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Charles McElwee: Common core repeal would be impulsive, political, unconstitutional

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Charles McElwee: Common core repeal would be impulsive, political, unconstitutional
By Charles McElwee

No bill relating to public education received as much attention in the 2015 regular session of the Legislature as did H.B. 2934.

The Bill directed the West Virginia Board of Education to repeal its Common Core Standards and subsequent Next Generation Content Standards.

Fortunately for our public-school students, the Bill died in the Senate.

The Bill’s supporters were impulsive in intent, politically motivated in objectives, and oblivious to the repeal’s likely unconstitutionality.

As too often is the case in public-school legislation, H.B. 2934 made students the pawns of legislative members to advance their volatile and mercurial political agendas.

West Virginia’s recent Education Efficiency Audit aptly observed: the State needs a more student-centered education that focuses on students and their needs, as opposed to a system that has traditionally satisfied a range of constituencies, within and without the education system, all of them adults.

The adult constituency that sought repeal of the Common Core Standards is evident in the Bill’s wording: persons politically inclined to believe that the federal government engaged in “a highly inappropriate usurpation of state sovereignty over public education” by using funding “to coerce” the states into adopting the Standards.

Clearly, H.B. 2934 was intended to appeal to an adult political constituency: fervent “states’ righters.” The losers: teachers and students, who, in the words of the Bill, have to “continually readjust[] to frequently changing standards,” a change the Bill would have required yet again.

The states’ righters would have propped up their case had they cited but one instance of a Common Core Standard that is not “knowledge and [a] skill that students should know and be able to perform,” quoting an earlier legislative enactment. They did not. Pretext argument was used instead.

The Bill’s lead sponsor urged that “education standards [should] reflect our West Virginia values,” that the State should have higher and more rigorous standards “that work better for West Virginia” and that “raise the bar for our students.”

How could “West Virginia values” modify the “knowledge and skills that students [the world over] should know and be able to perform” in an international economy? The quotations are pleasing rhetoric for some but lacking in meaningful concerns.

In fact, the Common Core Standards were not developed by the federal government but were the product of a long and painstaking effort of states working with numerous experts, led by the National Governors Association Center for Best Practices and the Council for Chief State School Officers. The Common Core Standards were developed from the best state standards.

Surely, West Virginia acting alone could not be expected to improve on what a large number of states collectively accomplished.

The Legislature previously recognized that “standards,” which set forth “the knowledge and skills that students should know and be able to perform,” are the first of four primary elements for improving education.

Significantly, H.B. 2934 omited any reference to these relevant provisions.

Even more egregious was the Legislature’s refusal to acknowledge in H.B. 2934 its own recognition that it is the West Virginia Board of Education “as the constitutional body charged with the general supervision of schools as provided by general law,” which “has the authority and responsibility to establish the standards ....”

At least five decisions of the Supreme Court of Appeals of West Virginia have acknowledged that the Board of Education has the constitutional authority and responsibility to establish standards of the knowledge and skills that students should know and be able to perform, and that the Legislature is powerless to modify or nullify standards which the Board has adopted.

The Court has repeatedly stated that the general supervision of the State’s public schools conferred upon the Board by Art. XII, § 2 of the State Constitution vests in the Board “the determination of the educational policies of the public schools of the State”; nullifies any statutory provision that interferes with the Board’s actions relating to such policies; and makes Board actions relating to such policies beyond the control of the courts unless unreasonable or arbitrary.

Most certainly the Board’s establishment of Common Core and other “standards which set forth the knowledge and skills that students should know and be able to perform” constitute “educational policies” which are the province of the Board alone.

Indeed, the Court has stated that unlike other executive branch administrative agencies of the State, the Board “enjoys a special standing” derived from the State Constitution. That “special standing” makes the Board co-equal with the legislative, executive and judicial departments of State government so that those branches of State government are precluded from exercising the Board’s powers under the separation-of-powers provisions of Art. V, § 1 of the State Constitution.

More telling, the Court has recognized that Board rules and policies for public schools are “supervisory responsibilit[ies]” that “state legislators themselves cannot possibly assume”; and that “[d]ecisions that pertain to education must be faced by those who possess expertise in the educational area,” such as the West Virginia Board of Education, in collaboration with the State Superintendent of Schools, who is the Chief School Officer of the State, and the State Department of Education; and that “[t]hese issues are critical to the progress of schools in this state, and, ultimately, the welfare of its citizens.”

The Legislature has, over the years of educational policy -- making, created an educational morass set forth in some 600 pages of non-sequential, unfathomable legislative enactments; imposed an untold number of mandates upon the Board; created a maze of educational management and administrative offices; employed indecipherable language; used excessively pretentious language lacking meaning or substance; and avoided bedrock issues, such as how students best learn, teacher qualifications, and optimal teaching techniques that comport with best learning practices.

It is high time for the 134-member Legislature to get out of the business of establishing educational and other supervisory policies for the State’s public-school system, which it has historically bungled, and recognize, as the Court has, that policy-making in these areas belongs to the Board.

It should be obvious that a school board of 134 members would be incapable of functioning with any semblance of efficiency, effectiveness, and accountability, especially in governing and managing the State’s largest and most important enterprise -- the public-school system.

If the Legislature’s role in establishing educational policies is continued, forget about improving academic achievement and accept the fact that our public schools will be no more than mediocre in the years to come.

Charles McElwee is a Charleston lawyer with the firm Robinson & McElwee PLLC.