Dear Governor Herbert...

Another Guest Post -- Christel is a much better writer than me so I will be posting a lot of her writings as we are working together to fight this.

April 5, 2012

Dear Governor Herbert and Christine Kearl,

Thank you for having Alisa XXXX, Renee XXXXX, Kevin XXXXX and me, Heber City citizens concerned about Common Core, to your office  Wednesday.

I contacted the legal department of the U.S.O.E. yesterday and found out that they have not conducted any legal analysis of Utah's entanglement in the Common Core Initiative and SBAC membership.  Will you please request that they do so immediately?
Lawyer Carol Lear told me she did not even have a copy of the document "Cooperative Agreement Between U.S.Department of Education and the Smarter Balanced Assessment Consortium."  I sent her the PDF and the link:http://www2.ed.gov/programs/racetothetop-assessment/sbac-cooperative-agreement.pdf

It is clear from that document and others that the federal government has trampled G.E.P.A. laws as well as the 9th and 10th Amendments to the Constitution, by asserting authority, and without authority of law but via grant money and the dictates of  Arne Duncan, to set terms upon Utah and the SBAC, including requiring ongoing assessment status reporting, telephone conferencing, responses to requests from the U.S. DOE for information, written updates, and mandating that "across consortia" the testing methods and data collected from the tests will be coordinated.  This triangulates information and creates centralized data collection not only of math and reading scores, but of personally identifiable and unique student information.  I am sure the citizens of Utah would not vote for that.  It slipped under the radar, like so many other aspects of the Common Core initiative, because it was never brought under public or legislative scrutiny.  Superintendent Shumway, the State School Board, and the Governor, signed the documents that have bound us to this loss of sovereignty.  No one else knew it was happening.

I respectfully request that your legal team contact the U.S.O.E.'s legal team as soon as possible to discuss the educational sovereignty of our state and the financial obligations under which we will be burdened by remaining legally bound under CC and SBAC.   Have them read the Race to the Top Applications one and two; have them read the Cooperative Agreement between U.S. DOE and SBAC; have them read the WestEd Letter, which is in the binder of information we left with you, as well as being in the possession of Carol Lear.  That will be a good enough start to make it clear that these are not the assertions of fearful people but facts that actually bind Utah to sobering Federal controls.

I have been counseling with Jim Stergios of the Pioneer Institute, a non-federally funded Massachusetts think tank.  I asked him this: if Utah were to pull out of Common Core and the SBAC, would the consortium have to return any of Utah's portion of the consortium's assessment development money and other rewards, incentives and waivers to the Federal Government?

Stergios called this question is a good one, because it shows how confused and confusing the federal role has gotten on Race to the Top, the money, and commitments.  He said that if states have done what they promised they would do with the Race to the Top money received, then once it is spent there is no hook for the federal government to enforce reimbursement to the feds. If the money flowed to those purposes, the state cannot be forced to return money for a change in policy on standards.  The problem of irreversibility comes with adoption of the tests and/or acceptance of a federal waiver from NCLB.

He said that states that have not adopted the CCSS have come under much heightened scrutiny by the feds and also pressure from some foundations.  But he told me, too, that once the national tests are adopted, which happens in 2014, it will become incredibly hard to pull back out.  Also, if Utah or any state accepts an NCLB waiver, which comes with the requirement that states adopt national standards and tests, then pulling out will lead potentially to federal oversight of a vast number of districts in one’s state.

Please have your lawyers look into these questions of irreversibility.

On another topic, I wanted to answer the Governor's question about the letter he had received from Arne Duncan.  It is correct that the letter sounds innocuous.  However, a few concerns I have with the letter include these:  1) The Common Core Initiative has taken great pains to repeatedly claim that this movement has nothing to do with federal controls, is not a federal initiative, and is state-led.  This they claim despite the fact that they funded the whole movement, from funding the NGA and CCSSO, the groups who "started" it, funding the developer of the common standards and curriculum itself, Achieve,Inc., and funding the grants associated with the movement, notably ARRA-based Race To The Top.  Even the letter itself uses the words "not a federal initiative."  Arne Duncan chooses his words very deliberately.  Because he paid the NGO and CCSSO to do what he was not legally authorized to do, he can truthfully say the feds did not initiate this movement.  But they funded and directed it from the beginning and continue to do so. There is a difference between the phrase "federal initiative" and the phrase "federal control".  That is a very significant choice of words.  2) Secondly, the fact that Arne Duncan, not a group of state governors, clarifies policy, sends letters like this to you and to Superintendent Shumway, and sets the terms of cooperative agreements, reveals the fact that the U.S. Department of Education, not the NGA or CCSSO, is in control of and behind this initiative.  Otherwise, state leaders would be directing their questions about Common Core, and getting answers about Common Core, from the NGA and the CCSSO, the "state-led" leaders of this movement.

It would all make more sense if we had ever received educational funding for our memberships in these movements.  It would all make sense if we received anything at all from memberships in these movements; but all academic values in Common Core are in the public domain and we did not benefit academically from joining this movement.
I will attach much of what we gave you in the binder and the jumpdrive here, so that you can easily forward the evidence to your legal team as soon as possible. Thank you.

We look forward to meeting with you, Superintendent Shumway and your legal team together again next month. 

Sincerely,

Christel XXXXXXX

Heber City, Utah