State school board seeks Common Core lawsuit dismissal
By Samuel Speciale, The Charleston Gazette-Mail
In a motion to dismiss a lawsuit against the West Virginia Board of Education, attorneys representing the state’s chief school policymakers say one Republican’s attempts to shutter the use of Common Core standards is nothing more than a political campaign.
The Charleston-based law firm Bailey and Glasser is asking the state Supreme Court of Appeals to dismiss a lawsuit filed by Delegate Michael Folk, R-Berkeley, who alleges the school board’s use of Common Core, a set of math and English standards adopted by 46 states, violates state law and the U.S. Constitution.
The motion calls for dismissal because Folk did not notify the school board or Department of Education officials he would be suing them. State code requires a complaining party to contact a state agency’s chief officer at least 30 days before filing a suit. It also states the petition presents a policy argument the court cannot and should not take up, and that Folk ignores the school board’s constitutional authority to enact education policy free from legislative interference.
But Folk, a member of the Legislature’s Liberty Caucus, says the board using the standards, which in West Virginia are called the Next Generation Content Standards and Objectives, has entered the state into an illegal interstate compact. Any agreement between two or more states must first be approved by Congress.
Folk filed a similar lawsuit earlier this year in Berkeley County Circuit Court, in which he named Gov. Earl Ray Tomblin and state Superintendent Michael Martirano, among others, as defendants. That lawsuit was deemed “procedurally deficient and substantively ill-conceived” by one of Tomblin’s attorneys.
Folk voluntarily withdrew that complaint in June before filing the second at the end of July.
In his lawsuits, Folk also claims the school board’s adoption and use of Common Core and its aligned student assessments has “usurped the separation of powers and authority of the West Virginia Legislature,” the motion to dismiss says.
“Nonetheless, any alleged clash between the board’s implementation of the Common Core and the Legislature’s will is only wishful thinking by Delegate Folk,” the motion goes on to say. “This petition does not present a conflict between the board and the Legislature — it presents a conflict between the board and a single legislator.”
While the Republican-controlled Legislature, as a whole, denied efforts to repeal the standards during the 2015 session, several lawmakers have openly opposed Common Core. Folk is the only one to initiate legal action against the school board.
Since the session’s end, when lawmakers failed to pass an amended bill requiring the state Department of Education to study the standards, several Republicans have signaled their intent to continue repeal efforts in 2016.
Senate President Bill Cole, who did not take a strong stance for or against the standards during the session, openly criticized the standards last month, saying they have been a failure and that the state must change course if it wants to improve student achievement.
Earlier this month, Republicans in the House of Delegates said they would continue pushing for repeal regardless of any action taken by the state Department of Education during a comprehensive review.
And on Monday, state Sen. Dave Sypolt, R-Preston, who chairs the Senate Education Committee, said repealing the standards would once again be a topic of discussion during the 2016 session, though he wants to see what recommendations come out of the department’s review.
Common Core is a set of grade-level expectations in math and English that makes sure public school students across the country get the same basic education.