Monday, January 06, 2014

Is the Suit Challenging Common Core Adoption in Kentucky on its Deathbed?

In November, after I opined that David Adams' case against Kentucky's adoption of Common Core was doomed from the start, he asked me to seriously consider following the case. I suspect he wanted to teach me a lesson or two in constitutional law. Here's my take on the case so far:

The Death of Don Quixote
The frivolous lawsuit brought by Don Quixote de Nicholasville (otherwise known as TEA Party activist David Adams) challenging Kentucky’s adoption of Common Core State Standards seems close to being over already, but its hard to know these things with certainty. The court will try its best to allow citizens to redress grievances, real or otherwise.

But the final order dismissing the suit with prejudice, is prepared in the case file. The post-it note showing the judge where to sign is in place. It only awaits the signature of Franklin County Circuit Court Judge Phillip Shepherd. Shepherd’s signature would end Adams' futile, poorly conceived, and inexpertly executed attempt to politicize common core adoption in a Kentucky court room. I can't imagine this case will go on much longer without some new approach. Actual evidence from Adams is needed - stat.

According to official documents in the case file, in Adams v Commonwealth (13 CI 01316) plaintiff Adams attempted to simply declare that the adoption of common core was de facto proof that the system of schools in the state is inefficient. In support of his argument Adams provided no evidence. Rather, embracing his inner 14-year-old, he impudently defended his lack of evidence with overstated political commentary indicative of nothing more than his own opinions.

For example, after asserting that violations of the constitution have occurred and "are the vilest," Adams disrespects the judge and the process by writing, "which fact should not need explanation to otherwise educated people in the 21st century." So what is this violation of the constitution? According to Adams, it is the adoption of Common Core State Standards. Period. 

But Adams' launches a conspiracy theory meant to influence the judge. No evidence mind you, but according to Adams, everybody's lying. He writes, 
Defendants claim Senate Bill 1 from 2009 authorized the acceptance of the Common Core. They cannot prove this because it is not true. If Defendants' acceptance of the Common Core standards and all the baggage that goes with them involved no controversy, why would they feel the need to lie about their genesis and otherwise choose the decidedly sketchy KRS Chapter 13A administrative route to implement rather than appropriate legislation? Defendants attempt as subterfuge so early in this case is telling.
So early? Is he kidding? This thing's got to be about over. And since when did public agencies promulgating regulations as directed by legislation become sketchy?

On November 13, 2013 Adams filed his complaint in Franklin County Circuit Court arguing that the state's adoption of standards before they were finalized constituted an unconstitutional mismanagement of the schools. He did nothing to establish his standing before the court, and he provided no evidence for how the common core harmed him. "Signing away state sovereignty and local control of schools to the extent Defendants have done or allowed to have been done cannot be countenanced in a constitutional Republic," Adams argues. He further argues that the Rose case necessitated "constant vigilance," suggesting that the court ought to oversee the other two branches of government. As if...

Responding for Governor Beshear, Senate President Robert Stivers, KBE Chair Roger Marcum, CPE’s Robert King and EPSB’s Cassandra Webb, attorney David Wickersham responded that Adams lacked standing, that his complaint failed to state a claim upon which relief can be granted, and that the case must therefore be dismissed with prejudice (which means the case will be over forever). Granted, this is typical legal wrangling at the start of a case, which judges often ignore, but it's hard to conceive the basis on which this case might proceed.

Wickersham argued that Adams’ complaint does not allege any facts, or identify individuals who have been or will be injured by the adoption of common core. Adams did not tell the court the nature of any injury, or how the alleged injury occurred. Adams claimed standing as a “taxpayer” under KRS 418.040 but that statute only confers standing on a person where there is real or justiciable controversy involving specific rights of particular parties. The mere possibility of harm is insufficient to provide standing. To achieve standing the plaintiff must allege, and prove, that he would suffer some injury distinct from that of the general public. So how has Kentucky's adoption of CCSS harmed Adams? We don't know. But Adams seems to believe that his status as a taxpayer will overcome all other requirements.

Wickersham argued (correctly, but somewhat inaccurately, it seems) that Adams’ complaint does not directly challenge Senate Bill 1 (2009) which authorized the regulation surrounding Common Core State Standards. Rather, it challenged “statements made at a 2010 press conference” that common core standards would be adopted. While Adams’ approach is highly unlikely to succeed since it fails to address the legislative action taken in Senate Bill 1, still, it is a bit disingenuous to describe the 2010 join meeting of KBE, CPE and ESPB as a press conference. Each group, in turn, held an official meeting according to the open meetings act, took official action, and adjourned.

Attorney David Fleenor responding for Senate President Robert Stivers asked that the senator be excused from the suit since legislators enjoy qualified immunity (if not absolute immunity, see Kraus v Ky Senate and Eastland v US Servicemen's Fund) and that a court ruling upholding Adams' claims would violate Kentucky's Separation of Powers provisions (LRC v Brown). Unless Adams can show that Stivers acted in bad faith, or exceeded his authority, the granting of qualified immunity seems certain. Besides, legislative authority resides with the "entire, publicly elected membership" of the General Assembly, not just with the Senate President who lacks the power to administer or implement the law under attack. And if Stivers is excused as a defendant, there will be NO legislators before the court! How could the court possibly direct legislators to do anything when no members are even before the court? Fleenor also cited a case with the same plaintiff, in the same court, where the same judge ruled on the absolute immunity of the same elected official when Stivers was dismissed from another of Adams' suits against the state - this one over the Affordable Care Act in July (13-CI-00605).

After reading the case file, my first reaction was - Adams is not an attorney; or at least, not a very good one. He is challenging core curriculum under legislative mandate but it is not at all clear that he has a cause of action. The appropriate avenue for relief should be administrative, through the state board of education, but Adams knows that he would be soundly rejected there, so he's attempting to leverage legislative action through the court. But it is clear that the courts ought not micromanage the legislature. Further, the court must see this suit for what it is - a political act. Adams is the President of Kentucky Citizen's Judicial. Their motto is: "Restoring Freedom One Lawsuit at a Time." This feels like a one-man operation and I suspect he is also KCJ's custodian, and everything else as well. There is no reporting of KCJ in Guidestar, so the "group" is probably new. My best guess is that Adams' services have been purchased by some rich person to advance a political agenda.

I suppose this suit might persist for a little while with the Governor and State Board as defendants, but even that is becoming harder to imagine. I think I hear the death rattle.


Anonymous said...

Let's be honest here- Rand Paul didn't fire David Adams because he proved himself to be a tremendous asset; he dropped him from the campaign because the 'useful tool' was no longer useful.

Adam's is most likely just another venue for Koch money to manifest its governmental sabotage. He is carrying out a pogrom against any state agency regardless of merit or chance of success- immune to to minor concerns like facts or reality.

Richard Day said...

Tool? Sounds right.

But I have always credited Adams for his part in Rand Paul’s primary victory in Kentucky. He clearly rode (and to some degree drove) the TEA Party wave in Kentucky.

As I recall, Paul dumped Adams immediately after Adams put him on the Rachel Maddow show, where Paul famously indicated that had he been around at the time of the Civil Rights Act was enacted, he would have tried to amend the section that allowed for private discrimination. He then assured Maddow that he was personally opposed to discrimination and would never do it, but it was too late. He had already said he would allow for the governmentally sanctioned means of discrimination for others. Later he defended his Southern Avenger.

“There’s 10 different titles, you know, to the Civil Rights Act, and nine out of 10 deal with public institutions, and I’m absolutely in favor of. One deals with private institutions. And had I been around, I would have tried to modify that.” —Rand Paul on The Rachel Maddow Show

Paul quickly went on his Fox News/Right Wing redemption tour.

“It was a poor political decision [to go on The Rachel Maddow Show], probably won’t be happening anytime in the near future — seem to have unleashed some of the loony left on me.” —Rand Paul on “Laura Ingraham Show”

But Maddow has been eating Paul’s lunch ever since.

Recap here:

As a rabble-rouser Adams has value. He pounds away on this idea, and the next. He would ride TEA Party popularity down to zero I suspect. But it’s not clear that he is doing any of the original thinking. Given a position, he can pound on it, and seems to take pride in being “that guy” who will represent anything.

For example, Adams has known about CCSS for three years now. He was silent on CCSS until the RNC made it a part of its anti-Obama campaign last April. Then all of a sudden, it’s ObamaCore!

Maybe Adams is becoming the ObamaTool. Or is it, ObamaTroll?

What surprised me in this case was how he doesn’t seem to care if his arguments make sense or if his approach is sensitive to the law. He’s either unaware, or doesn’t care.

If I were David's funding source, I'd be asking some tough questions about his results.