Judge Norman Jackson: The Two Schools of Thought of Citizens Versus the Utah State Office of Education

Here is the full text of the memo Retired Utah Judge Norman Jackson wrote after he reviewed the legally binding documents that tie Utah to the Common Core Initiative.

For those who won’t read every word, here’s a summary.  There are 2 schools of thought:  1) The USOE says: Common Core is just a movement for common educational standards, and it’s no threat to state sovereignty nor to the budget.  2) Citizens –like me– say:  Common Core hijacks Utah’s freedoms: it robs parental authority over private student data, it forces Utah into a one-size-fits-all lockstep program Utah can not amend or add to; it bleeds the state educational budget that was already suffering, it allows the federal government to call the shots for the common test and to collect family and student non-academic data forevermore; and it deletes high standards in favor of common ones.

Guess who the judge sided with?  Not the Utah State Office of Education.  

 

MEMO: TO WHOM IT MAY CONCERN
SUBJECT:   FEDERAL/STATE COMMON CORE EDUCATION INITIATIVES AND STANDARDS
FROM: JUDGE NORMAN H. JACKSON, UTAH COURT OF APPEALS, RETIRED.

Some concerned Utah parents recently asked me to evaluate the following contractual documents:

LEGAL ANALYSIS OF UTAH’S COMMON CORE STANDARDS CONTRACTS –

1. “Memorandum of Understanding/SMARTER Balanced Assessment Consortium/Race to the Top Fund Assessment Program: Comprehensive Assessment Systems Grant Application/CFDA Number: 84.395B.”

This contract is dated May 14, 2010. The State of Utah became a party to this contract when it was signed by Superintendent Shumway 05/20/10, School Board President Roberts 05/20/2010, Procurement Official Beers on 05/25/10 and Governor Herbert on 05/25/10. All participating states signed separate portions of the document consisting of about seventeen pages each.
The State of Washington signed a separate signature block as the member acting on behalf of ALL states joining the Consortium. Washington State officials signed the contract and certified as follows:

“I certify on behalf of the Consortium that each member of (it) has agreed to be BOUND by every statement and assurance in the application and that each Governing State is FULLY COMMITTED to the application and WILL SUPPORT its implementation”. Utah is #5 of 16 Governing States. (Page 12)

To be an eligible Consortium, at least 15 states must participate and at least 5 of them must be Governing States. Washington is designated as both a Governing State and the Lead Procurement State/Lead State for the Consortium. 30 states have signed the contract with 17 designated as Governing States. Utah is listed as one of the Governing States above.
Eligibility Requirement (3), Page 15: To remain in the Consortium, each applicant must submit an assurance that (1) by December 31, 2011, it WILL ADOPT a common set of college and career standards pursuant to NIA definitions and (2) by the 2014-2015 school year, it WILL ADOPT common achievement standards per NIA definitions. Note the mandatory language.

Utah’s Memorandum of Understanding (MOU) above is numbered pages “UT 1-17”.  It BINDS Utah to the PROGRAM published in the “Federal Register on April 9, 2010 (75 FR 18171-18185).  The stated purposes of the MOU are numbered (a) to (h). Purpose (f) prescribes how a state can enter, EXIT or change status. A state can leave the Consortium “without cause”. BUT IT MUST COMPLY with a FIVE STEP EXIT PROCESS: (1) File a written request and the reasons for it, (2) must include the statutory or policy reasons for it, (3) submit to Project Management Partner with same signatures as the MOU, (4) the Executive Committee is to act on it within a week, and (5) if APPROVED, the Project Management Partner will submit a change of membership to the United States Education Department for its APPROVAL. (Both Approvals are discretionary rather than mandatory.)

Based on the above plain language of this Contract (MOU), I am of the opinion that the State of Utah is legally bound by and locked into the Consortium on a contractual basis. Further, Utah would find it difficult to withdraw/exit (1) because there has been substantial performance of the contract by all parties (assuming there was compliance with past contractual deadlines) and (2) because the exit process requires discretionary APPROVAL of the Executive Committee of the State partners plus discretionary APPROVAL of the Federal Government. The following Contracts bind Utah to further Common Core Standard provisions.

2. Smarter Balanced Assessment Consortium Governance Structure Document dated July 1, 2010, Amended November 22, 2011. The amendment was approved by vote of the Governing States on December 5, 2011 with 16 in favor and 0 opposed.
An official of the State of Utah must have approved this contract by an affirmative vote. I assume it was our State Superintendent.  In any event, the minutes of the State School Board Meeting held August 6, 2010, state that the Board officially voted to adopt the Common Core Standards. Moreover, “This document states that it “supersedes the specific GOVERNANCE structure provisions set forth in the MOU”.
Section IV, B sets forth the identical exit process above described.  It appears that Utah now can act by a VOTE to approve and amend these contracts rather than signing them.

3. Cooperative Agreement between the U.S. Department of Education and the Smarter Balanced Assessment Consortium and the State of Washington (fiscal agent) dated January 7, 2011. (190 pages).
The objective of this document is “to assist the consortium in fulfilling, at a minimum, the goals articulated in the consortium’s approved Race to the Top Assessment (RTTA) application per requirements published in the Federal Register on April 9, 2010”. This award is a cooperative agreement in accord with 34 Code of Federal Regulations 75.200(b)(4) because the Secretary of Education has determined that substantial involvement between the U. S. Department of Education is necessary to carry out a successful project.
It contains a Project Management Plan listing the Responsibilities of the Recipient and the Federal Government. Patrick Rooney is designated as the Program Officer for the United States Department of Education and Joe Wilhoft is designated as the Program Representative for Washington State (Smarter Balanced Assessment Consortium). The estimated cost for the work to be performed under this Agreement 2is $159,976,843 and $15,872,696 for a supplemental award.

Article VI – Failure to Address Objectives states: “Failure to comply with the content of this agreement may result in the Secretary imposing special conditions on the award pursuant to EDGAR Section 80.12 or taking other enforcement actions, including partly suspending or terminating the award pursuant to EDGAR Section 80.43.

Appendix E lists fourteen Race to the Top Conditions including: Condition B requires compliance with sections 14005 and 14006 of the American Recovery and Reinvestment Act (ARRA). Condition C requires compliance with “all applicable operational and administrative provisions in Titles XV and XVI of the American Recovery and Reinvestment Act (ARRA).
Appendix A8 contains Budget Tables, Narratives and Detailed Budget Modules. Part A: Summary Table projects Budgets for four years for the following items:  1. Governance $10,435,922.  2. Assessment Design $97,950,884. 3. System Design $428,693. 4. Research and Evaluation $5,008,550.  5. Professional Capacity and Outreach $ 7,550,650.  6. Technology $27,074,143.  7. Higher Education Engagement $1,538,977. Total = $149,987,819.  $9,994,724 is then budgeted for three years of Comprehensive Assessments.
Appendix A8-7: Survey of Operational Costs for Smarter Balanced Assessment Consortium States itemizes “Estimated Annual Contracted Expenditures for Mathematics and ELA Assessment” divided between General Funds and Federal Funds:  The estimate for #27 Utah is $383,000 of General Funds and $1,595,000 of Federal Funds.

In my opinion, the plain language of the three contracts legally binds Utah and the Consortium to proceed with implementation of the Federal Common Core Standards.
Additionally, this Opinion is supported by the material fact that on September 28, 2010, Director Joseph Conaty, of the United States Department of Education, Office of Elementary and Secondary Education, Academic Improvement And Teacher Quality Programs, delivered to Washington State Governor Gregorie a grant award notification (GAN) for the Race To The Top Assessment Program. The award was funded by the American Recovery and Reinvestment Act on the basis of an approved budget of $159,976,843 for the Smarter Balance Assessment Consortium. The notice set a deadline of January 7, 2011 to finalize the above Cooperative Agreement which bears the same date.

The GAN states that it will “include substantial involvement on the part of the Department of Education. A second GAN was enclosed for a supplemental award of $15,872,696 with the same conditions and deadline.

COST TO ALIGN UTAH TO THE NATIONAL COMMON CORE STANDARDS –
At this point, I have not been able to confirm whether Utah’s Budget for fiscal year 2012-2013 included funds from the Consortium. Even so, Utah has already been expending funds to implement the Race to the Top Assessment Program. Also, it is not clear if either our Executive Branch or the Legislature has estimated the costs Utah will incur during the next four years to implement and align the Program.
I have located a recent national study which contains some estimates for Utah: National Cost of Aligning 3States and Localities to the Common Core Standards, A Pioneer Institute and American Principles Project White Paper, No. 82, February 2012.

These are mid-range estimates that only address basic expenditures required for implementation of the new standards. Also, they are based on a typical standards time horizon of seven (7) years rather than four (4) years.
Figure 4B, Professional Development Costs for the States in Smart Balance Assessment Consortiums Only. Utah’s estimate is $50,000,000. (Page 16)
Figure 5B, Textbooks and Materials Costs for States in Smart Balance Assessment Consortiums Only. Utah’s estimate is $35,000,000. (Page 19)
Figure 6B, Multi-Year Technology Costs for States in Smart Balance Assessment Consortiums Only. Utah’s estimate is $100,000,000. (Page 22)

The study states that “As of this writing, none of the states that have adopted Common Core have released a cost feasibility analysis of the technology infrastructure and support necessary to administer either of the testing consortia’s online assessments”. It concludes “Implementation of the Common Core Standards is likely to represent substantial additional expense to most states. While a handful of states have begun to analyze these costs, most states have signed on to the initiative without a thorough public vetting of the costs and benefits. In particular, there has very little attention to the potential technology infrastructure costs that currently cash-strapped districts may face in order to implement the Common Core assessments within a reasonable testing window”.

Queries: Has Utah begun to analyze these costs? Has there been a thorough public vetting of both the costs and the benefits?

Date: April 12, 2012. Judge, Norman H. Jackson, Utah Court of Appeals, Retired. (801) 224-4947. normjacksonjd@msn.com.