Tuesday, November 19, 2013

Don Quixote Sues Kentucky Over Common Core

From time to time Kentucky Tea Party activist David Adams takes a break from trying to shut down the government and obsessing over poor Kentuckians access to healthcare and wanders into my area of interest - public education. Last week, David announced on Facebook that he had filed suit against the state of Kentucky over Common Core arguing that the state's adoption of standards before they were finalized constituted an unconstitutional mismanagement of the schools. Ha!

We had a little exchange.

Text of Kentucky Common Core lawsuit http://t.co/FpXxT6NfDF
Text of Kentucky Common Core lawsuit
  • 22 people like this.
  • Richard Day Wow. Talk about frivolous crap clogging the court system! This is a pristine example. You may want to at least read SB 1 where the General Assembly took affirmative action opening the door for Common Core. Are you planning to argue that the legislature can't pass laws governing curriculum? This lawsuit is going nowhere, Don Quixote.
  • Denise Dusseau Must be a liberal thing.....passing healthcare and curriculum without even knowing what is in it....
  • Richard Day Denise, If that makes you feel better, fine. I never read David's healthcare effort and don't have an opinion on it. But sometimes you fight the good fight, and move on. I get that...and even appreciate that. But if this suit is indicative of the quality of suits being brought by David...well, it's just embarrassing. It's a poorly conceived suit. Betcha a nickel it goes nowhere.
  • David Adams SB 1 took no affirmative action to commit Kentuckians to signing over their rights to the federal government with little to no appropriate due diligence.
  • Denise Dusseau My money's on David and his effort 100%
  • Phyllis Sparks What have you done, Richard, to help correct the wrong brought on by our state and Federal government? Thank you, David, for your unwavering diligence and support.
  • Jennifer Deweese Thank God for you, and your perseverance for the right thing. You are AWESOME!!!!
  • Richard Day Sorry David. Your argument won't fly. The Gen Assembly with a Republican sponsored bill required an internationally benchmarked curriculum that CCSS matched. Time will tell...but you're looking at a loss here.
  • David Adams SB 1 doesn't lock us in to Common Core and the Kentucky Constitution requires we get out.
  • Richard Day No, but it allows the choice.
  • David Adams Signing up for something to find out what's in it is not a choice, it's the dictionary definition of waste, management and political influence.
  • Richard Day Give me a break. The record clearly shows that while the draft was not "final," the department knew very well what was in it. And the Commissioner, who serves on the Chief State School Officers Board for goodness sake, should have been an indispensable party, but you left him out for some reason. The mismanagement discussion in Rose v Council was fiscal - it's a school finance case afterall, and you should know that. You seem to be trying to pound a square peg into a round hole. If that's what you want to do, so be it. But please, be a man and don't whine when the effort falls flat.
  • Rick Duncan Try to be a winner not a whiner David.....oh wait a minute....whining is part of being a teapublican, time to loosen up your tin foil hat.
  • David Adams Richard, if you don't recognize the fiscal implications of Common Core you should probably just go back to being not interested.
  • Richard Day The fiscal implications are no different from any other curriculum the state might adopt - except that if Kentucky had tried to build its own internationally benchmarked curriculum with college and career ready standards, also permissible under SB1, it would have likely been much more expensive and taken much longer to create. When was I not interested in public school issues, or more particularly, the Rose case?
  • David Adams Do you really think we have solved any real problems with Common Core? Wouldn't it have been cheaper and likely more effective to just borrow what Massachusetts already had?
  • Phyllis Sparks Expensive? Look at the billions of dollars spent by the Federal government through Race-to-the-Trough just to get states to adopt it. If CCSS is what you say it is, why the bribe?
  • Richard Day David: Perhaps, but it doesn't mater what I think about CCSS. The authority rests with the elected General Assembly and they get to choose. As you know, the US Constitution makes education a province of the states (many more debatable points exist here). If the states have the power to control education, they also have the power to throw in together and cooperate in grants, multi-state programs, or in this case, multi-state curriculum development (which was a Republican idea to begin with). The state constitution makes the General Assembly responsible. The General Assembly didn't direct the state to adopt the Massachusetts curriculum. Instead they approved a Republican sponsored bill that called for a particular type of curriculum, and the state agencies zealously went to work on it. Now, three years later, you have suddenly become interested...following the RNC's lead I might add. One might argue that your action here, as elsewhere, is explicitly political. According to your tortured logic, if your suit is construed as political - is it therefore unconstitutional? We both know that your suit won't be thrown out because it's political. There are several other reasons the court might choose...beginning with standing.
  • David Adams Keep talking, Richard.
  • Richard Day Was that a response?...or a punt?
  • David Adams A suggestion. And one I wish you would seriously consider. Volumes have been written about both taxpayer standing in Kentucky courts and legislative responsibilities in carrying out their duties. You are unaware of these things, as your continued typing demonstrates.
  • Richard Day Tell you what...you selected the venue. And I'm satisfied to let the court decide. Let's see who turns out to be correct. In the meantime, I'll take your advice, and as time permits, I'll track your progress on Kentucky School News and Commentary. tap tap tap tap tap

  •  ~
    • David Adams Shannon, Terry Holliday didn't sign on to the resolution signing Kentucky up for ObamaCore. Section 183 requires the legislature to protect us from this nonsense which they have not done.
    • Denise Dusseau Great job! Thank you David!
    • Richard Day Better hurry. I don't think this case is going to last very long. For starters, you lack the standing to sue. I'm not an attorney, but I'm pretty sure you should have filed in your children's names, as next friend.
    • David Adams You don't need to be an attorney to opine on standing, but you do need to know more than you know. Check back then.
    • Richard Day Boy, I'm sure that's true.Choosing plaintiffs is a crucial part of structuring a constitutional case. The choice has to satisfy certain legal requirements. Specifically, one must identify individuals who have been damaged according to the evidence that would be presented at trial. When Bert Combs brought his suit against the state in Rose, he wanted plaintiffs that very clearly had a complaint, people who were being prejudiced - damaged, by the state’s failure to provide an efficient system of schools. He properly concluded that the students were the real plaintiffs - they were the individuals who were being injured by reason of an inadequate school system. Combs selected children who were being discriminated against and parents of those children who were willing to have their names used as parents of injured children. The defense did knock out a few because some of them didn't testify. Opposing counsel said that if they didn't testify that they had abandoned the suit. Combs focused on the students, telling the court “Well, here's a child, 8yrs old, Jimmy Duff. Has Jimmy Duff done anything? Has he stolen any money? Has he exercised any poor management? He is the plaintiff.” Combs found 19 children and sued in their names “all respectively by their parents as next friends.”

      Your choice to sue with the language “David Adams is a taxpayer and citizen of the Commonwealth of Kentucky and parent of two students in Jessamine County Schools” makes you the plaintiff, not your children and would seem to open the door to an easy rejection if the court is so inclined.
      about a minute ago · Like

      This from StateEdWatch:

      Common Core Faces Kentucky Legal Challenge, Questions About 'Rebranding'

      Kentucky has often been hailed as the exemplar of implementation of the Common Core State Standards, from its handling of new classroom practices to the way it's massaged the public perception of lower standardized test scores. But a couple of developments over the last week might give Bluegrass champions of the common core, and friends of the standards in general, some pause about the standards.
      The first potential kink is a relatively straightforward one: A political activist, David Adams, has filed a lawsuit challenging the legality of the common core in Kentucky. What's his argument? He essentially says that the Kentucky Legislature has failed to fulfill its obligation under the state constitution to ensure an "efficient system of common schools" and to make sure those schools are operated "without waste, duplication, mismanagement or political influence." The Kentucky state school board officially adopted the standards in June 2010. But because state officials and others announced that they would be adopting the standards before they were finalized, Adams told me, they not only jumped the gun, but also crossed the line into some form of mismanagement or malign political influence.
      Adams is president of Kentucky Citizens Judicial, a group whose mission is to challenge state government in court. I asked him how he would get around the fact that the Kentucky state board, not the legislature, is responsible for adopting standards. He responded that this doesn't negate state lawmakers' job overseeing K-12: "They're still responsible to see that this is done in an efficient manner."
      When I asked Kentucky education commissioner Terry Holliday about this suit at a meeting of the Council of Chief State School Officers in Richmond, Va., on Nov. 15, he was dismissive. He said that the Kentucky legislature has overseen how common core is working in the state very closely, and approved the correct regulations governing the standards.
      "My attorneys tell me it's very confusing," Holliday said of Adams' lawsuit. 
      Let's leave the lawsuit aside and talk about a different issue that's related to the common core. During a panel discussion about effectively communicating to the public and to schools about common core, Holliday bemoaned the meager state of his schools' budgets. Teachers in his state, for example, have gone five years without pay raises, Holliday said. When I subsequently asked him whether he thought schools' dire financial straits might negatively impact common core in Kentucky, he responded that he thought other aspects of public schools would be affected, but not the standards. But it seems fair to wonder if common-core implementation, which is such a major priority and challenge for many states, might be harmed by the sluggish economic and fiscal climate state and local officials are still dealing with.
      Common core, you probably won't be surprised to hear, dominated the CCSSO policy meeting last week. U.S. Secretary of Education Arne Duncan, when thinking about how the public at large is perceiving the standards, seemed to be of two minds.
      On the one hand, Duncan seemed to blame some of the negative reaction to the standards on a specific group of privileged parents, in remarks that have gotten a lot of attention from the press: "It's fascinating to me that some of the pushback is coming from white suburban moms who all of the sudden my child is not as brilliant as I thought they were and their school not as good ... that can be a punch in the gut."


Susan Weston said...

There appears to be a confusion between the celebration and the regulation. The 2010 edition of the Kentucky Core Academic Standards became official through 704 KAR 3:303. That process was only possible when the KCAS text could include the final Common Core text: KBE knew exactly what was being adopted, and the legislative panels that reviewed the regulation also knew exactly what was being adopted. Yes, I remember the big party in February 2010 when the three agencies agreed they knew enough about Common Core to decide it was the right direction for the state. But for legal purposes and especially for judicial ones, the real decision was based on the final document.

Anonymous said...

I don't have any problem with the standards. Its just the darn changing them every three or four years that is the biggest waste of time and money. For goodness sake, just pick something and stick with it so educators can dig in and start moving in a long term direction with students. Curriculum and assessment in this state has become a moving target the last two decades. If I was going to a doctor and had this many interventions and diagnosis, I would have found a new physician by this time.

Richard Innes said...

RE: Susan Weston’s comment

In the interest of properly sequencing the events

There is extensive documentation that the Kentucky Board of Education, the CPE and EPSB adopted the CCSS sight unseen in February 2010, well before the final version of the standards was released.

The February adoption was well reported at that time.

For example, KBE News Release 10-008 from February 10, 2010 says:

“The board gave final approval to revisions to 704 KAR 3:303, the state regulation that outlines the requirements for the Program of Studies for Grades Primary-12. The regulation has been modified to change the name of the document to Kentucky’s Core Academic Standards. The board’s action also replaces the mathematics and reading/language arts standards in the current Program of Studies with new Common Core Standards being developed in collaboration with other states in order to implement the changes required by 2009’s Senate Bill 1 (KRS 158.6453).”

(Online here: http://education.ky.gov/comm/news/Documents/R008kbe.pdf)

The news release makes it quite evident that adoption took place well before the final version of CCSS became available in early June 2010.

Later the same day, another KDE News Release, 10-009 (online here: http://education.ky.gov/comm/news/Documents/R009jointmeeting.pdf) reported:

“In joint meeting this evening, the chairs of the Kentucky Board of Education, the Council on Postsecondary Education and the Education Professional Standards Board signed a resolution directing their respective agencies to implement the Common Core State Standards in English/language arts and mathematics, formalizing Kentucky’s agreement to integrate the standards into the state’s public education system.

With this action, Kentucky becomes the first state to formally accept the standards.”
(end part 1)

Richard Innes said...

Continuing RE: Susan Weston’s comment

Main line media also reported on the adoption taking place in February of 2010.

For example, Education Week reported online on February 11, 2010 (one day after the adoption votes) that:

“With a unanimous vote this month, the Kentucky board of education approved the substitution of the common standards in mathematics and English/language arts for the state’s own standards in those two subjects.

Then, in a rare joint session, the panel met in Frankfort with the two boards that oversee teacher licensure and public higher education in the state and adopted a resolution directing the staffs of all three agencies to begin incorporating the standards into their work.”

(That EdWeek article is online here: http://www.edweek.org/ew/articles/2010/02/11/22kentucky_ep.h29.html?qs=Kentucky+adopts+Common+Core)

Other responsible news agencies continue to support the fact that the adoption occurred in February 2010.

For example, here is a Washington Post “The Answer Sheet Blog” entry where Chad Colby, director of Strategic Communications & Outreach for Achieve, says,

“Actually, in February 2010, Kentucky became the first to adopt the Common Core standards before the final version was publicly released.”

(Online here: http://www.washingtonpost.com/blogs/answer-sheet/wp/2013/02/13/former-education-commissioner-blasts-common-core-process/)

As a note, the KDE reported that the KBE did have another “final” vote on the incorporating regulation, 704, KAR 3:303 on June 9, 2010, a week after the Common Core State Standards final version was released (See KDE News Release 10-030, here: http://education.ky.gov/comm/news/Documents/R030kbe.pdf).

However, the regulatory process requires the KBE to take two votes on each regulation. So, under any condition, the initial vote on 704 KAR 3:303 occurred well before the final CCSS document was released.

I’ll let some of your teacher readers who have been struggling with the real meaning of Common Core comment on whether or not the KBE could really know “exactly what was being adopted” when they had only a week to read the final CCSS documentation before their final vote. That vote, in the end, was just a legal dotting of I’s and crossing of T’s for a firm commitment to adoption that had already been voted on back in February.

I wonder if the courts will find the curiosity of two “final” votes to adopt CCSS of interest. It certainly speaks to a degree of confusion, if not rush, at the very least.

Richard Day said...

Richard: I am interested in that sequence too. Thanks for your note on KDE’s final vote on June 9th 2010. I didn’t have that date.

I have a call into KDE legal to see if I’m reading the regulation correctly, but if I am, 704, KAR 3:303 had been most recently revised in 2006 (33 Ky.R. 137; eff. 8-7-06)– well before all of this. The next revision does not occur until February 4, 2011 (37 Ky.R. 1015; eff. 2-4-2011). Then there’s a final revision this year (40 Ky.R. 136; 809; eff. 11-1-2013) with the note “Section 2. Incorporation by Reference. (1) The "Kentucky Core Academic Standards”, September 2013, is incorporated by reference.”

Seems awfully late to me…but then, I am not accustomed to the flow of regulation writing and when things become official. That said, they certainly do not become official before a required final vote. If they did, no second vote would be necessary. So, I do not share your view that the first vote was legally determinative of anything. Symbolically however, it certainly said out loud where the state was headed.

Since I was I the room for the big meeting I don’t need secondary reporting to verify what went on but I don’t have an argument with any of it. The three agencies launched their CCSS effort. But they did not finalize them. Everybody was reviewing CCSS drafts: College- and Career Readiness Standards since Sept 2009, and the K-12 standards, not finalized until March 2010, were being circulated. Ed week correctly reported that agency staff were directed “to begin incorporating the standards into their work.” Again, not final.

I don’t see how David Adams overcomes the testimony (if it gets that far) of Kentucky folks who were reviewing drafts all along.

Over on Susan Weston’s Facebook page yesterday is a small sample: Susan Perkins Weston: "…Kentucky put its very best people on making sure CCSS came into existence. Vicki Phillips is ours. Gene Wilhoit is ours. Harry Moberly and Kelly Flood, who shepherded our 2009 legislation to its final form, knew full well that CCSS was on the way, and they're ours, too. Ken Winters, who chaired the legislative oversight committee, used to call CCSSO and NGA regularly to ask why the standards weren't done yet. We chose, and we danced as we did it. Carol Edelen: and they posted every draft asking for comments all along the way. I had a say...and I did share!"

I’m not sure what Adams is going to do when the state produces a few dozen of these folks to testify.

Also, I believe Kentucky had been moving in this direction since the mid-80s. I outline what was going on here: http://kjectl.eku.edu/current-journal

I don’t think the court (and certainly not Judge Shepherd, should he draw the case) will find the process to be particularly confusing. I do agree with you that the final CCSS adoption vote was very easy for Board members. They knew what they were adopting, if not down to the last letter, they definitely knew the great majority of the document. They already supported it in concept. Most were like Ken Winters and wanted to get it moving.

If the courts begin to find confusion, or rushing, unconstitutional we’re all in trouble. : )

Richard Day said...

Sounds like you have a complaint against a KDE News Release. Remind me, do KDE press releases have the effect of law?