Exiting the Common Core Memorandum of Understanding

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.