Phillip Hamburger, law professor at Columbia Law School, gave a moving speech at Hillsdale College about the Constitution, also published in Imprimis this year. It laid out more clearly than I’d seen it before, exactly how the U.S. has strayed from our Constitution, and how it’s endangering us. His speech was titled, “The History and Danger of Administrative Law”.
Professor Hamburger made no allusion to education reforms, yet he wonderfully, as a bonus, happened to explain the foundational problem of the Common Core Initiative: that the governance system of Common Core is unrepresentative, unconstitutional and dangerous. Here’s how.
Hamburger explained that administrative law revives something that the Constitution barred: prerogative, or absolute power. He wrote: “Administrative law is commonly defended as a new sort of power, a product of the 19th and the 20th centuries that developed to deal with the problems of modern society in all its complexity… What I will suggest, in contrast, is that administrative power is actually very old.”
Old is right. Throughout history, countless generations suffered because others have wielded power over their lives. The whole purpose of the suffering and sacrifices of American pilgrims and pioneers was to escape unbalanced, top-down, often cruel, power. The success and freedom of the USA stemmed from the Constitution’s restraining of human power over other humans, and its strict limitation of its own government, and its checking and spreading of power, in order to avoid the cycle of oppression that the founders fled. The Constitution gives no lawmaking power to anyone but Congress.
Hamburger said, “Put simply, administrative acts are binding or constraining edicts that come, not through law, but through other
mechanisms or pathways…In a way we can think of administrative law as a form of off-road driving… For those in the driver’s seat, this can be quite exhilarating. For the rest of us, it’s a little unnerving.“
Reading this, I thought about Secretary of Education Arne Duncan, who drove off-road when he made regulations and policy changes to what Congress had long ago created in the privacy-protecting federal FERPA laws, so that he could meet his education data mining goals, which included (as outlined in his cooperative agreements* with state testing consortia) the sharing of “student-level data” –subject to law. Duncan had to alter that law. He shredded the previously protective FERPA when he made those regulatory changes. The Electronic Privacy Information Center sued him for it. But Duncan got away with it. Case dismissed.
I also thought of Duncan’s waving of money in front of cash-strapped states, tempting/coercing states into adopting Common standards and assessments and database systems in exchange for money. Off-road again. No basis in Constitutionality, just in cash.
I also thought about the little unauthorized onto-the-road drive taken by a little private club with a misleading name, the National Governors’ Association (NGA) which acts as if it were a legitimate voice for the people, as if it were Congress. NGA created, promoted and copyrighted these national standards, (the Common Core) as well as partnering with CCSSO in making national data collection standards (CEDS). The CCSSO and NGA hold no representational authority over education. It’s a giant bluff, and would almost be laughable, but it’s not funny, because it damages America.
I also thought about the blurring of lines of authority and power that happen with the creation of public-private-partnerships. When NGA and its sister-club, the superintendents’ club, CCSSO, partnered with the federal government and with Bill Gates to create education policy, Common Core bypassed Congress in two ways: by federal overreach plus corporate overreach –into what ought to be the states’ voters’ decision making arena.
Here’s a screenshot, evidence that the federal government has partnered with the private club that copyrighted Common Core and created Common Data Standards:
Remember our Constitution. It says that ALL legislative powers shall be vested in a Congress. Congress is supposed to make the laws. The Department of Education isn’t Congress. Neither is the National Governors’ Association, and neither is Bill Gates. Their assumption of unauthorized power over education policy, rather than having voters, via their Congressional representatives, to determine how education goes, is a clear corruption.
So what about corruption? Who cares?
Here’s why we must care. Hamburger writes that administrative law is “essentially a reemergence of the absolute power practiced by pre-modern kings. Rather than a modern necessity, it is a latterday version of a recurring threat—a threat inherent in human nature and in the temptations of power.”
He reminds us: “Early Americans were very familiar with absolute power. They feared this extra-legal, supra-legal, and consolidated
power because they knew from English history that such power could
evade the law and override all legal rights… Americans established the Constitution to be the source of all government power and to bar any absolute power. Nonetheless, absolute power has come back to life.”
He goes on: “ over the past 120 years, Americans have reestablished the very sort of power that the Constitution most centrally forbade. Administrative law… binds Americans not through law but through other mechanisms—not through statutes but through regulations—and not through the decisions of courts but through other adjudications. It… requires judges to put aside their independent
judgment and defer to administrative power as if it were above the
law—which our judges do far more systematically than even the worst
of 17th century English judges. And it is consolidated in that it combines the three powers of government—legislative, executive, and judicial—in administrative agencies.”
He concludes: “In sum, the conventional understanding of administrative law is utterly mistaken. It is wrong on the history and
oblivious to the danger. That danger is absolutism: extra-legal, supra-legal, and consolidated power. And the danger matters because administrative power revives this absolutism. The Constitution carefully barred this threat, but constitutional doctrine has
since legitimized this dangerous sort of power. It therefore is necessary to go back to basics… We should demand rule through law and rule under law. Even more fundamentally, we need to reclaim the vocabulary of law: Rather than speak of administrative law, we should speak of administrative power—indeed, of absolute power...”
Read the rest here.
Thank you so much, Professor Hamburger.
*Today, I noticed that the Cooperative Agreement between the Department of Education and Smarter Balanced Assessment Consortia link says “webpage not available.” But I had typed it into another post, not in full but at length, if you are interested, here.
The Governor’s new budget plan is making news this week, with most of the tax surplus money planned for Utah “education.” That’s the governor’s pipeline-based definition of education, not education as most of us would define it. His “education funding” funds the state’s SLDS data-mining aligned programs made palatable to citizens and legislators under the branding of “education.”)
It’s tragic and ironic that the Governor has often said that Utah can get out of Common Core anytime we want to. The Utah Attorney General validated that statement in his report, saying that Utah’s Common Core doesn’t cede control to the federal government. (See rebuttal to the report here.)
But how would Utah free herself now of Common Core?
We’ve decided to sign away, in ink made of the sweat and blood of taxpayers who earned the hundreds of millions— any real possibility of withdrawal from the Common Core.
How would Utah ever get out of Common Core after recreating our whole education system based on the experiment of Common Core and Common Data aligned technologies and tests? (Not only that– we are now leading others along: Utah now gains millions by selling our Common Core test questions to other states, making them dependent on us for their own Common Core assessments.)
How foolish are we, to keep investing and investing— in something that was built on a sandy, utterly experimental, and unconstitutional foundation from the start?
The Governor’s even planning to hike gas taxes to support his enthusiasm for the workforce-pipeline version of “education”. The Deseret News reported that “The governor’s spending plan… puts pressure on lawmakers to look at a gas tax increase by calling for $94.2 million in sales taxes earmarked for transportation to instead be used for education.”
The Utah Board of Education praised the governor this week: “The Board of Education is very pleased that the Governor recommends such a large investment in Utah’s public education and its children. Like the Governor, the Board of Education believes the best educational policy in Utah is made in Utah by Utahns.“
Sadly, these are lies. The funding decisions aren’t set up to bless children. The programs being funded just promote centralized–not local– control.
This week’s decision to spend more than has ever been spent before on “education” is almost entirely focused on Common Core and Common Data Standards-aligned technology. These are D.C. based systems.
Aligning to these systems is not motivated by care for children. Foremost it benefits the market; secondly, it benefits Sec. Duncan’s and the CCSSO’s unconstitutional programs and policies: it’s top-down, rather than local, accountability.
This is far from being policy being “made in Utah by Utahns.” This is voter-unvetted policy being duplicated precisely from policies laid out by Obama, Arne Duncan, Bill Gates/Microsoft/Pearson Inc, CCSSO, Choice Solutions, Utrex, and the rest of the partnered organizations and corporations that profit deeply from Utah’s taxpayers’ gullibility and the same-ifying of Common Core (CCSS) education and Common Data (CEDS) education data systems.
Remember that Common Core/Common Ed Data financier Bill Gates said: “We’ll only know that this effort has succeeded when the currriculum and tests are aligned to these standards …The Common Core …when the tests are aligned to the common standards, the curriculum will line up as well, and it will unleash a powerful market… For the first time, there will be a large, uniform base of customers“.
That “powerful market” and its “uniform base of customers” includes Utah’s clueless taxpayers and legislature. Gates’ customer base is being funded by Governor Herbert to benefit the Utah Chamber of Commerce and the D.C. based, Gates-funded, private organizations behind Common Core.
It was Gates who funded CCSSO, both the CCSSO’s copyrighting of the Common Core and its creation of CEDS common data standards used in the State Interoperability Framework (SIF) that the federal government mandated for all states’ use in each SLDS “education” tracking database.
The Governor’s new budget gives:
“$500 million for the state’s public and higher education systems, bringing total state education spending to approximately $4 billion. The Governor recommends over $340 million in support of public education…Major investments include $10.7 million for the Utah Education Network (UEN) to connect schools by providing statewide technology infrastructure. [This is the SLDS database.] An additional $56 million …provides funds for buildings or technology infrastructure to small school districts… The budget recommends $1.5 million for innovative approaches and collaboration for
college and career counseling and $2.4 million for the Utah Futures website.”
These budgetary decisions do not educate. They strengthen the tracking systems, the prediction systems, the control systems.
Do you see the tragic humor in these words from the governor’s budget?
“Unlike those who want to micromanage the public education system from the state level, the Governor believes that the state should establish general policy goals and expected outcomes and allow local control in the specific methods of attaining those goals.“
The opposite is happening.
Utah’s SLDS database, which was built to federal specs, using common data standards (CEDS) and an SIF national-interoperability framework, from which no Utah school district nor parent may opt any child out, does not allow any kind of “local control”. Neither does funding “Utah Futures,” which calls itself the one-stop career and college readiness* website and which fulfils the Governor’s socialistic workforce focus that puts citizens in a cradle-to-workforce “P-20″ human capital pipeline, with central planning and far less personal freedom in education– just like China.
I wish our legislature were not afraid of offending those who accuse them of not funding “the needs of the children”–who give in and fund anything calling itself education. Funding for UEN, Utah Futures, SLDS technologies and Common Core testing infrastructures is not meeting children’s needs. Shame on those who say that it is.
Shame on this foolish waste of hundreds of millions of vital tax money on the shackles of Common Core.
*Career and college readiness, college-and-career-ready standards, and any other similar sounding word, means in the redefined langugage of the Department of Education, Common Core aligned.
This month in Wappingers Falls, New York, a panel presented concrete ideas for how to take back control of education from the federal government and from its corporate Common Core partners.
To these ideas, add the brilliant idea recently presented by Utah Dad Oak Norton. View that here.
Three remarkable Alpine School Board Members: Wendy Hart (front left) Brian Halladay (standing, middle) and Paula Hill (front, right) have written an open letter on student privacy, citing documented realities (contracts, documents and laws) that boldly stand for student privacy and parental rights, against Common Core SAGE/AIR testing. The letter stands tall against statements from State Associate Superintendent Judy Park and the Utah State Office of Education that claim all is well with student privacy in Utah schools.
Hats off to Hart, Halladay and Hill for speaking up despite pressure to go along in silence with the decisions or positions held at the state level.
Before I post the letter, here’s a little background:
Before Common Core testing even began, Utah officially dropped out of SBAC (a federally funded Common Core test maker) but then immediately picked up, as a replacement, test maker AIR (American Institutes for Research– also federally approved, but not federally funded; Common Core-aligned; a test maker that specializes in psychometrics and behavioral testing, prioritizes promoting the LGTB philosophy –and is officially partnered with SBAC!) Many Utah parents are opting their children out of these tests, and state level officials are desperately trying to persuade the population that there’s no reason to opt out.
Statements promoting and approving AIR and SAGE, by Assistant Superintendent Judy Park, have been rebutted and even publically debated before– but this new letter stands very, very tall, shedding much more light on the student privacy dangers of SAGE/AIR and highlighting the lack of Utah laws that protect an individuals’ ownership over his/her own data.
Here’s the letter:
September 18, 2014
Dr. Judy Park
Utah State Office of Education
Dear Dr. Park,
Thank you for taking the time to address some of the issues with AIR and SAGE testing. We especially appreciate your citations of the contract. In the interest of openness and transparency, we have a point of clarification, as well as some follow-up questions.
To begin, a point of clarification. Your letter is directed to Superintendent Henshaw who communicated some of our concerns about SAGE and AIR to you. In your letter, you indicate that “False, undocumented and baseless allegations need to cease.” We wish to clarify that the concerns expressed by Dr. Henshaw were not coming from him, and, as such, your directive would not be to him but to those of us on the board and our constituents who are raising questions, based on our reading of the AIR contract with USOE. Because Dr. Henshaw reports to the Alpine School Board and not the other way around, any directive for Dr. Henshaw to rein in these ‘allegations’ from board members or constituents would be inappropriate. We can appreciate that you are troubled by this, but we would recommend that more information and more discussion would be a preferable way of resolving concerns, as opposed to suggesting that concerned representatives and their consitutents simply remain silent.
So, in that spirit of openness, we have the following clarifications and follow-up questions.
We begin by addressing the sections of the AIR contract cited in your letter of August 14. It was very much appreciated because these are the same sections of the contract that we have studied. We were hopeful that there would be additional insight. Unfortunately, we did not find any assurance in the pages listed.
I-96 – I-98: This section nicely addresses the physical, network, and software security for the server and test items. However, the only reference to AIR employees, their ability to access or use any data is left to “Utah’s public records laws, FERPA, and other federal laws.” FERPA, as many know, has been modified by the US Dept of Education to allow for the sharing of data without parental knowledge or consent as long as it can be justified as an ‘educational program’. Additionally, FERPA only contains penalties for those entities receiving federal funds. Since Utah is paying directly for SAGE testing, FERPA is a meaningless law in this regard. Additionally, Utah’s public records laws appear to only address the openness of public records, but are insufficient when it comes to privacy or use of data, including that of a minor. If there are robust privacy laws in Utah’s public records laws, we would appreciate additional citations. Please cite the other federal laws that protect the privacy of our students.
I-61: Addresses the technical protocols for the data transfer, as well as encryption of passwords. Again, this doesn’t address those who are given access by AIR to the data for whatever purpose.
I-72 – I-73: Addresses the security of those contractors who will be manually scoring during the pilot testing. This addresses a particular third-party in a particular role, but not AIR as an entity or its employees, other than this particular instance.
I-85 – I-86: Addresses the issues of users and roles for the database and USOE updates. This limits the appropriate access to those of us in Utah, based on whether we are teachers, principals, board members, USOE, etc. Again, this does not address anything about AIR as an entity or its employees.
While all these security precautions are necessary, and we are grateful they are included, they do nothing to address the particular issues that were raised at the August 12, 2014 Alpine School Board Meeting. Some of our concerns are as follows:
1) Prior to the Addendum from March 2014 (for which we are grateful) there was no prohibition on sharing data with a third-party. As indicated, the changes to FERPA would allow AIR to legally share data with a third-party as long as that sharing was for ‘an educational program’ without parental knowledge or consent. As such, the addendum now allows for that sharing only with the USOE’s consent. We are still concerned that parents are not asked to give consent and may not have knowledge of their student’s data being shared.
2) AIR itself is a research firm dedicated to conducting and applying the best behavioral and social science research and evaluation. As such, they are involved with data collection and evaluation. In the contract and addendum cited, there is nothing that prohibits how AIR or its subsidiary organizations may use, query, analyze or access any or all student data from the SAGE tests in Utah. They would have access to many data sets from many entities. They also would have multiple on-going research projects. There is no prohibition on what inquiries, research or analysis can be done on the data from SAGE testing. As long as AIR does not profit from the data or share with a third-party without the USOE’s consent, the data is managed by AIR and available for access. What are the methods in place to prevent AIR from accessing the data for additional research or analysis? AIR does not need to share the data with a third-party to violate the privacy of a student or a set of students. However, since they control and manage the database, there is nothing that would prevent this access.
3) There are no prohibitions in the contract regarding behavioral data. While we realize Mr. Cohen has said the contract does not call for gathering or evaluating behavioral data, and that AIR is not inclined to do so, there are, again, no prohibitions or penalties associated with gathering or evaluating behavioral data. State law allows for the use of behavioral data in the year-end testing. So, there are no legal prohibitions on the use or collection of behavioral data. Since behavioral research is the primary mission of AIR, as indicated by its mission statement, it is a concern for parents. If AIR has no desire to collect behavioral data as part of the SAGE testing, it should state so explicitly in a legally-binding manner.
4) Many parents have, legally, opted out of SAGE testing for their students. As such, why is AIR receiving any information on these students? Parents feel it is a grave violation of their trust by USOE that any data the USOE has received from the schools can be input into the SAGE database, not to mention the State Longitudinal Database System (SLDS). There must, at a minimum, be a way for parents to opt out of all sharing of their student’s dat with AIR and the SLDS. At what point, if any, will student data be purged from the AIR database? What is the method for demonstrating the data has been properly purged?
Additionally, we appreciate the response of Mr. Cohen to our concerns. Based on his response, we have the following questions.
1) Please list the “express purposes” for which the release, sharing or sale of data is not prohibited, per contract.
2) What third parties are AIR “explicitly permitted by the State of Utah” to provide data to?
3) What research has AIR been requested and directed by the Utah State Office of Education to conduct?
4) What entity (or entities) has AIR been authorized by the State of Utah to release data to?
5) Please list the source of the contract that states that AIR is prohibited from releasing data to the federal government.
6) What entity (or entities) have been designated by the USOE to receive data from AIR?
7) The memo does not address companies owned or operated by AIR, which would not be considered third-parties. Please state, per contract, where AIR does not share data within related party entities.
Finally, we have the following questions related to the validity and reliability of the SAGe testing. We understand that this information would not be protected by copyright, and therefore, could be provided to us, as elected officials.
1. Normative Sample Details (who took the test)
2. Coefficient Alpha Reliability
3. Content description Validity
4. Differential Item Function Analysis
5. Criterion Prediction Validity
6. Construct Identification Validity
7. Other types of validity scales/constructs that are applicable only to CAT test designs
We appreciate the opportunity to discuss this more in the future. As those who are responsible to the parents of this district, we feel it is imperative that our concerns are addressed. And, when all is said and done, it is most important that parents have the opportunity to protect whatever student information they feel is necessary. Just because parents decide to educate their children in our public school system does not mean that we, as a state government, are entitled to whatever information about their children we feel in necessary. Parents are still, by state law, primarily responsible for the education and the upbringing of their children. As such, their wishes and their need to protect information on their students is paramount. As members of the Alpine School Board, we must represent the different views and concerns of all the parents in our area. For those who have no concerns, then you may proceed as usual. For those who do have concerns, it is incumbent on us to raise these questions and to obtain the most accurate information possible.
Thank you for your time, and we look forward to more information in the future.
I wish every Utah parent, teacher, student and principal read this letter– and took action!
The time has long passed for blind trust in Dr. Park, in the State Office of Education and in the State School Board. Surely, power holders –in the legislature, in district administrative offices, and in the governor’s office who read this letter– will finally act.
Share this letter!
Last week in Florida, citizens stood against the Florida’s acceptance of the RTTT bribe of the federal Department of Education which engaged the state in Common Core. In this video from a Florida radio program, Jason Hoyt explains the details of that Florida Grand Jury case.
At minute 3:20 you’ll hear that in a town meeting in North Florida, 25 lead jurors were elected for a Grand Jury who met at the courthouse last Thursday at 10:00 a.m. and the next day, Friday, filed two bills stamped by the clerk of the court, Dana Johnson at 4:31 p.m.
The first complaint was for obstruction of justice and jury tampering. The second is for the acceptance of bribery for the implementation of Common Core. (See minute 4:18.) Watch the video for more details.