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Common Core Memo from Judge Norman H. Jackson

July 18, 2012

MEMO TO UTAH STATE BOARD OF EDUCATION

Because of my training and experience in law, economics and education, I have researched and analyzed the relevant documents and current dialogue, and shared written legal analysis and conclusions. Since the primary issue facing you is our status with SBAC, I summarize my examination of the controlling documents.

1. The MOU dated May 14, 2010, Membership Eligibility Requirement:

TO REMAIN in the Consortium, Utah must assure that it will adopt “a common set” of college and career standards and “common achievement standards” pursuant to NIA definitions. TO EXIT, Utah must comply with a five step process: (1) file a request with SBAC (2) including statutory policy reasons for doing so (3) submit it to the Project Management Partner, Washington State, for approval (4) wait seven days for Washington State to approve or disapprove the application (5) and if approved, seek final approval from the U.S. Department of Education. The approvals from these outside sovereigns are entirely within their discretion because there are no guidelines.

2. The SBAC Governance Structure Document dated July 1, 2010:

The minutes of the State School Board meeting on August 6, 2010 state that the Board voted to adopt the Common Core Standards. This document states that it “supersedes the specific governance provisions of the MOU,” and has the same five-step Exit Procedure as the MOU.

3. The Cooperative Agreement Between the U.S. Department of Education and SBAC dated January 7, 2011 (RTTA Award): The award is deemed cooperative because the Secretary of Education has determined that “substantial involvement” of the Department is necessary for success. The Appendices contain 14 Conditions, including compliance with the Stimulus Act (ARRA) and all applicable operational and administrative provisions. There are Budget tables totaling $149 million for four years, plus $10 million for three years of comprehensive assessment. Further, there is a survey of operational costs for each SBAC state. The estimate for Utah is $383,000 of general funds and $1,595,000 of Federal Funds. Finally, the separate Grant Award Notice covered the $149 million and $10 million items above. And it specified “substantial involvement of the Department of Education.”

In my opinion, the plain language of these contracts legally binds Utah and the SBAC to proceed with implementation of the Common Core Standards.

Frankly, my reaction to President Obama’s Common Core initiatives was virtually identical to Governor Herbert’s recent reaction to the Affordable Care Act – The Act “imposes a one-size-fits-all plan on all states, effectively driving us to the lowest common denominator.” … It results in burdensome regulation, higher costs, and a massive budget-busting Medicaid expansion.” (Governor’s Press Release) Why did I think that? Two reasons: First, because two years ago Secretary Duncan told the National Press Club, “It is ludicrous to have fifty different goalposts” for U.S. Education. Second, because the NCLB waiver he just granted to you by his authority pursuant to a Federal Statute (ESEA) requires the Board to “adopt ALL Common Core Standards” within two years. Also, that he will “closely monitor” Utah in the meantime.

Our Governor continues to say that “participation is voluntary” and that “states can exit whenever they choose without penalty.” (Email dated July 12, 2012) So, why not make that choice now rather than later? By 2014, you and your constituents will know whether you made a wise and prudent choice. But, by then, it will be too late to chart a different course for Utah’s students.

Last week, the Sutherland Institute published a “navigation map” to exit Common Core that just might work.* I encourage you to give it serious consideration. It could be the best channel out. I do hope that you can guide Utah’s students to a safe harbor. Best wishes.

Sincerely yours,

Judge Norman H. Jackson

*See, Pages 8-12, Common Core: Is it Best For Utah Children? (July 9, 2012)

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