Libertas Institute announces its latest hire—our new director of communications: Nichelle Aiden!
Nichelle brings a combination of acting and writing experience to the table and will help transform Libertas’ successful policies into engaging and impactful stories that make a meaningful difference to each Utahn. She will, in short, be our organization’s chief storyteller.
Speaking of her new position, Nichelle said, “I am thrilled to join the team at Libertas Institute. I love telling real, beautiful stories and connecting with people—that is exactly why I act and write. I’m excited to bring my talents to the cause of liberty in Utah; freedom is something we all relate to and desire, and yet so many of us don’t understand what it really means. I believe Libertas has powerful messages and stories to share, and I’m beyond excited to help tell them in ways that resonate on a deep level with each Utahn.”
Nichelle studied journalism at Utah Valley University and has been writing stories since she was a kid. She has been working as an actress in both Utah and Los Angeles for the last seven years and is currently preparing to write and direct her first short film. In her spare time she studies film, writes, rock climbs, enjoys the outdoors, and loves spending time with her nieces and nephews.
Curious to know more? Send Nichelle an email at firstname.lastname@example.org.
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.
Last year, Libertas Institute proposed legislation to bring transparency to law enforcement, specifically to high-risk warrants and SWAT team deployments. The first annual report—a requirement of the legislation—was published today by the Commission on Criminal and Juvenile Justice.
The report includes information provided by law enforcement agencies around the state for the year 2014. Sadly, and in violation of the law, only 75% of agencies contacted provided information for the report.
Here are the key findings from the report:
- There were 559 unique incidents in 2014, defined as a search warrant served using forcible entry (no knock or knock and announce) as well as all deployments of tactical teams.
- Warrants were utilized in 96% of all reported incidents, with forcible entry being
employed 61% of the time.
- 83% of forcible entry warrants dealt with drug crimes.
- Weapons were only present in 0.5% of the incidents reported.
- Less than 1% of incidents resulted in an officer discharging his or her firearm.
- Three civilians were injured and three were killed in 2014, with zero law enforcement fatalities/injuries.
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.
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.
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:
“[Medicaid expansion] you came into my heart
With a burning love
That stings like a bee”
-“Where Did Our Love Go,” The Supremes, 1964
The following is in response to a recent post that appeared on Utah Poverty News, entitled: “On the issue of Medicaid expansion, like so many things, we can’t go back to 1964.”
We appreciate the opportunity to respond to recent points and to clarify why Medicaid expansion is so worrisome a path for Utah to follow. In a humorous critique of our recent letter opposing Medicaid expansion, proponents of Medicaid expansion imply that our opposition is misplaced and that we would have to go back in time to 1964 when Medicaid was first started to fix our frustrations. This is not so. Medicaid expansion on its face represents significant federal micromanagement in state health care policy and has proved disastrous for many states. The line from The Supremes’ 1964 hit “Where did our love go,” referenced above, describes the problems already being felt by Medicaid expansion in some states. The promises from Washington were rosy and “tender” as they penetrated the “burning” hearts of state lawmakers around the country, but the result of implementation has, “like a bee,” stung state budgets and the truly needy.
At least 7 of the 29 expansion states have experienced cost overruns as enrollment projections were vastly under-predicted. More troubling is the way in which expansion has left state programs strapped for cash and unable to provide critical care to those most medically needy. Moreover, as more enrollees seek care from a limited pool of doctors that accept Medicaid, needy patients will find themselves further and further down the waiting list for actual care. While the temptations of rosy feelings of love for a program that promised so much for so little led states to expand, the fiscal and economic realities for these states have ruled supreme and couldn’t “get us” or “make us love” it in the end.
The benignly-named “Campaign for Accountability” has made a few waves this week for filing complaints against Representative Ken Ivory for “engaging in an illegal scheme to defraud local government officials out of taxpayer funds.”
Now that’s quite a lede.
It hinges, however, on this: the organization “alleges Rep. Ivory has solicited funds from local officials, falsely claiming the federal government can be forced to transfer public lands to the states.”
Clearly, Ivory’s organization is largely funded by taxpayers, with county governments paying large sums of money to support an effort their elected leaders wish to see succeed. This is not in dispute. So this issue really hinges only on the final part, namely, Ivory’s purportedly “false claims” that his effort to transfer public lands to state control is realistically possible.
Each summer, local media outlets produce stories about the level of per pupil spending in Utah, pointing out that Utah comes in last place across the country in per-pupil funding. These stories aren’t really news since Utah has been this way for years; perhaps the statistics are meant to scare Utahns into demanding that legislators allocate more of the taxation pie to the government education bureaucracy. If only it were that simple.
Utah is subject to some unique factors that yield relatively lower levels of available funds for education as compared to other states. Most notable are the larger families with more children. Other issues include the level of federal land ownership and lower income levels per pupil from which to draw. While the public education lobby, like any government bureaucracy, is diligent in advocating for its own growth, the issues underlying school finance in Utah are not remedied by simply throwing more tax dollars at them.
Few headlines about education spending point out the state’s efficiency when you compare academic achievement per dollar spent. This blind focus on total dollars as a supposedly important metric ignores the most central issue for government schools: are the children learning?
This morning, KSL alerted the public to an “indepth” segment they would be airing about Common Core in Utah:
— KSL NewsRadio (@kslnewsradio) May 26, 2015
The two minute segment (the length of which immediately suggests it’s not “in depth”) contains no analysis from KSL reporters or hosts. Rather, it features a series of audio clips from Rich Kendall, co-chair of a panel created by the Governor to review—and critics say, rubber stamp—the core standards he strongly supports. Kendall is heard discussing the results of an analysis done on the standards, including their quality and legality.
Here’s the audio:
You might believe that an in depth look into the issue would address criticisms, at least in an attempt to rebut them. However, this repurposed press release did not so much as mention any of the criticisms or concerns.
Let’s take just one of them to show how KSL’s “indepth” was anything but. In the review mentioned above, the Attorney General’s office attempted to address an allegation made in our lawsuit (which is pending a hearing in a few months)—namely, that the State Board of Education had not consulted with various constituencies around the state as they were statutorily required to do. Here is the relevant portion of the report: