An Analysis of the Libertas Common Core Lawsuit

gavel1Lawsuits should never be a first resort.

Unfortunately, all too often lawsuits are the only way policy makers listen. Whether it’s civil rights, healthcare, the environment, or education standards, lawsuits are a part of our national political system, turning to courts to address issues that we have been unable to resolve by political action.

Enter the Libertas Institute, a local libertarian leaning non-profit, which just last week filed a lawsuit challenging the process by which Common Core educational standards were adopted by the Utah State Board of Education (USBE) in 2010. Elsewhere, a lot has been said (sneered/teased/joked/ribbed/spit/spun/testified/vaunted/trumped/etc) about Libertas’ motives in filing the suit.

This post is not about the lawsuit’s purpose. Rather, for purposes of this post I accept Connor Boyack, President of Libertas, at face value when he says that he believes his non-profit “has identified numerous violations of the law in [a Libertas] investigation ongoing since January.” (Deseret News, My View: New Common Core lawsuit fights for local control, Monday August 4, 2014).  

The Libertas lawsuits aims to rectify violations in the adoption of Common Core.  This review (drafted with the extensive help of multiple UPH contributors) limits itself to an examination of the legal issues addressed in the Libertas suit and the possible ways the suit will affect the Common Core standards.

Brace yourself for some dry analysis…


Named Parties

The lawsuit is brought by a mix of plaintiffs, including current and former public school teachers, a former member of the Alpine School Board, parents of school aged children, and a member of a board of a charter school. Note that the teachers and the Alpine School Board member were teaching and on the board, respectively, in 2010 when the standards were passed by the USBE. The named defendant is the Utah State Board of Education.

Theory of the Case

Libertas’ claims are entirely statutory; there no constitutional claims here.

  1. First, the suit argues that Common Core standards are agency rules that must pass through the rule making process found in the Utah Administrative Rulemaking Act (UARA), the guide for administrative rules for state agencies (such as the Utah Department of Transportation or the Utah Tax Commission).  Because the standards were adopted without the formal rule making process, the lawsuit claims they amount to nothing more than unenforceable written statements.
  2.  Second, Libertas asserts that the standards were adopted without fulfilling the statutory requirement for consultation with “local school boards, school superintendents, teachers, employers, and parents[.]” On that basis, the standards are unenforceable.

If Libertas wins…

Assuming success of the Libertas lawsuit, it’s not immediately clear what would happen, except that the Common Core standards would be judicially declared “unenforceable.” Does that mean Utah would have no educational standards? Or, could it be that Utah still has educational standards, but individual schools, teachers, and perhaps students couldn’t be forced (by the USBE) to teach the standards? The lawsuit could have (and probably should have) been clearer on what relief Libertas is seeking, as well as what result they expect, and will likely have to clarify at some point.  It is likely that the court that reviews this case — assuming the case makes it to judgment — will want clarification. Courts don’t typically want to give a judgement without understanding what the effect of that judgement will be. An amorphous order that Utah’s educational standards are unenforceable seems to invite further litigation, a result most judges want to avoid.

Procedural Issues

  1. Does the lawsuit name the correct defendants?  Any suit against a the federal or state government faces issues of sovereign immunity. Sovereign immunity is a legal doctrine that provides protection to government against lawsuits (and Wikipedia has a decent overview, if you’re really curious).   The doctrine of sovereign immunity requires that, when suing a state or a state agency you name a principal officer and sue them in their official capacity, rather than just the “State of Utah,” or the “Utah State Board of Education.”  Hence, the lawsuit brought by same-sex couples seeking to overturn Amendment 3 was captioned “Kitchen v. Herbert,” not “Kitchen v. Utah.” The Libertas lawsuit names “The Utah State Board of Education” as the defendant, not the superintendent or members of the USBE in their official capacities.  It’s possible that the Libertas plaintiffs may have named the wrong defendant and will have to amend their complaint as they proceed.  To be clear, this is not an obstacle at this stage; at most it’s a minor detail, a common and understandable error.
  2. Did the Libertas plaintiffs fail to exhaust administrative remedies?  The Libertas’ plaintiffs’ first three claims center around the argument that the Common Core standards were adopted without compliance with the UARA.  However, the UARA itself provides the conditions on which claims of noncompliance can be asserted and states that “a person seeking judicial review under this section shall exhaust that person’s administrative remedies by complying with the requirements of Section 63G-3-601 before filing the complaint.”  Utah Code Ann 63G-3-602(b)(1).  This means that prior to initiating a lawsuit in district court a person challenging a rule under the UARA must first petition the agency that adopted the rule to allow them to address the matter.  Only then, if they still have been denied relief, can they sue. The UARA does provide for three rare exceptions to the exhaustion requirement:
    1. less than 6 months have passed since the rule became effective;
    2. the statute authorizing rule making authority specifically exempts the rule from the exhaustion requirement; or
    3. the exhaustion of administrative remedies would result in irreparable harm to the plaintiffs.Utah Code Ann. 63G-3-602(2)(b)

By the Libertas plaintiffs’ own words, the Common Core standards were adopted in 2010, putting them outside the six month window. Furthermore, Libertas has not (and cannot) point to any statute specifically exempting the adoption of standards from administrative exhaustion because there is no statutory provision that even expressly designates educational standards as “rules” to which the UARA would apply.   The irreparable harm exception is for rare circumstances, and the Libertas plaintiffs have not alleged they would suffer from irreparable harm, or even sought the expedited relief (via a temporary restraining order or preliminary injunction) that nearly always associate with claims of irreparable harm.  Last, the UARA specifically requires any complaint brought against a rule for failure to comply with the UARA contain an allegation stating that the party has either exhausted administrative remedies or is exempt from exhausting administrative remedies

The Libertas lawsuit does not contain such an allegation of irreparable harm. If the Libertas plaintiffs failed to exhaust their administrative remedies as required by statute — and I want to emphasize that I don’t know whether they did or not, only that their lawsuit gives no indication whether they did — the lawsuit would likely be dismissed without prejudice and they would be required to seek relief via a petition for agency action from the USBE.

  1. Is there a cause of action for the non-UARA claim?  The Libertas lawsuit does assert a non-UARA claim (to which the exhaustion requirement would not apply) — that the Common Core standards were adopted without adequate consultation from various stakeholders, as is required by Utah Code Ann. 53A-1-402.6. However, there doesn’t appear to be a statutory provision authorizing a suit to enforce this provision.  Utah courts are reluctant to create a private right of action in the absence of clear statutory authority.  See, e.g., Miller v. Weaver, 66 P.2d 592, 599 (Utah 2003) (“In the absence of language expressly granting a private right of action in the statute itself, the courts of this state are reluctant to imply a private right of action based on state law.“).

This is especially the case when there is an administrative process (as the Libertas plaintiffs claim) through which the provision could be enforced.  Id.  All this to say, there is a good chance that the Libertas plaintiffs’ non-UARA claim could be dismissed for lack of a private right of action — meaning simply that the court cannot conclude the legislature intended for the provision to be judicially enforced.

  1. Has the statute of limitations run on the Libertas’ plaintiffs UARA claims?  The most significant procedural hurdle facing the Libertas plaintiffs’ lawsuit may be the statute of limitations.  The UARA provides that any action brought to challenge a rule for noncompliance with the UARA, must be brought within two years of when the rule was adopted.  Utah Code Ann. 63G-3-603.

By their own admissions, the Libertas plaintiffs put Common Core adoption in August of 2010, nearly four years ago.  Assuming the statute of limitations for UARA claims applies to the Libertas plaintiffs’ challenges based on the UARA, it appears the lawsuit is untimely and should be dismissed.  I’ll note that I am assuming there hasn’t been a “re-adoption” of the Common Core or changes to the adoption of the Common Core within the last two years.  If there has, it’s possible the statute of limitations as been restarted, making the lawsuit timely — to those changes, though likely not as to the entire Common Core.

In sum, the Libertas lawsuit faces significant procedural hurdles relating to exhaustion of administrative remedies and the statute of limitation as to its UARA claims, and a significant issue regarding the lack of a statutory cause of action for its non-UARA claim.

Substantive Issues

Assuming the Libertas lawsuit makes it past the procedural hurdles, it must convince a court,  in the absence of clear statutory evidence, that the legislature intended educational standards to become a part of the Utah Administrative Code. Let’s look at the UARA definition of a “rule” and determine if it encompasses curriculum standards. The UARA defines a rule as follows:

Utah Code Ann. 63G-3-102

. . .

(16) (a)  “Rule” means an agency’s written statement that:

(i)  is explicitly or implicitly required by state or federal statute or other applicable law;

(ii)  implements or interprets a state or federal legal mandate; and

(iii)  applies to a class of persons or another agency.

(b)  “Rule” includes the amendment or repeal of an existing rule.

(c)  “Rule” does not mean:

(i)  orders;

(ii)  an agency’s written statement that applies only to internal management and that does not restrict the legal rights of a public class of persons or another agency;

(iii)  the governor’s executive orders or proclamations;

(iv)  opinions issued by the attorney general’s office;

(v)  declaratory rulings issued by the agency according to Section 63G-4-503 except as required by Section 63G-3-201;

(vi)  rulings by an agency in adjudicative proceedings, except as required by Subsection 63G-3-201(6); or

(vii)  an agency written statement that is in violation of any state or federal law.

Since the adoption of curriculum standards implements a state law (see Utah Code Ann 53A-1-402 and 402.6 below) and applies to a class of person(s), it would seem to fit within the UARA’s broad definition of a “rule,” unless there is an indication elsewhere that the legislature intended otherwise. The authority to develop educational standards is granted generally to the USBE by the Utah Constitution, which creates the USBE and gives it “general supervision and control” over the state’s public education system.  The legislature has specifically tasked the USBE with the creation of standards:

Utah Code Ann. 53A-1-402

(1) The State Board of Education shall establish rules and minimum standards for the public schools that are consistent with this title, including rules and minimum standards governing the following:

     (a) (i) the qualification and certification of educators and ancillary personnel who provide direct student services;

          (ii) required school administrative and supervisory services; and

          (iii) the evaluation of instructional personnel;

     (b) (i) access to programs;

          (ii) attendance;

          (iii) competency levels;

          (iv) graduation requirements; and

          (v) discipline and control;

     (c) (i) school accreditation;

          (ii) the academic year;

          (iii) alternative and pilot programs;

          (iv) curriculum and instruction requirements;

          (v) school libraries; and

          (vi) services to:

               (A) persons with a disability as defined by and covered under:

                    (I) the Americans with Disabilities Act of 1990, 42 U.S.C. 12102;

                    (II) the Rehabilitation Act of 1973, 29 U.S.C. 705(20)(A); and

                    (III) the Individuals with Disabilities Education Act, 20 U.S.C. 1401(3); and

               (B) other special groups;

     (d) (i) state reimbursed bus routes;

          (ii) bus safety and operational requirements; and

          (iii) other transportation needs; and

     (e) (i) school productivity and cost effectiveness measures;

          (ii) federal programs;

          (iii) school budget formats; and

          (iv) financial, statistical, and student accounting requirements.

In Section 402, the statutory language refers to both “rules” and “standards.”  The use of both terms here suggests that there is a difference between rules and standards — after all, if all standards are rules, why mention standards at all? Utah Code Ann. 53A-1-402.6 is the section dealing specifically with core curriculum standards.  It does not refer to rules at all, only to the establishment of “minimum standards”:

Utah Code Ann. 53A-1-402.6.   Core curriculum standards.

(1) In establishing minimum standards related to curriculum and instruction requirements under Section 53A-1-402, the State Board of Education shall, in consultation with local school boards, school superintendents, teachers, employers, and parents implement core curriculum standards which will enable students to, among other objectives:

     (a) communicate effectively, both verbally and through written communication;

     (b) apply mathematics; and

     (c) access, analyze, and apply information.

The fact that Section 402.6 does not mention the adoption of rules is important, because in other sections in which the legislature intended the USBE to adopt rules the requirement is specific:

53A-1-402.5.   State board rules establishing basic ethical conduct standards — Local school board policies.

(1) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the State Board of Education shall make rules that establish basic ethical conduct standards for public education employees who provide education-related services outside of their regular employment to their current or prospective public school students.

(2) The rules shall provide that a local school board may adopt policies implementing the standards and addressing circumstances present in the district

53A-1-1113.   Rules.

The State Board of Education shall make rules, as necessary, to implement a school grading system in accordance with this part.

Yes, there is ambiguity on the substantive issue.  The adoption of core curriculum standards would seem to fall with the UARA’s broad definition of a rule (to which the UARA would apply). However, the text of the statute governing the USBE suggests that the adoption of was not intended to be governed by the UARA:

  • Title 53A differentiates between rules and standards,
  • expressly designates situations in which rules are to be adopted, and
  • does not mention the adoption of rules at all in the section most directly dealing with the adoption of core curriculum standards.

Finally, it’s worth noting that the USBE has been adopting educational standards for decades.  And yet, never have the standards been subject to UARA rule making procedures nor been codified in the Utah Administrative Code.  While past practice isn’t a basis for perpetuating an incorrect interpretation of a statute, it can, in the minds of some judges, say something about legislative intent — i.e., the legislature presumably knew that the USBE was adopting standards without rule making procedures and declined to correct it. Given that the Libertas plaintiffs bear the burden of proof to convince a court that the core curriculum standards are rules to which the UARA apply, that there is a defensible statutory argument that they are not rules and that classifying them as rules would upend decades of consistent past practice, my guess is that a reviewing court would determine they are not rules. The Libertas plaintiffs’ challenge would fail on its merits.

Practical Considerations

It’s worth noting just a couple of practical considerations.

  1. First, if the Libertas plaintiff prevail in this case, it will fully bureaucratize education in Utah — unless the legislature acts to overturn the decision by statute.  That’s more than a little ironic. And perhaps that is what Libertas Institute’s goal is with respect to this lawsuit: shake up the system, put the status of the Common Core is serious doubt, and force the legislature to confront the issue directly.
  2. Second, I suspect that, if the Libertas plaintiffs were to prevail, it would make Utah entirely unique.  Is there another state in the country with educational standards as part of their administrative code and subject to all the regulation that entails?

Can you imagine a formal petition for agency action about Columbus Day, subsequently appealed to the Utah Court of Appeals?  Neither can I, but that is where making educational curriculum regulatory law can take you.


 

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