To Utah Lawyer-Legislators:

Executive Summary of the attached paper entitled:

UTAH’S PARENTS DENIED DUE DILIGENCE AND DUE PROCESS: STATE SCHOOL BOARD APPROVES FEDERAL COMMON CORE STANDARDS AND ASSESSMENTS

By Norman H. Jackson, Judge, Utah Court of Appeals, Retired. – January 28, 2013

1. The Utah State Board of Education adopted Federal Common Core Education Standards in 2010 without giving notice to Utah’s citizens or their Legislature.
2. The Board signed on to Common Core to secure Federal Race-To-The-Top funding. Funding was denied. But, Utah remains locked into the Federal mandates.
3. The Board breached its fiduciary duty to the public by failing to do Due Diligence before acting. The action constituted a denial of citizen’s rights to Due Process.
4. Mitt Romney said Common Core is a mistake because the time may come when the Federal Government has an agenda it wants to promote. That time has arrived.
5. Obama’s “Vision 2020 Roadmap” outlines the agenda:
   1. Control education
   2. Compel the States into resource distribution
   3. To “direct remedy” any failure to comply

UTAH’S PARENTS DENIED DUE DILIGENCE AND DUE PROCESS: STATE SCHOOL BOARD ADOPTS FEDERAL EDUCATION COMMON CORE STANDARDS AND ASSESSMENTS

By Norman H. Jackson, Judge, Utah Court of Appeals, Retired PAPER – January 28, 2013

Utah’s State Board of Education adopted the Federal Common Core State Standards Initiative before they, or anyone else knew, what the Standards would be. The Federal curriculum, assessments and other materials had not been written and some are still being drafted. We, and our legislators, had no notice of this action, and have no voice in the ongoing production of Common Core. This procedure has usurped basic education policy and content decisions from parents and our elected representatives. The National takeover rolls on despite the fact that most conservative legislators polled at the 2012 Utah State Convention voiced opposition to Common Core’s federal mandates. Further, these mandates are contrary to the Tenth Amendment of the U. S. Constitution which reserves control over education to the states and the people.

Here is the factual background and timeline for the creation and progress of Common Core.  Education “reformers” have worked for decades to impose national education standards.  The current phase began during the 2008 Presidential election when it was introduced as uniform “American Standards”.  As the Obama administration came into power, their vision for nationalizing education was labeled “Benchmarking For Success”.  To avoid the scrutiny of the democratic process, they used the Stimulus Bill to distribute an enormous pot of money to the U. S. Dept. of Education. And this taxpayer money is being used to shape state and local education without Congressional oversight.

In March 2009, the Department announced a two-part “Race-To-The-Top” competition for states to receive Common Core education funding. States could not get any money unless they signed contracts to adopt the Federal Standards. In March 2010, the “first official public draft” of the Standards (Math and English only) was released.  A final draft was released in June, and our State Board of Education immediately applied for funding and adopted Common Core.  Education Week reported Rutgers professor Joseph Rosenstein’s observation that: “Deciding so quickly … was irresponsible”.  Moreover, our School Board’s Application was not deemed meritorious. Funding was denied. But, Common Core mandates remain.

These facts demonstrate that we the people, and our children, were denied Due Diligence. Due Diligence is “such diligence as a reasonable person under the same circumstances would use.” It is “used most often in connection with the performance of a professional or fiduciary duty.”  It was not reasonable under these circumstances for the Board to act without giving notice to its constituents and providing an opportunity to respond. As fiduciaries, the Board had the duty to act in behalf of the public with care, candor and loyalty in fulfilling its obligations. I concur with Professor Rosenstein and conclude that the Board’s actions constitute a breach of their fiduciary duty to do “Due Diligence” in our behalf.

Further, these facts demonstrate that Utah citizens were denied Due Process. The boundaries of Due Process are not fixed. Fundamental to procedural due process is adequate notice prior to the government’s deprivation of one’s life, liberty, or property, and an opportunity to be heard and defend one’s rights. Substantive due process is a limit on the government’s power to affect the above rights. It is a safeguard against government action that is unfair, irrational or arbitrary in advancing a government interest.

The Federal mandates of Common Core dwarf No Child Left Behind mandates. They have the potential to be like Medicaid and ObamaCare with immense un-vetted and unfunded costs to taxpayers.  States and their citizens have the Constitutional right to local control. But, the Government requires that Common Core be fully implemented by 2014. Moreover, recent Federal revisions to the Family Education Rights and Privacy Act (FERPA) render student and family data – educational, health and otherwise – collectible by the Federal Government through the P-20W data systems they paid States to create. The State School Board’s denial of due process to citizens has made this possible.

I concur with Mitt Romney’s recent evaluation of Common Core: “I don’t subscribe to the idea of the Federal Government trying to push a Common Core on various states. It’s one thing to put out as a model and let people adopt it as they will, but to financially reward states based upon accepting the Federal Government’s idea of a curriculum, I think, is a mistake. And the reason I say that is that there may come a time when the Government has an agenda that it wants to promote”.

Obama’s “2020 Vision Roadmap” for America’s schools was co-written by his former education advisor, Linda Darling-Hammond. Darling-Hammond is now in charge of content specifications for half the country’s testing under Common Core. Yet, she attacks the use of standardized tests! In Nation Magazine, she compares America’s education system with South African apartheid and proposes that poverty requires the government to guarantee “housing, healthcare, and basic income security” to all. Then she praises nations that centrally control their schools.

At the end of her article, she touts Obama’s grand “2020 Vision Roadmap” (which she helped write) stating: “The Federal government should compel states to review inter-  and intra- school resource distribution using established indicators. States that fail to comply would be subject to withdrawal of Federal funds, and the Federal Government would have the right to the direct remedy to correct the problem.”

The citizens of Utah and the United States are in for some spectacular surprises, including federally controlled education and redistribution of State and school district resources during Obama’s second term. I urge Utah’s lawyer legislators to evaluate the State Board’s denial of due diligence and due process to Utah citizens, and to protect taxpayers and students from Obama’s Education policies to ­be fully implemented by 2014.