Common Core -- The Legal Case Against It

The adoption and implementation of Common Core (CCSS) in Nevada is patently ILLEGAL. Everything they are doing, everything they have done, and the way they have gone about it is illegal.

On the Nevada side,

According to the NRS 389.520, the authority to determine what STANDARDS will be imposed on Nevada's schools is assigned to the Council To Establish Academic Standards. 

NRS 389.520

1.  The Council shall:
     
(a) Establish standards of content and performance, including, without limitation, a prescription of the resulting level of achievement

Not the governor, not the Superintendent of Public Instruction, not the Department of Education, not the State Board of Education. Not even the Legislature, according to the Chairman of the Assembly Education Committee.

According to NRS 389.0187, the responsibility to translate those standards into a CURRICULUM for our schools is assigned to the state Board of Education. 

NRS 389.0187
1.  The State Board shall develop a model curriculum for the subject areas of English language arts and mathematics ... for K-12.
Not the Governor, not the Superintendent of Public instruction, not the Department of Education.

This same NRS 389.0187 also says that local schools MAY use those curricula AS A GUIDE in developing their LESSON PLANS. 

NRS 389.0187

5.  The model curriculum may be used as a guide by teachers and administrators in developing class lesson plans to ensure compliance with the academic standards

Not “SHALL use” but “MAY use.” Not as an imperative but only “as a guide.” The lesson plans shall not be imposed by any outside group --

Not the Governor, not the Council, not the Legislature, not the Superintendent of Public Instruction, not the Department of Education, not the State Board of Education, and certainly not all those who hold the copyright to the standards and have financial interest in CCSS-compliant tests and instructional materials.

On the federal side,

The “stimulus package” of 2009 sneaked in an allocation of 4-5 billion dollars to promote uniform standards throughout the states. It instituted a competitive program (“Race To The Top”) to distribute “awards.”

This law does not say that the states MUST adopt Common Core in order to apply or qualify. It was the “judges” of the “competition,” the US Secretary of Education, who did that. There is nothing in the law that gives him that discretion.

This law does not say that the mere fact of having applied (and therefore promised to adopt CCSS) irrevocably COMMITS the state to adopt CCSS. It is the US Department of Education that says that. There is nothing in the law that gives them that discretion.

This law does not say that states shall LOSE any grants they received, or shall FOREGO any future federal aid, if they do NOT adopt CCSS. It is the US Department of Education that says that.  There is nothing in the law that gives them that discretion.

The US Department of Education is doing so in violation of at least three federal laws, all of which contain language which specifically prohibits federal control over education in any form, and specifically instructs the federal government to support and strengthen local control over and responsibility for their local programs. See
* 20 USC 1213, PUBLIC LAW 105-220, General Education Provisions Act
* 20 USC 3403, PUBLIC LAW 96-88; 93 Stat. 668, Department of Education Organization Act
* 20 USC 6301, PUBLIC LAW 107–110 115 STAT. 1425, No Child Left Behind Act

This problem with CCSS is in addition to the greater issue that NOTHING in the Constitution allows the federal government to have a role in education (it's not listed among the enumerated powers), and that the implementation of CCSS is done in such a manner that it amounts to a gross violation of the 4th, 5th, 9th, 10th and 14th Amendments.

The federal requirement for compliance and testing, known as 20 USC 6311 and referred to in NRS 389.550, itself does NOT specify that states shall comply with CCSS, only that they demonstrate to the US Department of Education that they are in compliance with rigorous STATE standards.

Do you suppose THIS is why CCSS, plainly intended to be the ONE standard for ALL fifty states, is called Common Core STATE Standards?

Back on the Nevada side,

Governor Gibbons applied for Race To The Top in 2009. As mentioned above, the application is taken as a commitment to implement Common Core -- made long before the final standards were published.

The State Board of Education voted to adopt CCSS in 2010 (in an attempt to strengthen the application).

The State Board for Career and Technical Education voted to adopt CSSS in 2010. (Ditto.)

The Legislature approved SB14 (2011), and it became NRS 389.0187. (Ditto.)

"The State" has also formally selected SBAC for our longitudinal tracking program in 2012(?).

Governor Sandoval issued an Executive Order in June 2013 to set up a committee to ensure implementation.

In 2013 the Superintendent of Public Instruction, Dale Erquiaga issued two directives, one reconfirming Nevada’s commitment to Common Core, another to rule that students can NOT opt out of the massively intrusive testing requirements.

In light of NRS 389.520, NONE of this makes CCSS legal in Nevada. But it is all these misguided actions that the Governor, the Legislature, the Superintendent of Public Instruction, the Department of Education and the State Board of Education) are using as the legal basis for forcing the schools to adopt CCSS -- because, of course, the inescapable problem is that the ONE body specifically assigned to determine Nevada’s education standards, the Council To Establish Academic Standards, did NOT vote to select Common Core.

According to the NV Department of Education website, "Council to Establish Academic Standards" and "Meetings: Council to Establish Academic Standards," the Council met 3 times in 2010 and once in 2013. The meeting minutes show they “considered” adopting CCSS in April and September, and adopted the draft CCSS in May 2010 -- strictly in the context of the Race To The Top application and with reservations about adopting draft standards and possibly on condition of actually getting money from the feds. Mr. Bobzien, assemblyman and member of the Council, is on record telling to Council to let the legislature worry about the budget. 

THERE IS NO RECORD THAT THE COUNCIL HAD EVER VOTED TO ADOPT THE FINAL PUBLISHED VERSION OF CCSS.

The next meeting of record was in August 2013 when the Council considered the Nevada standards for physical education and science. Even if such a record were to miraculously surface one day, there is no evidence that anyone on the Council, the Board, the Governor’s staff or in the Legislature has actually read or studied the CCSS, or their actual or proposed implementations in other states, in all their gory details. 

The record DOES show that the Council voted only on the basis of a 15-page presentation from the CCSSI, which is of course nothing but glowing self-serving marketing propaganda totally at odds with the facts that are evident in the details. In the 2011 session, the Legislature voted on SB14 again only on the basis of similar presentations from the CCSS proponents (no one ever showed up against CCSS, not in the Legislature or in front of the Council).

And even if such a record were to surface one day, there is yet another problem with CCSS (in addition to violations of other sections of the NRS which require the timely publication of meeting minutes). The implementation of Common Core in specific academic courses includes consistent, deliberate de-emphasis, denigration and denial of traditional American values. This is in direct violation if at least one section of the NRS which is very specific on this issue; instruction in civics requires the study of and DEVOTION to American ideals.

NRS 389.020  Instruction in American government required

1.  In all public schools, ..., instruction must be given in American government, including, without limitation 

(c) The study of and devotion to American institutions and ideals

There are additional conflicts between Common Core and NRS Title 34 regarding testing and grading, which are too detailed to go into here. They only reinforce the fact that the education establishment in Nevada has no legal authority to impose the Common Core standards on the local schools, and the local schools have no obligation to obey them.

Why is the education establishment pushing CCSS so hard, in violation of the law?

What are We The People going to do about it?