Thursday, October 15, 2015 | No comments

Common Core Lawsuit’s First Legal Hurdle

By Josh Daniels

The district court heard the Utah State Board of Education’s motion to dismiss our Common Core lawsuit on Tuesday. The hearing is an early procedural tactic by the state to terminate the lawsuit by arguing that the law does not support the suit. Interestingly, the state’s arguments ignored the substantive complaint against the adoption of Common Core and instead focused on purely procedural matters. While procedural matters are important and are frequently deal breakers in litigation, this attempt shows that the Board is not interested in rectifying the disservice it did to Utahns when it refused to follow the process set forth in law to consult parents, teachers, administrators, and local school boards in adopting new curriculum standards.

One argument made by the state challenged the standing of the parents and teachers to sue by reasoning that the adoption of curriculum standards was not an issue of significant public interest implying that parents and teachers have no interest or right in determining the curriculum standards used to teach their children and therefore should have no legal remedy. This is despite the fact that state law specifically states that in “establishing minimum standards related to curriculum and instruction” the Board shall consult with local school boards, teachers, parents, and others.

Another argument the state made was that the two-year statute of limitations to sue had run out because the standards were “in effect” well before they were actually in effect in schools. While the first full school year for which the standards are being used is this year, the Board’s position is that parents and teachers had to act back in 2012 or 2013 to challenge the standards. This shows the inherent problems with large controversial administrative changes that are made, but not fully implemented, until years later—it potentially leaves harmed Utahns without judicial remedy.

Perhaps the most deceptive argument the Board made was that the statute envisions a two part process of adoption of the standards and implementation of standards and that the requirement to consult parents and teachers only applied to their implementation. This is not supported by the statutory language as the word adopt didn’t even exist in statute until 2014—four years after the Board signed up to impose Common Core in every public school in Utah. The statutory phrase in effect in 2010 was “establishing minimum standards” and seems clearly intended for the Board to consult with parents and teachers as a part of establishing/adopting the standards. The creative interpretation of this provision by the state aims to undermine this intent.

The judge asked for some additional briefs on a few items and said she would issue a ruling on the state’s motion in court on November 3rd.

About the Author

Josh Daniels is a policy advisor for the Libertas Institute. He graduated with a B.A. in Political Science from Brigham Young University and with a J.D. from the University of Houston Law Center. Previously, he worked for three years as an aide to US Congressman Pete Olson and served for eight years in the United States Marine Corps.


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