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Exiting the Common Core Memorandum of Understanding

April 12, 2014

In October 2013, I wrote a post examining the details of the Common Core State Standards (CCSS) memorandum of understanding (MOU), the agreement that state governors and state education superintendents signed with the US Department of Education (USDOE) in which “states” agreed to be “state led” in developing “common standards” according to the criteria set forth in this legal document composed as an appendix to accompany a state’s Race to the Top (RTTT) application in each state’s bid for RTTT money.

So much for “state led.”

The first-round RTTT applications and accompanying appendices for 40 states and DC can be found here. The CCSS MOU is three- to four-pages long and can be found approximately halfway through each appendix file.

What is important to note is that the CCSS MOU includes no provision for exiting CCSS. 

It also includes no wording in which states are bound to CCSS if the original signators no longer hold the positions of governor and state education superintendent.

This second point is important to states wishing to be rid of CCSS. The point in USDOE’s requiring only two signators was to bypass the “messiness” of the legislative process and bind states to CCSS via only two signatures in “top-down” fashion.

Legislators can certainly continue to promote anti-CCSS legislation; however, there are other ways to pressure non-signator governors and state superintendents (and even the original signators) to bow to public pressure and exit CCSS.

This “ease” in the USDOE’s binding states to CCSS via two signatures inadvertently offers states “ease” in exiting.

This is a very important point. I’ll return to it.

For now, allow me to offer a third point regarding language absent from the CCSS MOU:

Since the CCSS MOU fails to include language binding states to CCSS if such states receive RTTT money (no doubt excluded so that USDOE might maintain it is not “forcing” states to accept CCSS in order to receive RTTT money), then even states that received RTTT money are able to exit CCSS and challenge any USDOE pressure to return RTTT money. If CCSS is truly not federally forced, then it will not pursue states choosing to be “state led” right out of CCSS.

For USDOE to pursue states exiting CCSS for some RTTT “breach of contract” only underscores USDOE’s violation of the Elementary and Secondary Education Act (ESEA) of 1965, Subpart Two, Section 9527(c)(1):

(c) PROHIBITION ON REQUIRING FEDERAL APPROVAL OR CERTIFICATION OF STANDARDS-

(1) IN GENERAL- Notwithstanding any other provision of Federal law, no State shall be required to have academic content or student academic achievement standards approved or certified by the Federal Government, in order to receive assistance under this Act. [Emphasis added.]

Back to those two signatures on each state’s CCSS MOU:

If both signators no longer hold the positions of governor and state superintendent, then the MOU cannot bind each state. 

There is no need for legislative action to dispose of CCSS. In such cases, the current governor or state superintendent can formally declare a state’s exit from CCSS. USDOE has no legal recourse, and neither does a non-signator governor nor non-signator superintendent who might push to keep CCSS.

If the current governor or state superintendent fail to admit no binding agreement for CCSS, then agencies can challenge them in court for supporting a contract created by those no longer in office.

Such is the case in New York. Former Governor David Paterson and former Education Commissioner Richard Mills sign the state on for CCSS. Neither is currently in office; so, the CCSS MOU is dead.

US Secretary of Education Arne Duncan can praise current New York Education Commissioner John King all that he likes for sticking by the Core. King’s name is not on the CCSS MOU; so, the situation is ripe for a lawsuit against King for attempting to uphold a dead contract.

In states in which one signator is currently in office, such as Louisiana’s case with Governor Bobby Jindal, both the public and elected officials can pressure Jindal and call his “anti-CCSS ‘green card’ bluff”.

Even if both signators are still currently in office (I learned that this is the case in Idaho), both the public and elected officials can pressure the two signators to write USDOE and declare a reversed, “state led” decision.

Remind Arne Duncan of his words on April 8, 2014, to the House Appropriations Subcommittee:

“I’m just a big proponent of high standards. Whether they’re common or not is secondary,” he told members of the House appropriations subcommittee that works on health, education, and other related issues. [Emphasis added.]

If Duncan refuses to comply, sue USDOE. Yes, it is time-, money-, and energy-consuming, but we need to continue to fight with fervor against this twisting of the democratic process into a federally-enabled, mega-corporate feeding trough for education profiteers.

A final word: If the CCSS MOU is dead, then its testing-consortium appendages, the Smarter Balanced Assessment Consortium (SBAC) and the Partnership for Assessment for College and Careers (PARCC), lose their justification for existing. Thus, states that shed the CCSS MOU have no reason to follow through on SBAC or PARCC.

Challenge the CCSS MOU.

19 Comments
  1. Laura h. Chapman permalink

    This a brilliant and well-developed line of reasoning that can be used by states and districts to drop the CCSS and the associated tests. The USDE memorandum of understanding was illegal from the get-go. You have shown it to be a weak and deeply flawed quasi-legal documentas well. If you ever want yet another fabulous career, you could easily find one in law. Hope that Diane Ravitch and others will help to amplify this post.

    • Thank you, Laura, for you kind words.

      When I decided to return to school for my PhD, I considered law instead but decided that the world already had enough lawyers.🙂

  2. Hi Mercedes,
    I enjoy your comments very much. You call it as you see it and that’s rare! You might enjoy seeing this video. One of the teachers in it was told not to speak out against Common Core
    http://video.foxnews.com/v/3461831177001/common-core-outcry/#sp=show-clips&v=3461831177001
    thank you
    jo ann

  3. When have “we” ever signed a MOU with the federal government for “state led standards” that were copyrighted by NGA and CCSSO??

    Never.

    It’s a new game, Cazayoux. If you don’t like what I write, tough.

  4. Michael permalink

    Would you suggest that CCSS is a violation of Federal Law?

  5. Julie permalink

    Thank you for all your hard work — I love reading your posts….I think Missouri is a place where the governor and education commissioner that signed the MOU are both still in office. Democratic governor Jay Nixon is in some other ways a supporter of public schools (and, for example, not in favor of directly privatizing education, e.g. charters, vouchers, special corporate districts), though in the way of the CCSS with its indirect work privatizing and thereby destroying public schools. And Commissioner of Education Nicastro I think is more or less a privatizer or at least attention-seeker and definitely not a friend of public education. But there is an active group of Missourians opposing CCSS.

  6. So how do we as New Yorkers get us out of Common Core?

  7. Mercedes are you aware that of 2015 states that do not support Common Core and the associated assessments will not receive Title 1 funds?? See “The Blueprint for Reform” Page 11 near the bottom. It clearly brings a new sense of understanding as to why not ONE state has repealed Common Core. If they do they will not receive formula funds. They are lying devils. They tell us we are misinformed but all the while they know we are telling the truth and have sold our children. I say it is time to replace ALL state Governors with a person that will 1. Tell the federal government to take their Title 1 funds and stick them where the sun doesn’t shine. Time to stop sending our money to DC. Time to exercise FULL implementation of states rights. And any Governor that does not comply should be recalled, elected out of office or impeached.

    • Karen, this strongarming is illegal. Organizations need to sue USDOE.

    • Anne Gassel permalink

      Karen, you are incorrect that states will not receive Title I funding if they drop CC. Here is the link to a letter we obtained from Congressman Luetkeyere’s office confirming from the US House Education and Workforce Committee that “the state would not lose any federal money (although there is the possibility of constraints on spending the money) and would not be forced to pay back any grants since they did not receive any directly.” http://www.moagainstcommoncore.com/Title%20I%20Funding.docx

  8. Joseph permalink

    The whole strength and value, then, of human judgment depending on the one property, that it can be set right when it is wrong, reliance can be placed on it only when the means of setting it right are kept constantly at hand.

    John Stuart Mill

    On Liberty

  9. 4/13/14
    I love the post and share it in my community. It’s interesting. I am ready to support the repeal in NY.

  10. Hi Deutsch,

    You may or may not realize this, since it wasn’t mentioned in the post I thought I would bring it up. Not only did admins at the State level sign MOUs – individual districts signed them as well. I have a copy of ours, we were fighting this before we even heard RTTT. The district level MOUs were signed by the superintendent and the school board president.

    In our district both of these individuals are no longer in their posts. So, this goes deeper than just at the State level.

    Thanks!
    Mary Ann

    • Mary Ann, thanks for the info. If districts signed directly with USDOE, same rules apply as for states. If districts signed with state, then one can still go after the state MOU with USDOE. Our district approved an anti CC resolution, but our state is still in.

  11. 34,000 New York children refused to take the ELA state tests. Many more will choose to refuse the math, especially now that principals and educators are speaking up. Watch and spread the video. Parents have a right to refuse!

  12. Ang permalink

    Wow,
    the memo of understanding.
    Golly, look at that.
    Bill Duncan (over on DR’s blog) just informed everyone that is is an urban legend and no one had ever seen it.
    Funny.
    Can’t quite put my finger on why he would say such a thing.😉
    Great work Mercedes!

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