BYU Professor Ed Carter is an expert on copyright. I called him to learn more about what it means to have our Utah educational standards under copyright by the NGA (National Governor’s Association) and the CCSSO (Council of Chief State School Officers).
So, how bound are we?
Professor Carter made it clear that his was not professional legal advice, nor was it any official statement from BYU.
He said it appeared to him that the NGA/CCSSO copyright on the Common Core State Standards (CCSS) is a smokescreen.
Smokescreen – an action intended to obscure, conceal or confuse.
Smokescreen – a mass of dense artificial smoke used to conceal military areas or operations.
Because governments cannot copyright things (this was news to me) the Dept. of Education not only couldn’t legally write national standards under GEPA law* and the Constitution (I knew that part) but the Dept. of Education could not copyright standards, either.
So it’s getting clearer and clearer. The only way the Dept of ED could do this nationalization of education and yank local autonomy out of our hands –and appear sort of legal about it– was to promote Common Core via other groups. –And they have: Achieve, NGA, CCSSO, Bill Gates– all nongovernmental groups– have written, promoted and paid for the Common Core.
The really odd part is that on the official Common Core website there’s a copyright page that says nobody better claim to have written these standards. Yet, we’ve all been told that Common Core is a “state-led” initiative, with no federal strings attached, and the states themselves got together and wrote the standards. Hmmmm. Compare: “NGA Center/CCSSO shall be acknowledged as the sole owners and developers of the Common Core State Standards, and no claims to the contrary shall be made.” http://www.corestandards.org/public-license
No, the NGA/CCSSO cannot force us to obey the national standards. They just developed them and copyrighted them, but of course, since we didn’t elect them, we have no way to change the standards nor the administrators over them.
Simultaneously, the Dept. of Education promoted the standards and even went so far as to say states can’t delete anything from the CCSS national standards, and are limited in adding anything to them beyond 15%. The Dept. of Education can enforce this obedience to the copyright through coercion. They fund grants and offer waivers that can only be received on conditions of accepting the Common Core standards.
But there is a loophole!
I’ve been writing letters, begging our Governor and other state leaders to use that loophole. It’s not complicated; Virginia did it. They chose option 2 rather than option 1. See:
On page 8 of the ESEA Flexibility document (updated June 7, 2012) found at http://www.ed.gov/esea/flexibility, it says: “A State’s college- and career-ready standards must be either (1) standards that are common to a significant number of States; or (2) standards that are approved by a State network of institutions of higher education”.
Same thing appears on the official ED website: http://www.ed.gov/race-top/district-competition/definitions.
They define “college- and career-ready standards: Content standards for kindergarten through 12th grade that build towards college- and career-ready graduation requirements (as defined in this document) by the time of high school graduation. A State’s college- and career-ready standards must be either (1) standards that are common to a significant number of States; or (2) standards that are approved by a State network of institutions of higher education, which must certify that students who meet the standards will not need remedial course work at the postsecondary level.”
Here’s my question. The ESEA flexibility request window shuts down Sept. 6, 2012. Does this mean we have to resubmit our waiver request before then, or lose the option of doing loophole option 2 forever? I do not know the answer to this question. It seems incredibly important and I sure hope our state leaders are on it.
* GEPA LAW: No provision of any applicable program shall be construed to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over the curriculum, program of instruction, administration, or personnel of any educational institution, school, or school system, or over the selection of library resources, textbooks, or other printed or published instructional materials by any educational institution or school system…