected officials for the repudiation of the already (emphasis added) implemented CCSS.
At this juncture, one may ask why political activists have to educate voters, and more specially, elected officials.  The answer is simple: mainstream media, for the most part, has not reported on the CCSS.  Moreover, the federal government has conducted a stealth campaign and strong-armed the states into adopting the CCSS. 
In effect, if states do not adopt and implement the CCSS, they are ineligible for federal funding.  Federal funds, which are in essence the tax dollars of citizens, should not be used to bribe or to threaten states into taking certain action, especially when acceptance strips states of constitutionally protected rights.  Likewise, the federal government abuses its power by making the receipt of federal funding conditional on the adoption of federal policies, again, when those policies strip the states of constitutionally protected rights. 
At first glance, although uprooting the CCSS may seem like a daunting task, since it has already been implemented, it should not be challenging for the simple reason that the CCSS are illegal.  Once the states and all of their elected officials are made aware of this, they will realize that they have a duty to uphold the U.S. Constitution, as well as other federal, state and local laws.  Elected officials should be held accountable by U.S. taxpayers, if they fail to dismantle the CCSS program.  More specifically, elected officials should be held accountable for acquiescing into adopting illegal policy that will, in fact, waste billions of U.S. taxpayer dollars.  Elected officials should know better.    
This article makes the case against the Common Core State Standards. 
 
PART I.  “GOOD” LAW
The Constitution of the United States
The U.S. Constitution is also referred to as the “Supreme Law of the Land”.  Article 1, Section 8 of the U.S. Constitution, which speaks to the powers vested in Congress, does not enumerate education as one of the powers vested in Congress.  Likewise, Article 2, which outlines the powers of the executive branch, or the president, does not assign to the position the authority to speak to matters of education.  Article III which speaks to the powers of the judicial branch does have the answer, well, at least in part.  Article III, which creates the judicial branch of the federal government provides that if there is a conflict or a question of law arising as to the U.S. Constitution, the U.S. Supreme Court shall decide on the issue.  Since the U.S. Constitution is silent on the matter of education, the issue has been addressed and resolved by the U.S. Supreme Court, as explained below.[1]
The Supreme Court of the United States
In San Antonio Independent School District v. Rodriguez (1973), the U.S. Supreme Court held that education “is not among the rights afforded explicit protection under our Federal Constitution.  Nor do we find any basis for saying it is implicitly so stated.”  This coupled with Article X, otherwise known as the 10th Amendment, of the Bill of Rights which provides that “powers not delegated to the U.S. by the Constitution, nor prohibited by it to the States, are reserved to the States,” establishes that  the creation of education policies is reserved to the state and local governments.[2] 
The Constitution of the State of Florida
Consistent with the foregoing holding from the U.S. Supreme Court, Article IX of the Florida Constitution speaks to the matter of education. 
More specifically, Section 1(a) provides that education is “a paramount duty of the state to make adequate provisions for the education of all children residing within its borders.”  Section 4(b) further dictates that: “[A] school board shall operate, control and supervise all free public schools within the school district.”[3]   
Given the fact that local school board members are elected officials, it follows that the citizenry directly influences local educational policies through their power of the vote.
The Florida Statutes
The Florida Legislature is vested with the power to enact statutes to carry out the intent of the Florida Constitution.  To that end, Title 48 of the Florida Statutes provides for the Education Code which states as follows:
 
Public education is a cooperative function of the state and local educational authorities. The state retains responsibility for establishing a system of public education through laws, standards, and rules to assure efficient operation of a K-20 system of public education and adequate educational opportunities for all individuals. Local educational authorities have a duty to fully and faithfully comply with state laws, standards, and rules and to efficiently use the resources available to them to assist the state in allowing adequate educational opportunities.[4]
This should speak for itself, without the need to embellish.   
PART II.  “BAD” LAW
It happens all the time.  Judges make “bad law” from the bench when they apply or interpret the law incorrectly.  Likewise, uninformed or corrupt legislators propose bills that are enacted into laws that are either blatantly unconstitutional, or at the very least, serve as the impetus for governmental abuse.  The later is what has happened as it relates to the law of education as a result of the enactment of the three (3) federal education acts, as explained below. 
It could be argued that these laws are, in and of themselves, unconstitutional for the simple reason that they seek to control matters related to education.  And, as the foregoing legal analysis demonstrates, the state and local governments, not the federal government, should be involved in the matters related to education.  
Elementary and Secondary School Act of 1965 (ESEA)
With the stroke of a pen, in 1965, President Lyndon B. Johnson, changed the extent to which the federal government would be involved in education.  At the time the law was enacted, during the Civil Rights Movement, the law was deemed necessary in that it would seek to address the issues of the time.  The law reads: 
 
Nothing in the Act shall be construed to authorize an officer or employees of the Federal Government to mandate, direct, or control a State, local educational agency, or school’s curriculum, program of instruction, or allocation of State and local resources, or mandate a State or any subdivision thereof to spend any funds or incur any costs not paid for under the Act.[5]
Department of Education Organization Act (DEOA)
This is the Act which created the Department of Education (DOE) in 1979.  At the time, many members of the U.S. Congress expressed their concerns over the creation of the DOE.  Today, many assert that the DOE should be abolished because, through the years, it has developed policies and programs that encroach on the constitutional rights that state and local governments have over matters of education.  The DOE has done this in violation of the letter of the law, as well as in disregard of its legislative history and intent.  
The DEOA provides that:
No provision of a program administered by the Secretary or by any other officer of the Department shall be construed to authorize the Secretary or any such officer to exercise any discretion, supervision, or control over the curriculum, program of instruction, administration, or personnel of any educational institution, school, or school system, over any accrediting agency or association, or over the selection or content of library resources, textbooks, or other instructional materials by any educational institution or school system, except to the extent authorized by law.[6] 

When analyzing any legal primary source, one would be remiss if one only reads the letter of the law.  That is, to fully understand the spirit of the law, one also needs to read the written commentaries or the legislative history that follows.  In the instant case, as it relates to the DEOA, in Finding 4 of the DEOA, Congress underscored that:
[I]n our Federal system, the primary public responsibility for education is reserved respectively to the States and the local school systems and other instrumentalities of the States.[7]

It should also be highlighted that Congress made its intentions clear when it said:
It is the intention of the Congress in the establishment of the Department to protect the rights of State and local governments and public and private educational institutions in the areas of educational policies and administration of programs and to strengthen and improve control of such governments and institutions over their own educational programs and policies.  The establishment of the Department of Education shall not increase the authority of the Federal Government over education or diminish the responsibility for education which is reserved to the State and local school systems and other instrumentalities of the States.[8]

A close reading of the ESEA and the DEOA juxtaposed with the CCSS, especially the implementation of the CCSS, make it clear that the federal government is in fact mandating, directing and controlling curriculum. 
Although proponents of the CCSS argue that the CCSS only impose “standards,” rather than “curriculum,” professionals in the field of education understand that curriculum is developed from standards, and therefore, to impose a certain set of standards, as the federal government is doing through the CCSS, is tantamount to also imposing curriculum.  Moreover, assessments are based on the curriculum which assess whether students achieve demonstrated proficiency of the CCSS standards.  Standards, curriculum and assessments are all intrinsically linked, such that, the effect is that they are all one and the same. 
To make the point take into account what the educational experts say:      
Dr. Greene has stated, “To make standards meaningful they have to be integrated with changes in the curriculum, assessment and pedagogy.”[9] 
The Federal Secretary of Education, Arne Duncan, has also acknowledged the nexus between standards and curriculum when he stated that “curriculum can only be as good as the academic standards to which the assessments and curriculum are pegged.”[10]    
Thus, for the federal government and the proponents of the CCSS to conclude that the CCSS do not dictate curriculum and assessments, both of which the federal government is prohibited from doing, is to lie to the American people.  
General Education Provisions Act (GEPA)
Similar to the above-mentioned laws, GEPA provides:
No provision of any applicable program, shall be construed to authorize any department, agency, office or employee of the United States to exercise any direction, supervision, or control over the curriculum, program of instruction, administration, or personnel of any educational institution, school, or school system, or over the selection of library resources, textbooks, or other printed material by any educational institution or school system, or to require the assignment or transportation of students or teachers in order to overcome racial imbalance.[11]
In addition to the above-stated commentaries relating to curriculum, it is noteworthy to underscore that this Act goes a step further to limit the power of the federal government over the “selection of library resources, textbooks, or other printed material by any educational institution or school system.” 
This notwithstanding, the federal government has given two state consortia, Partnership for Assessment of Readiness for College and Careers Consortium (PARCC) and SMARTER Balanced Assessment Consortium (SBAC), $330 million dollars to begin the development of digital tools and libraries. 
To use their words, the two consortia have stated as follows:
PARCC has stated:
 
PARCC’s initial proposal calls for the development of a digital library of tools…the broader set of tools in the library will provide choices and supplemental materials (beyond the instructional units) for teachers to use.  The development of the library also will identify materials that can be used to inform the development of the instructional units or even become the instructional units, perhaps with minor modification.[12]
SBAC, also provides that it will:
 
[D]evelop curriculum materials…contract with professional organizations, universities and non-profit groups…to adapt their curriculum materials to SBAC specifications to upload to the digital library.[13]
The stated intentions of both consortia juxtaposed with GEPA clearly violate the letter of the law.  There is no need for further analysis.     
Case Closed:  Common Core State Standards is Illegal
In light of Part I, one questions why there was ever a need for Part II.  After all, Part I speaks for itself in that the federal government should not be involved in matters as they relate to education.  Even the federal statutes, explained in Part II, confirm that.  The Acts’ language is superfluous and their enactment arbitrary.        
As stated above, it should not come as a surprise for the reader to learn that at the time Congress set out to enact the DEOA there were numerous members of Congress who objected to its enactment.  These Congressional leaders, in their infinite wisdom, could anticipate and foresee what is happening today with the implementation of the CCSS when they stated their objections to the enactment of the DEOA andthe consequent creation of the DOE.  They accurately predicted:
 
If we create this Department, more educational [decision-making] as to course content, textbook content, and curriculum will be made in Washington at the expense of local diversity.  The tentacles will be stronger and reach further.  The Department of Education will end up being the Nation’s super [school board].[14]
Almost a quarter of a century after those words were memorialized, their prophetic nature becomes apparent.  The tentacles of the DOE are infringing on local diversity, such that it is now acting as a national school board.  To that end, not a single local school board in the nation had an opportunity nor the intention to place the issue of whether “the” local shareholders approved of the CCSS before them. 
But, fret not, we, the people, are here.  We are here to send a clear message to the local school boards across the nation objecting to this insidious, subversive and stealth campaign, otherwise known as the Common Core “State” Standards.
It should be pointed out that the title, Common Core “State” Standards, begs the question:  Why is the word “State” part of the title when the states had nothing to do with their creation or development?    
The more pressing question, however, is:  Will elected officials heed to the voices of, we the people, and uphold the sanctity of this Constitutional Republic, remembering that the source of their power was granted to them by, we, the people?
 
[1] U.S. Const.
[2] San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973)
[3] Fla. Const. art. IX, § 4(b).         
[4] § 1000.03(3), Fla. Stat. (2012).
[5] 20 U.S.C. § 7907(a).
[6] 20 U.S.C. § 3403(b).
[7] 20 U.S.C. § 3401(4).
[8] 20 U.S.C. § 3403(a).
[9] Robert S. Eitel and Kent D. Talbert, The Road to a National Curriculum, Pioneer Institute, August 5, 2013, http://pioneerinstitute.org/download/the-road-to-a-national-curriculum/
[10] Id.
[11] 20 U.S.C. § 1232a.
[12] PARCC PROPOSAL FOR SUPPLEMENTAL RACE TO THE TOP ASSESSMENT AWARD 1 (2010), availableat http://www.edweek.org/media/parccsupplementalproposal12-23achievefinal.pdf
[13] Robert S. Eitel and Kent D. Talbert, The Road to a National Curriculum, Pioneer Institute, August 5, 2013, http://pioneerinstitute.org/download/the-road-to-a-national-curriculum/
[14] H.R. REP. No. 95-1531, at 47 (1978). 

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