Common Core: Fred Sauer Sues Governor Nixon

Tuesday, September 16, 2014
Contact: (314) 854-1305

Common Core: Fred Sauer Sues Governor Nixon

On September 12, 2014, the lawsuit Sauer v. Nixon was filed in Cole County Circuit Court. The lawsuit challenges payment of $4.3 million of Missouri taxpayer funds to the Smarter Balanced Assessment Consortium, an entity implementing tests aligned to the Common Core State Standards (“Common Core”). Among other claims, the suit alleges that the Smarter Balanced Assessment Consortium is an unconstitutional Interstate Compact, created without Congress’s consent.

How many of you realize that the largest component of the Missouri State Government budget is for education? Using the proposed FY2015 Governor’s Operating Budget, education accounts for 47% of it. The two components are Elementary and Secondary Education at $3.349 billion and Higher Education at $0.979 billion. The total is $4.238 billion. If Missouri spends Real Estate Taxes at a level equal to the national average, this would account for an additional $3.92 billion.  This gives a grand total for Missouri of $7.168 billion in education expenses.

Unbeknown to most of us, Governor Nixon has given effective control over all this money to the Federal Department of Education, Achieve, and other Common Core-related entities. He did this in a series of machinations wherein he avoided all public accountability to “we the people” who pay for the education by these state taxes and local real estate property taxes. Based on the amount of total money, $7.168 billion “we the people” provide, it was his most basic responsibility to make a complete disclosure and representation to all the citizens of Missouri before surrendering effective control over all this money to the Federal Department of Education.

Have any of you ever heard of Achieve?
From the Achieve website:

Our Board of Directors
At the 1996 National Education Summit a bipartisan group of governors and corporate leaders decided to create and lead an organization dedicated to supporting standards-based education reform efforts across the states. To do so, they formed Achieve as an independent, bi-partisan, non-profit education reform organization.
Craig R. Barrett
Former CEO/Chairman of the Board
Intel Corporation
Board Members
Mark B. Grier
Vice Chairman
Prudential Financial, Inc.
Governor Bill Haslam
State of Tennessee
Governor Jay Nixon
State of Missouri
Governor Deval Patrick
Commonwealth of Massachusetts[1]
Please note that there are only 4 other people besides Jay Nixon as directors! Imagine, just five directors.

One of the greatest regulatory frauds and power grabs committed against the people of the United States of America has been the evolving federal requirement as promulgated by the Federal Department of Education that all states must adopt Common Core Education Standards.

Governor Jay Nixon has unilaterally cooperated with the Federal Government, the Federal Department of education, and other sponsored entities in every way, without approval of the legislature or voters. In so doing he has ignored and violated specific federal laws and regulations that preserve and protect state authority over educational policy at all levels. As stated in the lawsuit, Sauer v. Nixon:

24.       In 1965, Congress enacted the General Education Provisions Act of 1965, 20 U.S.C. § § 1221 et seq., which provides:
No provision of any applicable program shall be construed to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over the curriculum, program of instruction, administration, or personnel of any educational institution, school, or school system, or over the selection of library resources, textbooks, or other printed or published instructional materials by any educational institution or school system.
20 U.S.C. § 1232a. This restriction was later made applicable to all programs administered by the federal Department of Education. 20 U.S.C. § 1221(c)(1).
        25. Similarly, the Department of Education Organization Act of 1979, 20 U.S.C. § § 3401 et seq., which established the federal Department of Education, provides:
No provision of a program administered by the Secretary or by any other officer of the Department shall be construed to authorize the Secretary or any such officer to exercise any direction, supervision, or control over the curriculum, program of instruction, administration, or personnel of any educational institution, school, or school system, over any accrediting agency or association, or over the selection or content of library resources, textbooks, or other instructional materials by any educational institution or school system, except to the extent authorized by law.
20 U.S.C. § 3403(b).
       26.       The Department of Education Organization Act reflects Congress’s clear intent that States and local governments retain control over education policy and decision making:
It is the intention of the Congress in the establishment of the Department to protect the rights of State and local governments and public and private educational institutions in the areas of educational policies and administration of programs and to strengthen and improve the control of such governments and institutions over their own educational programs and policies. The establishment of the Department of Education shall not increase the authority of the Federal Government over education or diminish the responsibility for education which is reserved to the States and the local school systems and other instrumentalities of the States.
20 U.S.C. § 3403(a).
       27. Echoing these principles, the Elementary and Secondary Education Act of 1965 (“ESEA”), as amended by the No Child Left Behind Act of 2001 (“NCLB”), 20 U.S.C. § § 6301 et seq., provides that “[n]othing in this Act shall be construed to authorize an officer or employee of the Federal Government to mandate, direct, or control a State, local education agency, or school’s curriculum, program of instruction, or allocation of State or local resources.”
20 U.S.C. § 7907(a).
28. Moreover, the ESEA prohibits the Department of Education from using funds under the statute “to endorse, approve, or sanction any curriculum designed to be used in an elementary school or secondary school.” 20 U.S.C. § 7907(b).
        29. The ESEA further provides that “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.” 20 U.S.C. § 7907(c)(1).
        30. In enacting the ESEA, Congress contemplated that decisions regarding “the specific types of programs or projects that will be required in school districts” would be “left to the discretion and judgment of the local public educational agencies.” H.R. Rep. No. 143, 89th Congress, 1st Session, 5 (1965).
        32. In 2009, the National Governor’s Association and the Council of Chief State School Officers announced an initiative to develop the Common Core State Standards (“Common Core”).
37.       On February 17, 2009, the U.S. Congress passed the American Recovery and Reinvestment Act of 2009 (“ARRA”). Sections 14005 and 14006 of the ARRA provided for federal grant funding to the states related to education. Section 14005(d)(4) provided for grant funding relating to “standards and assessments,” and provided that recipient states would “take steps to improve State academic content standards and student academic achievement standards….” Section 14006 provided for remaining funds to be used as state incentive grants in FY 2010 for states “that have made significant progress in meeting the objectives of paragraphs (2), (3), (4), and (5) of section 14005(d).” 123 Stat. 115, 283 (2009). ARRA did not mention or authorize common state educational standards, or “consortia” of states.
38.       On or about June 25, 2009, without authorization by the Missouri legislature or the requisite signature of the highest state education official, Governor Nixon unilaterally signed a “Memorandum of Agreement” with the National Governors Association that purported to commit Missouri to adopting a “common core of state standards (common core) in English language arts and mathematics for grades K-12.”
39.       On or about November 18, 2009, the U.S. Department of Education issued an invitation to the States to apply for Race to the Top (“RTTT”) grant funding, pursuant to the ARRA. See 74 Fed. Reg. 59836 (Nov. 18, 2009). This invitation conditioned RTTT grant funding on, in part, “[t]he extent to which the State has demonstrated its commitment to adopting a common set of high-quality standards.”
40.       To satisfy key criteria for grant funding under RTTT, a state thus had to commit to adopting a “common set of K-12 standards,” i.e. Common Core.
41.       On or about January 18, 2010, Governor Nixon and Commissioner Nicastro signed an Application for Initial Funding for RTTT funds. In this application, Governor Nixon and Commissioner Nicastro purported to assert “Missouri’s commitment to Common Core Standards development and adoption.” Even though the Common Core Standards had yet to be finalized, the application definitively stated that “Missouri will begin transitioning to the Common Core K-12 Standards and Career Ready/College Ready Standards upon their adoption.” On information and belief, this application was submitted without the authorization of the Missouri legislature.
44.       On or about April 14, 2010, Commissioner Nicastro signed a “Document of Commitment” to the Smarter Balanced Assessment Consortium (“SBAC”). See Document of Commitment (attached as Exhibit 2, and incorporated by reference herein). This document purported to commit Missouri to serve as a “Governing State” in SBAC.
45.       On or about May 20, 2010, Commissioner Nicastro signed a “Memorandum of Understanding” with SBAC. See Memorandum of Understanding (attached as Exhibit 3, and incorporated by reference herein). This Memorandum of Understanding also purported to commit Missouri to serve as a “Governing State” in the SBAC consortium.
46.       On or about May 25, 2010, Governor Nixon also signed the same Memorandum of Understanding with the SBAC consortium. See id. On information and belief, the Missouri legislature never authorized this Memorandum of Understanding.
47.       By signing the Memorandum of Understanding, Governor Nixon and Commissioner Nicastro purportedly committed Missouri to “[a]dopt the Common Core Standards.
48.       The Memorandum of Understanding purported to commit Missouri to:
(a) “Adopt common achievement standards no later than the 2014-2015 school year”;
(b)      “Fully implement statewide the Consortium summative assessment in grades 3-8 and high school for both mathematics and English language arts no later than the 2014-2015 school year”;
(c) “Adhere to the governance as outlined in [the Memorandum of Understanding]”;
(d)  “Agree to support the decisions of the Consortium”;
(e)  “Agree to follow agreed-upon timelines”;
(f)  “Be willing to participate in the decision-making process and, if a Governing State, final decision”; and
(g) “Identify and implement a plan to address barriers in State law, statute, regulation, or policy to implementing the proposed assessment system and to addressing any such barriers prior to full implementation of the summative assessment components of the system.”
Id. At 3.
56.       From its inception, Governor Nixon and Commissioner Nicastro’s purported commitment of Missouri to Common Core was in violation of Missouri law. Missouri law in effect in 2009 and 2010 provided that the state Board of Education had authority to adopt “no more than seventy-five academic performance standards.”
58.       SBAC’s grant application explained that SBAC would develop a uniform “multi-state assessment system based on the Common Core State Standards.” The application further stated that “the role of [SBAC] is to influence and support the development and implementation of learning and assessment systems to radically reshape the education systems in participating States . . . .” (Emphasis added.)[2]

In signing all these documents, Jay Nixon has intentionally and effectively seized over $7.65 billion of State and local taxes and turned them over to the illegal control of the Federal Department of Education. Local control of schools has been a permanent principle of education since the days of its founder Horace Mann. All this is proven by the federal statutes forbidding the federal government and its regulators from doing exactly what they have done. This was a completely illegal takeover of the expenditure authority of the general assembly because the money is going to organizations shielded from public disclosure laws.

Jay Nixon’s approval of the regulator fraud against “we the people” is at a minimum a breach of his fiduciary responsibility to the citizens of Missouri. What governor would ever attempt to impose such a dramatic and fundamental change of the control of the state financed public education without a complete and thorough public disclosure and debate with the citizens of the state?

[1] Board of Directors
[2] Sauer vs. Nixon

Leave a Reply

Your email address will not be published. Required fields are marked *