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One year ago, Libertas Institute announced a lawsuit against the State Board of Education over its adoption of Common Core, alleging that the Board had violated two laws in so doing—both of which dealt with public notice and input. The Board’s violation thus prevented Utahns from seeking to alter or oppose the untested standards, and led to them being hastily implemented in this state.
Since that time, attorneys for the plaintiffs have been involved in discovery requests, reviewing documents generated by the Board relative to Common Core’s adoption and implementation. However, the Attorney General’s office has now filed a motion to dismiss the lawsuit altogether.
The AG’s office, representing the Board, claims the following:
- The plaintiffs cannot bring the lawsuit against the Board, because the clock has run out—the “statute of limitations” has expired, and so no lawsuit against Common Core’s implementation is valid.
- The plaintiffs must file an administrative appeal through the Board itself, rather than suing in court.
- The plaintiffs lack legal standing to sue the Board, and therefore the lawsuit should be dismissed.
- The plaintiffs failed to state a valid claim upon which relief may be granted.
You can read the AG’s 36-page brief here. It is effectively a procedural argument, attacking the plaintiff’s standing, the court’s ability to even hear the case, and the timing of the lawsuit itself. Critics might reasonably infer that because the Board’s violation of the law is clear, this is a desperate attempt to make the lawsuit go away without arguing the merits of the arguments themselves.
The attorneys for the plaintiffs—a group of educators, employers, and parents—have just filed a 17-page motion in opposition to the AG’s request, which you can read here. The arguments are as follows:
The statute of limitations does not apply; the clock has not run out
Challenging administrative rules must be done within two or four years of an agency’s rule’s “effective” date, but the Common Core standards have never become effective as that term is defined under law, because the standards were never adopted as a rule; there is no effective date if there is no rule. Additionally, the standards were not “operative and enforceable” until 2014, making the filing of the plaintiffs’ claims well within the two or four year statute of limitations.
The plaintiffs can’t file an administrative appeal; the court does have jurisdiction
The court has subject matter jurisdiction because administrative remedies were unavailable to the plaintiffs, as the Common Core standards were never adopted as a rule—a prerequisite to making an administrative challenge. The plaintiffs’ only recourse is to file a lawsuit to force the Board to use the administrative process in adopting and implementing CCS, so that the plaintiffs can then seek administrative remedies. The Board is effectively seeking to deny the plaintiffs any remedy by refusing to follow the law.
The plaintiffs clearly have standing to sue the Board
The plaintiffs have traditional standing in seeking declaratory relief by the court. They suffered a palpable injury because they were not allowed an opportunity to give input on the Common Core standards under the Utah Administrative Rulemaking Act (UARA). They also have statutory standing both under the UARA and Utah Code § 53A-1-402.6(1). UARA allows an interested person to request the making, amendment, or repeal of a rule. Utah Code § 53A-1-402.6(1) requires the Board to consult with school boards, school superintendents, teachers, employers, and parents when implementing core standards. Both statutes afford the plaintiffs statutory standing to bring this action, in addition to the declaratory relief law.
The plaintiffs also have public-interest standing in seeking declaratory relief, as they are appropriate parties and the violation of UARA is an issue of significant public importance. The claims raised by the plaintiffs are justiciable. By granting them declaratory relief, the court will settle the issue of whether Common Core standards should be implemented as a rule and subject to the administrative procedure. The plaintiffs can then challenge the standards under UARA as intended by the statute.
The plaintiffs do have a valid claim upon which relief may be granted
The Board argued that since the standards only affect students, the plaintiffs do not have a valid claim and therefore cannot seek judicial relief. But the Common Core standards apply to parents, teachers, school employees, and students—not only to students enrolled in state education institutions as asserted by the Board. Thus, the rulemaking procedures of UARA are applicable to the Common Core standards.
Obviously, the motions themselves contain far more detail than is here presented. Suffice it to say that the Attorney General’s office is avoiding the merits of the plaintiffs’ arguments by repeatedly delaying the procedural hurdles involved in the lawsuit (they had a few things going on with same-sex marriage) and now attempting to quash the lawsuit altogether. The plaintiffs and their attorneys remain quite convinced of the procedural and substantive merits of the case, and eagerly anticipate a favorable judicial review of this motion so that we can move on to the arguments themselves, and force the Board to comply with the law.
The Utah legislature intended for education standards to be vetted and discussed prior to statewide implementation; changing what hundreds of thousands of children are learning about is something that requires public input and awareness. As such, both the rulemaking process and statute itself require public input and involvement—both of which were denied while Common Core was quickly pushed through, despite these standards never being piloted, researched, or proven prior to implementation. Utah children were therefore turned into pedagogical guinea pigs by the Board’s mandate. We seek to hold the Board accountable.
Last week, Sam DuBose was shot in the face and killed by a University of Cincinnati police officer, Ray Tensing, after being pulled over for not having a front license plate on his vehicle. Today, the officer was indicted for murder—a result that would not have happened, were it not for the officer’s body camera.
Officer Tensing’s statement to the reporting police officer affirms that Tensing “began to be dragged by a male black driver who was operating a 1998 Green Honda Accord.” Tensing claims that “he almost was run over by the driver of the Honda Accord and was forced to shoot the driver with his duty weapon.”
Another officer, Phillip Kidd, offered corroborating testimony to the reporting officer, affirming that he “witnessed the Honda Accord drag Officer Tensing, and that he witnessed Officer Tensing [subsequently] fire a single shot.”
Both officers lied.
Libertas Institute announces its latest hire—our new director of development: Katie Hood!
Katie Hood is a communications and public relations professional with administrative and leadership experience across a varied range of industries. Her past positions have involved content branding, organizational training, and corporate marketing. Katie is a “people person” looking to empower others to make a difference, and brings this exciting energy to Libertas’ networking and fundraising efforts.
Katie graduated Summa Cum Laude from Utah Valley University and received Service Scholar honors for completing over 300 hours of university and community leadership and service initiatives.
Katie’s experiences in education, service, and community relations bolster Libertas Institute’s reputation for working towards a free and moral society. A Georgia native, Katie now lives in Provo, Utah.
Curious to know more? Send Katie an email at firstname.lastname@example.org.
Libertas Institute has a fall research internship available for college students or recent graduates. Join our successful organization to help advance the cause of liberty in Utah!
We are in need of policy research assistance to prepare some of the legislative proposals Libertas will be advancing in the 2016 general session beginning in January. See here for an example of recent policies we worked on.
- Research assigned policies spanning a broad spectrum of subjects
- Compile, sort, and analyze data
- Prepare reports and summarize data
- Write articles on assigned topics
- Must be interested in and aware of the political process
- Understanding of, and passion for, liberty
- High attention to detail
- Excellent research and writing skills
- Social media experience
These are unpaid positions, though we will gladly work with your school to provide credit if that is an option. Any necessary expenditures related to assigned work will be reimbursed.
Interns will work in Lehi on a part-time basis, either a morning or afternoon shift. The length of the internship will roughly match the fall semester schedule, though we are flexible to work around the intern’s needs.
Interested students should submit a résumé and two writing samples to email@example.com with “Research internship application” in the subject line.
In 2009, the long-time lawyer for the National Education Association (NEA), Bob Chanin, gave a farewell speech to a crowd of thousands of assembled delegates at the organization’s annual conference. In a moment of startling frankness, Mr. Chanin revealed the core concern and focus of this large and politically powerful education union.
“Despite what some among us would like to believe,” NEA’s effectiveness “is not because of our creative ideas,” he said. “It is not because of the merit of our positions. It is not because we care about children, and it is not because we have a vision of a great public school for every child.” Having made that clear, he moved on to his point:
The following op-ed by our vice president, DJ Schanz, was published this weekend in the Salt Lake Tribune.
By their own admission, many same-sex marriage proponents view the Supreme Court’s recent ruling more as the beginning—and certainly not the end—of a larger legislative and judicial war. This contention has exhausted hundreds of millions of dollars and man hours. Even worse, it has turned neighbors into enemies.
You don’t see such hostility between Mormons and Catholics regarding the form and method of baptism. The former church believes that baptizing infants is a “mockery before God” whereas the latter considers it “an immemorial tradition of the Church.” Each group disagrees with the other, but not to the point of bitterness and public strife.
Obviously, there is no government definition of baptism; one denomination has not been able to impose its doctrinal position on their peers through the force of law. As such, there is no attempt to wrest control of political power to modify and expand that definition to be more inclusive. Each group operates in a “live and let live” fashion, using persuasion to convince others.
Salt Lake City, UT (June 26, 2015) — In response to the U.S. Supreme Court’s opinion this morning, legalizing same-sex marriages throughout the nation, Libertas Institute president Connor Boyack issued the following response:
“Our LGBT friends have good reason to be happy today, but those concerned about our laws and legal structure have great cause for alarm. As Chief Justice Roberts said in his dissent, ‘The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent… Just who do we think we are?’
“Today’s opinion—and let’s be clear, that’s all it is—provides an opportunity for lawmakers to reconsider their long-standing support for government intervention in such an important societal relationship. In the coming months, we will be encouraging elected officials to consider a proposal to repeal government licensure of marriage, allowing churches, notaries public, and others to privately officiate and sanction these unions.
“Despite what some lawyers think, there is no ‘fundamental right’ to a government permission slip. The long-standing violation of the sacred union of marriage—encouraged by those looking to shape society to match their vision—needs to be fixed.”
A similar proposal recently passed the Alabama State Senate 22-3, but the legislature adjourned before it was considered in the House. Libertas Institute is encouraging supporters to sign this petition.
This morning, the U.S. Supreme Court issued its opinion in the King v. Burwell case. At issue were the subsidies for federal health insurance exchanges in states that had not set up their own. In a 6-3 decision upholding the law, the Court ruled that when Congress referenced an exchange “established by the State,” they actually meant “established by the State or the Federal Government.”
Predictably, the dissent—issued by Justice Scalia—pointed out the absurdity of this approach. “Words no longer have meaning,” he wrote, “if an Exchange that is not established by a State is ‘established by the State.'”
But these linguistic gymnastics are part and parcel of the nation’s highest court; calling a “penalty” a tax, as in another Obamacare suit, or claiming that commerce among the several states means any transaction—or potential transaction—by any single individual anywhere, is a drop in the ocean of awful and expansive jurisprudence that has, in its totality, given to Congress a default green light—a presumption of constitutionality for whatever it wants to do.
The degree to which the Court has become disconnected from the founding document it is supposed to interpret and uphold is especially evident in this King opinion, in which the majority opinion says this:
“No bill of attainder, ex post facto law, or law impairing the obligation of contracts shall be passed.”
—Utah Constitution, Article 1, Section 18 (see also Article 1, Section 10 of the U.S. Constitution)
A fundamental principle of law in our country is that of prospective application—that laws should apply to individuals and actions in the future as opposed to retroactively in the past. For this reason, both the United States and Utah Constitutions expressly prohibit “ex post facto” laws—laws that apply after the fact. This principle was so obvious to the Constitution’s framers that some even opposed its inclusion, arguing that it was unnecessary.
Oliver Ellsworth, a delegate from Connecticut, said “there was no lawyer, no civilian who would not say that ex post facto laws were void in themselves” and James Wilson, a delegate from Pennsylvania, was literally embarrassed at the thought of what other nations would think if the Constitution made explicit something so obvious. He said he was “against inserting anything in the Constitution as to ex post facto laws. It will bring reflexions on the Constitution—and proclaim that we are ignorant of the first principles of Legislation, or are constituting a Government which will be so.”
After ratification of the Constitution, Thomas Jefferson remarked that some state constitutions did not see the need to even mention the prohibition on ex post facto laws because it was so obvious:
A new study published in the Lancet medical journal—the most comprehensive study of its kind to date—looks at adolescent marijuana use in states with legalized medical marijuana from 1991 to 2014. Using annual, repeated cross-sectional surveys of over one million teenagers, the study finds that marijuana use does not increase when states legalize medical marijuana.
The authors of the study write that “the risk of marijuana use in states before passing medical marijuana laws did not differ significantly from the risk after medical marijuana laws were passed.” The study finds that states with higher rates of teenage marijuana use before enacting their medical programs into law were unaffected by the new legal framework.
According to the U.S. Department of Health and Human Services, 40% of adolescents nationwide have tried marijuana at one or more times in their life. In Utah, that number is only 20%. As the new study indicates, based on indicators from over 20 other states, this number is unlikely to rise if Utah’s legislature allows a medical cannabis program.
While a slight uptick in teen use would not have justified denying sick Utahns the medical treatment they need, it is nevertheless a welcome development to have findings indicating that this concern—shared by some Utah legislators—is resolved.