Common Core unconstitutional and illegal

Common Core puts a worm into this apple.
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The decline of the once exemplary American educational system was the issue that converted me from a political neophyte into a political activist. The educational programs in vogue from the 1990s to 2013 have run the gamut from Goals 2000, School-to-Work, Outcome-based Education, Race to the Top and No Child Left Behind. The new kid on the block is commonly referred to as Common Core, which isn’t really new at all, just a re-invention and re-labeling of the government’s other failed attempts to take-over education. The full name of Common Core is Common Core State Standards (CCSS). Oddly enough, the only way CCSS addresses state standards is in its agenda to usurp them.

In addition to the foolishness of adopting untested standards to unanticipated expenses, CCSS has the potential to permanently damage education, as well as usurping our responsibilities as parents. Additionally, it replaces local boards of education with centralized planner. These centralized (and unelected) planners can very often be out of touch with life in certain demographic regions and will have the power to dictate what every child will learn and not learn. The problem will go beyond exacerbating an already struggling academic system; it will also present legal challenges that will consume the resources of the states that are foolish enough to adopt it unnecessarily. This is not a good scenario.

Common Core unconstitutional

Common core education would poison education in New Jersey

Hartshorn School, Short Hills, NJ. Photo: CNAV (file)

Regarding its constitutionality, the 10th Amendment of our Constitution specifically states:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Our Founders displayed a great deal of wisdom when they wrote those words. They understood the importance of a federal government that needed to have certain enumerated powers in order to operate properly, and they also understood the importance of state governments that were more closely connected and accountable to the people in their respective states. CCSS is blurring those lines and as it does so, it breaks down the wall between our federal government and our local government, which our Founders sought to protect. In so doing, it takes the educational decisions from parents and gives it to bureaucrats living somewhere in D.C.

Furthermore, the powers delegated to the federal government according to the United States Constitution are enumerated in Article I, Section 8. Nowhere in this section of the Constitution is education mentioned. Therefore, a simple reading of the Constitution more than implies that matters regarding education are the purview of the state and not the federal government.

Common Core: illegal

The General Educational Provisions Act (20 USC § 1232a) (GEPA) also prohibits federal overreach. It states:

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 education institution or school system, or to require the assignment or transportation of students or teachers in order to overcome racial imbalance.

Additionally, the Elementary and Secondary Education Act of 1965 as amended by the No Child Left Behind Act of 2001 (20 USC 7907(a)) (NCLBA) also makes the federal over-reach of CCSS ill-advised. It states:

Nothing in this Act shall be construed to authorize an officer or employee of the Federal Government to mandate, direct, or control a State, local educational agency, or school’s curriculum, program of instruction, or allocation of State and local resources, or mandate a State or any subdivision thereof to spend any funds or incur any costs not paid for under this Act.

Regarding the violation of the Constitution, the NCLBA and the GEPA, the Cato Institute researchers have concluded that despite the claim that the adoption of CCSS is technically voluntary, “adoption will almost certainly be de facto involuntary, and the standards themselves ultimately federal.”

In New York, where CCSS has been adopted, privacy acts have also been violated. The New York Daily News reported that parents were neither informed nor did they give permission for New York to allow private data about their children to be collected and shared.

This violates FERPA – Family Educational Rights and Privacy Act (20.U.S.C. Sect 1232g et seq ), which is a national Student Privacy Law requiring written parental consent. FERPA provides student and parent access to school records and a parent’s right to request modification of them; as well as protecting confidentiality of student records. It should be noted that a student or teacher who feels that one of these statutes passed by the United States Congress has been violated by state action may bring an action in a federal court after exhausting the applicable administrative remedies.

The New York Daily News reported on the CCSS privacy violations in New York. It stated:

If this information leaks out or is improperly used, it could stigmatize a child and damage his or her prospects for life. The state and the city are setting themselves up for multimillion-dollar class-action suits if and when these data breaches occur. (03-13-13). (Emphasis added.)

The Electronic Privacy Information Center in Washington is suing the U.S. Education Department in an effort to stop the illegal collection, storage, and sharing of student data (03-13-13). (Emphasis added.)

Regarding the illegal collection of data about students, in another article, The New York Daily News reported:

The city will collect information from parents, students and teachers, share it with the state Education Department and store it on inBloom. The information is then shared with contractors who peddle educational products and services using the sensitive data.

The data [which] inBloom receives from the education department will be placed in a vulnerable data cloud. Many technology professionals do not trust clouds for their more sensitive data (03-14-13).

InBloom’s own privacy policy states that it “cannot guarantee the security of the information stored in inBloom or that the information will not be intercepted when it is being transmitted.

Furthermore, CCSS data collection provision violates the Protection of Pupil Rights Amendment (PPRA), (20 U.S.C. § 1232h), which requires [School District] to notify you and obtain consent or allow you to opt your child out of participating in certain school activities. These activities include a student survey, analysis, or evaluation that concerns one or more of the following eight areas (“protected information surveys”):

  1. Political affiliations or beliefs of the student or student’s parent;
  2. Mental or psychological problems of the student or student’s family;
  3. Sex behavior or attitudes;
  4. Illegal, anti-social, self-incriminating, or demeaning behavior;
  5. Critical appraisals of others with whom respondents have close family relationships;
  6. Legally recognized privileged relationships, such as with lawyers, doctors, or ministers;
  7. Religious practices, affiliations, or beliefs of the student or parents; or
  8. Income, other than as required by law to determine program eligibility.

This requirement also applies to the collection, disclosure or use of student information for marketing purposes (“marketing surveys”), and certain physical exams and screenings.

Common Core: how to stop it

If your state has adopted CCSS, you should ask them if they know that CCSS violates the Constitution, The General Educational Provisions Act, the No Child Left Behind Act, the Family Educational Rights and Privacy Act, and the Protection of Pupil Rights Amendment?

If so, are they prepared to defend this decision in the courts?

Additionally, since CCSS represents an unprecedented surrender of state educational control to Washington (as well as violating a number of laws, as aforementioned), they should consider that U.S. Senator Charles Grassley (R-IA) made this point in a letter to the Appropriations Committee:

The decision about what students should be taught and when it should be taught has enormous consequences for our children. Therefore, parents ought to have a straight line of accountability to those who are making such decisions. State legislatures, which are directly accountable to the citizens of their states, are the appropriate place for those decisions to be made, free from any pressure from the U.S. Department of Education.

As if all of the inevitable lawsuits aren’t bad enough, they would also be opening their respective states up to funding a defunct federal program.

Additionally, Sen. Grassley is asking the Senate Appropriations Committee to cut off funds that allow the Obama administration to cajole states into adopting Common Core standards and national standardized tests by tying some funding to CC adoption. If Grassley is successful and states adopt CCSS, what happens to a program that is partially implemented? More specifically, who pays for it once the feds back out?

In closing, I would like to encourage everyone to find out exactly where your State stands regarding CCSS. And, if it has already adopted CCSS (as is probably the case), then I suggestion you do your best to increase public awareness and put together groups that are willing to “encourage” the State to withdraw from this ill-advised and destructive plan.

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Common Core: educational poison