Highlights from the Attorney General’s Common Core Report


Highlights from the Attorney General's Common Core ReportLet’s dispel with the fear-mongering surrounding education and the Common Core standards. Here are the highlights from the report, as well a cautionary note for where our focus should lie.

On Tuesday afternoon, Utah Attorney General Sean Reyes released a report on legal questions surrounding Common Core. Before he had even completed the press conference, activists had already started using his comments as fodder to support their preconceived positions.

Haters gonna hate. And activists are gonna activate.

None of them had read the report, let alone considered that the report was a legal analysis, not a political one, designed to provide information to the policy makers. After all, if there’s one thing that Reyes has shown during his tenure as Utah’s attorney general, it’s that he believes that the AG should not use excessive discretion in imposing his opinion on the law or his opinion of what the law is.  He followed that legally prudent philosophy in the appeal of Kitchen v. Herbert and  by allowing front line attorneys to provide analysis (as requested by the Governor) he’s followed it now with his office’s analysis of Common Core’s legality.

The report’s out. It’s online (and embedded below), it’s very easy to read, whether you’re a lawyer or not. Here are a few highlights (and the full report is below):

Main Questions Asked About Common Core

First, let’s understanding what was asked of the Attorney General. He was not asked to address whether the Common Core standards are good for Utah students, an appropriate way to improve education, or what might happen if we use the Common Core standards.  On the contrary, he addressed whether the way Common Core standards were adopted was legal, whether Utah had given up control and ability to change the standards, or had been paid to adopt Common Core standards.

  • Does the Utah State Board of Education (USBE) have the authority to set academic standards?
  • Was the process the USBE used to adopt those standards in any way illegal? 
  • Do local school boards still have control over their curriculum? Does anyone have indirect control over curriculum?
  • Does the state have any federal entanglements with regards to standards or curriculum?
  • Did Utah receive money to adopt Common Core?
  • Can Utah change its academic standards, including Common Core standards?

Highlights from the Common Core Report

State Board of Ed LogoUSBE Controls and has Authority Over Utah Education Standards 

According to the report, authority over public education standards lies with USBE (UCA §53A-1-402(1)(c)(iv). Common Core standards were adopted by USBE in August of 2010 after a period of public comment and review. It wasn’t until a year later that the first ESEA waiver was announced by the Department of Education in 2011, requiring that, if states wanted the waiver, they had to “demonstrate rigor in standards, assessments, and teacher evaluation practices.”

It just so turned out that Utah had already adopted standards that complied with the waiver. Utah received the waiver in 2012, not changing anything in its standards to receive the waiver. Further, Utah is not required to implement the Common Core standards.

Alternately, Utah had–and still has–the option of repealing the standards and accepting “standards approved by Utah’s higher education institutions” or, in other words, the Board of Regents. Regarding this potential abrogation of USBE authority to the Board of Regents, the AG deemed that the USBE would still have to adopt the standards, an option allowed under Utah law.

Further, local school boards retain control over curriculum. §53A-l-402.6 (5)  I think this point is important to the discussion and want to reiterate it: Common core is not about the funky looking homework your third grader brings home. It’s about standards. 

Every time you post a picture on Facebook from your son’s odd-looking math homework–and yes, it is occasionally odd-looking–recognize that it isn’t Common Core standards that’s causing you grief: it’s the curriculum that your local school district or teacher has decided to use for pedagogical reasons.

If you don’t like that homework, the group to approach is not the Governor, Attorney General, the Utah Legislature or even the often dysfunctional USBE: it’s your local school board and your child’s teacher. The curriculum is designed with the standards in mind, but curriculum, by definition (“the planned interaction of pupils with instructional content, materials, resources, and processes for evaluating the attainment of educational objectives), is distinctly different from standards.

But I digress. The point is this:

The Utah Board of Education retains control and authority over standards and adopted Common Core standards in 2010, prior to the ESEA waiver offer (2012), and your local school board  (and teachers) retains control of curriculum (which, again, is not the same thing as standards).

The Common Core Adoption Process was Appropriate

In August of this year the Libertas Institute  instigated a law suit alleging that the process of Common Core adoption was flawed (I’ve analyzed that lawsuit previously). The Attorney General’s report does not agree with the Libertas assertion that standards are the equivalent of administrative rules, though the report acknowledges that there is not a definition of standards in statute.

According to the AG’s report, the first problem with the lawsuit is that the piece of statutory code that Libertas relies upon– §53A-l-402.6( 1 )–was not in effect in 2010 when Common Core was adopted. It was, according to the report, “added/amended in 2014, by Chapter 352, 2014 General Session.”

Even so, extensive public comment occurred prior to Common Core standards adoption by the USBE:

Nevertheless, during 2009 and 2010, significant outreach occurred with Local Education Agencies (LEAs), the Utah Legislature’s Interim Education Committee and the public. Public meetings discussing the proposed Core Standards were held with superintendents, charter school directors, curriculum directors, legislators, PT A members, higher education representatives, business leaders, and other members of the public. Furthermore, between May 2009 and August 2010, State Board of Education meeting minutes reflect that consideration of the Common Core standards was an agenda item or public comment topic in 10 meetings.

If the Libertas lawsuit rests on whether or not public comment occurred (which rest upon whether standards are “rules,” which in turn rests upon whether the statute was in effect at the time), then Libertas has an uphill battle to fight.

Even if they win, Libertas’ lawsuit would have an effect that probably violates the core beliefs of its founders and supporters in that it would bureaucratize education, requiring a more byzantine education apparatus. Ironic, eh?

Federal Entanglements in Standards? Debatable.

This is, in my mind, the most interesting question here, and I’ll explain why.

First, it gets to the crux of the fears of most who oppose Common Core standards. If the standards had been called Utah Common Standards, and then every state had gone and adopted them afterwards, keeping the name, I doubt there would be any controversy. (Well, probably there still would be. Because, you know, this is Utah). But because the Common Core standards have been picked up by a lot of states and engaged by the US Department of Education, we immediately begin to worry that the feds are telling us how to teach our kids.

Activist know this, and they know it appeals to our fears. They take advantage, and before you know it, we’re all finding references to Common Core on our kids’ homework, rustling up boogeymen in the form of the oppressive hand of the feds, and fearfully revolting.

The interesting part is that there really is a point to the fear. A healthy distrust of distant government bureaucrats is a good idea. The problem arises with demagoguery by groups–on both sides (or all sides? Is there more than two, here?)–with more of an interest in protecting turf, raising money, or rallying support than in improving educational outcomes. We fear that the Department of Education is levying money to induce education bureaucrats to take on standards developed without Utah’s say-so, and we fear that that entanglement will tread on Utah’s sovereign right to chart its own course in education.

Which brings me to the AG’s report.

The report looks at No Child Left Behind’s (NCLB) statutory language and finds that the requirements of the ESEA waiver may not be permitted. “These ESEA waiver principles or conditions are not part ofNCLB’s express statutory terms. As a result, a plausible argument exists that ESEA waiver conditions are USDOE requirements and are not authorized by Congress in NCLB.” Further, most of Utah’s Title I schools (schools with higher poverty) don’t comply with the requirements of NCLB’s yearly progress requirements which puts Utah in a position of facing three “severe changes”: 1) transporting students to nearby compliant schools; 2) replacing teachers and principals; and 3) significantly restructuring under performing schools

Or obtaining the ESEA waiver.

Contrary to what anyone will tell you, though, at no point will Utah sacrifice the $29M that the waiver grants. That’s just hogwash. And the AG report agrees. This money was never in jeopardy.

Utah’s NCLB noncompliance never jeopardized its Title I funds. Rather, Utah’s NCLB noncompliance would impact its flexibility in using the Title I funds. NCLB noncompliance requires that a portion of these funds be set aside for specified statutory purposes such as: 1) transportation costs; 2) after school tutoring; and teacher training. The ESEA waiver preserved LEA’s flexibility in their Title I funding use.

This coercion–the AG’s term, not mine–along with the potential to adopt the Board of Regent’s standards, is why it is debatable whether there is federal entanglement.

However, in sum, the report notes the timeline: Common Core standards were adopted in 2010, long before the waiver was given in 2012.

Photo by: Anna C. Brandao

Read the full report below. Let’s dispel with the fear-mongering surrounding this education and Common Core. Address problems with the standards, demand higher standards, and help your teachers and school districts come up with better curriculum. Raging against the federal government does not–at least in this situation–make your student more successful.

Yes, we should be cautious and aware of federal intervention in local education. But we should also be cautious and wary of those who are too quick to point to a federal boogeyman without sharing a full review of the facts.

Common Core Report – Utah Attorney General’s Office

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