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From: Todd Weiler
To: Rep. Perry, L.,
Subject: Common Core
Date: 2013-04-17T14:29:40Z
I have had a lot of people contacting me with concerns regarding Common Core. I'm sure you have as well. I had and still have a lot of questions and concerns.

I wanted to share my revised blog post with you -- and you are welcome to use it liberally for your own purposes. 

There is a lot of fear and hysteria being spread right now, and my goal has been to concentrate on the facts. I attended an anti-cooking-core event last night and they presented issues regarding FERPA and the Statewide Longitudinal Data System as if they were all part of Common Core -- but they're separate (but may overlap). 

Rep. Anderegg and others are looking to run legislation next year.  I am still trying to figure out what, if anything, the Legislature can or should do. 

My biggest concern is with the way Utah obtained its waiver from NCLB and with future assessments effectively dictating what curriculum will be taught in Utah schools. It also appears that Utah's acceptance of stimulus money for education (ARRA) has linked us in to a federal student data sharing initiative. 

These are the facts I have been able to nail down so far:

What is common core?

The Common Core State Standards(Common Core) are a set of math and English language arts curriculum standards adopted by 45 states. The Common Core was developed by an effort known as the Common Core State Standards Initiative, coordinated by the National Governors Association for Best Practices and the Council of Chief State School Officers. Educators, administrators, researchers, parents, community groups, and private companies all reviewed the standards and provided feedback during the process. Included within the common core are college-and-career-readiness standards, which address what students are expected to learn when they have graduated from high school, and grade level standards for kindergarten through grade 12, which address expectations for elementary through high school. The State School Board adopted the Common Core as Utah's core standards for mathematics and English/language arts in August 2010.

Utah professors in both Math and English at local institutions of higher education have endorsed the new core standards. Seehttp://www.schools.utah.gov/core/Utah-Core-Standards/CommonCoreResourceGuide.aspx

How did we get here?

In 2008, the National Governors Association and the Council of Chief State School Officers began a push for common standards for English language arts and mathematics in cooperation with interested states. In May 2009, Governor Jon Huntsman and Superintendent Patti Harrington signed a Memorandum of Agreement to participate in the development of the Common Core (Utah's Common Core MOA). Utah's Common Core MOA does not require nor commit Utah to adopting the Common Core. Participation in the Common Core States Standards Initiative (the Common Core Initiative) was “voluntary for states.” The purpose of the MOA was to set up a process for the development of the Common Core Initiative and commit states to “the process and structure as described” in the MOA. Utah’s Common Core MOA does not commit Utah to maintaining the Common Core.

In May 2010, Governor Gary Herbert signed a Memorandum of Understanding (MOU) for Utah to join the SMARTER Balanced Assessment Consortium (SBAC), a group of states working to develop computer adaptive assessments aligned with Common Core. SBAC has received a grant of $160 million from the federal government through the “Race to the Top” (RTTT) Fund along with a supplemental award of $15.9 million to develop assessments and associated materials. (Utah sent a letter withdrawing from the SBAC in August 2102, issued its own RFP, and awarded a contract to AIR -- which is also assisting other states in developing their computer adaptive tests.)

In the MOU, Utah agreed to adopt “a common set” of college and career standards and “common achievement standards”. This is what we now call "Common Core."

Utah has had its own standards in place since 1984, and has revised them every 5-7 years. Prior to the 2009 agreement to use Common Core, Utah individuals who were elected or were overseen by elected officials created those standards. So the teachers and parents, etc. had some avenue if they wanted it changed.

Even though the legislature did not create the standards, there have been instances where they made firm requests that the standards be adjusted and the state school board considered and complied.

Contrary to what many have been told, Utah has not received any federal dollars to adopt or implement these standards. But the way we accepted our NCLB waiver arguably requires that we keep them -- but our basis for that can be changed.

The minutes of the Utah Start Board of Education (State School Board) meeting on August 6, 2010 state that the Board voted unanimously to adopt the Common Core Standards. This document states that it “supersedes the specific governance provisions of the MOU,” and has the same five-step Exit Procedure as the MOU. This vote effectively replaced Utah’s core K-12 standards with Common Core State Standards developed by the National Governors Association and the Council of Chief State School Officers. On this date, the State School Board formally adopted Common Core as Utah’s core standards for English language arts and mathematics.

On January 7, 2011, the U.S. Department of Education entered into a Cooperative Agreement with SBAC. (In August 2012, the State School Board withdrew withdrew from the SBAC.) This has become to be known as the “Race To The Top” (RTTT) Award. However, Utah did not win a RTTT award. The award is deemed cooperative because the Secretary of Education has determined that “substantial involvement” of the Department is necessary for success. The Appendices contain 14 Conditions, including compliance with the Stimulus Act (ARRA) and all applicable operational and administrative provisions. There are Budget tables totaling $149 million for four years, plus $10 million for three years of comprehensive assessment. Finally, the separate Grant Award Notice covered the $149 million and $10 million items above. And it specified “substantial involvement of the Department of Education.”

What is the effect of Utah's Waiver from No Child Left Behind (NCLB)?

On September 23, 2011, the Secretary Duncan invited states to request flexibility regarding specific requirements of the Elementary and Secondary Education Act (ESEA), also known as the No Child Left Behind Act of 2001 (NCLB). States were given the opportunity to replace the federal accountability system with an accountability system developed by the state. Under the federal accountability system, schools were annually evaluated based on meeting targets for the percentage of students scoring proficient on English language arts and mathematics assessments with the goal of all students attaining proficiency by 2014.

To obtain flexibility, the Department of Education requires a state to adopt college-and-career-ready standards (i.e., common core standards) and develop and administer high quality assessments tied to those standards. The State School Board submitted a flexibility request and received approval on June 29, 2012. In its flexibility request, Utah noted its adoption of the Common Core and its membership in the Smarter Balanced Assessment Consortium (SBAC) to fulfill the Department’s requirements for flexibility. But then Utah sent a letter withdrawing from SBAC on August 9, 2012.

Utah was not required to fully adopt the Common Core nor participate in an assessment consortium (such as SBAC) to obtain flexibility from the current ESEA requirements. However, as part of its application for ESEA flexibility, Utah made assurances to the Department of Education regarding its current incorporation of the Common Core into its core standards and Utah's membership in SBAC. Although Utah's application for flexibility made goals and assurances related to its status as a Common Core state and membership in SBAC, Utah could have taken the option to adopt standards other than the Common Core or withdraw from SBAC (which it did). Utah could still petition the Department to allow it to amend or change its approved flexibility request, or it could still re-apply for the ESEA flexibility waiver with different college-and-career ready standards or assessments.

Although the ESEA flexibility waiver has been granted for two years, a state may amend its request: “The Department encourages Utah to continuously evaluate the effectiveness of the plans and other elements of its ESEA flexibility request as it proceeds with implementation, and to make necessary changes to address any challenges that it identifies. . . . If Utah wishes to make changes to its ESEA flexibility request, Utah must submit those changes to the Department as early as feasible for the Department's review and approval.”

When Utah received the waiver, it was automatically excused from the AYP Annual Yearly Progress (AYP) reporting. As of September 2011, about one-fifth Utah schools were not meeting the AYP standards as designated by NCLB. About 20 of those schools were Title 1 schools and would therefore be required to offer to bus children to better schools and offer more tutoring.

After the changes are submitted to the Department, the changes could be approved or the Secretary could decide to terminate Utah's waiver for non-compliance with the ESEA flexibility waiver. If the waiver is terminated, Utah and its school districts and charter schools (LEAs) would be required to comply with the current provisions of ESEA without the flexibility. If the Secretary terminates the waiver, “Utah and its LEAs must immediately resume complying with the requirements of current [ESEA] law.” At that point Utah could re-apply for ESEA flexibility with the new standards or simply comply with current ESEA provisions without flexibility.

Can Utah get out of Common Core?

Utah’s 2009 agreement with the Common Core State Standards Initiative says “This effort is voluntary for states” and does not require the state to do anything as a participating member other than adopt the standards. Utah can stop using common core as its state standard. Since the MOA signed by Utah to participate in the development of the Common Core does not require nor commit Utah to adopting the Common Core, and because Utah did not receive federal money related to its adoption of the Common Core, Utah is not required to keep the Common Core as its state standards.

Some maintain that Utah is required to keep Common Core unless and until it changes the waiver. So it might be more fair to say that Utah does have the option of using other standards that are not aligned with the Common Core. However, it would require Utah to re-write and then be reapproved for the NCLB waiver -- or just abandon the waiver all together. Utah could also adopt “standards that are approved by a State network of institutions of higher education, which must certify that students who meet the standards will not need remedial course work at the postsecondary level” -- an option the federal government originally offered the state when it applied for its waiver. Such an alternative would allow Utah to develop its own standards and still obtain relief from some stifling NCLB regulations and receive the funding to which those regulations are attached. Two states – Minnesota and Virginia – have received NCLB flexibility waivers by choosing this option. In all events, changing Utah’s standards by leaving Common Core would requirement an amendment to the flexibility waiver for NCLB.

In both January 2010 and May 2010, Utah submitted applications to receive grants through the first two phases of the Obama administration’s “Race to the Top” (RTTT) Fund. As part of its evaluation process for determining which states would receive funds, the federal government gave preference to a state if it had “demonstrated its commitment to adopting a common set of high quality standards” by participating in a consortium that included “a significant number of states” and was “working toward jointly developing and adopting a common set of K-12 standards.” Because the state did not win a grant in either the first or second phases of RTTT funding and did not apply for phase three, it is not required to remain in Common Core because of RTTT. But the waiver is a separate matter, as set forth above.

In 2012, the Utah Legislature passed a bill requiring the state to administer statewide computer adaptive tests aligned with Utah’s core standards. The State Office of Education released a “request for proposal” in order to have its own assessments developed or to adopt another existing assessment. It eventually awarded a contract to American Institutes for Research (A.I.R.). AIR is the only vendor that has been approved by the U.S. Department of Education, which makes some people question the amount of federal influence.

What are assessments?

In order to determine if students are learning and understanding the standards through the teaching of the curriculum, schools administer assessments. Utah law requires the State School Board to develop an assessment method to uniformly test students in basic skills courses. In the 2012 General Session, the Legislature passed H.B. 15, Statewide Adaptive Testing, which enacted a new requirement to test Utah’s core standards in science, math and English/language arts with a computer adaptive assessment system.

The Smarter Balanced Assessment Consortium (SBAC) was authorized under the American Recovery and Reinvestment Act of 2009 (ARRA), the federal government provided funding to two consortia of states to develop assessments aligned with the Common Core. Utah initially joined the Smarter Balanced Assessment Consortium (SBAC), a consortium of 27 states created to develop an adaptive assessment system.

On August 3, 2012, the State School Board voted to exit SBAC. The Board's August 3, 2012 Meeting Summary states that the Board voted to end its membership in SBAC in order to avoid a conflict of interest related to the Board's request for proposals for an adaptive assessment system required under 2012 General Session H.B. 15, Statewide Adaptive Testing. Utah is no longer a member of SBAC and through the RFP process has contracted with the American Institutes for Research (A.I.R.) to develop Utah’s computer adaptive assessments.

What will common core cost?

The answer is not yet clear.

According to the Utah State Office of Education, “Utah is not spending any more money on the common core adoption than is typically associated with core standards revision -- which have been in pace since 1984. School districts and charter schools have received no additional funds, federal or state, to implement the new core standards or new instructional materials and curriculum. In fact, earmarked funding for professional development, which is used to train Utah’s public school educators in new core standards, has decreased significantly. Before 2008. school districts and charter schools had $78 million in state funds for professional development through the Quality Educator Block Grant. This funding has been almost completely eliminated. For the 2011-12 school year, the Legislature allocated only $2 million in state funds for professional development, and cut that amount in half for the following school year. Furthermore, textbook costs are not anticipated to increase. Whenever new standards are implemented, school districts and charters are required to phase in new materials. Due to restricted finances, many do not immediately purchase new books.Instead, most have a five-to-seven-year textbook replacement plan.

“Utah is spending money on developing new computer adaptive assessments. In 2007, Governor Jon Huntsman convened a Blue Ribbon Panel on Assessment. The panel, stakeholders throughout the state, and the Utah State Board of Education concluded that computer adaptive assessments should be studied and, if successful, should be adopted statewide. Successful pilots were conducted, and the State School Board concluded that state funds should be sought for computer adaptive assessments aligned to state standards. This request would have been made for whichever state standards were adopted by the State Board.”

The Utah Office of Legislative Research and General Counsel had similar findings in regards to the cost of implementation of the new core standards in Utah. It concluded that the federal government may only require a state to comply with a public education mandate if the mandate is a condition of the receipt of money accepted by the state through a federal program. If a state were to fail to comply with the conditions of a grant, the federal government could require the state to refund the money as a penalty for non-compliance. While Congress has no authority to regulate activities for a general welfare purpose, it may tax and spend “for the general welfare.” According to United States Supreme Court jurisprudence, Congress may not directly regulate certain interests that traditionally belong to the states, such as education. Congress may, however, indirectly regulate traditionally local interests by conditioning a state's receipt of federal money on the state meeting certain conditions.

There is a limit to Congress's ability to coerce a state to act by granting or withholding federal funds. The United States Supreme Court has noted the possibility that a given set of federal conditions to a state’s participation in a federal spending program could be so onerous as to rise to a point where "pressure turns into compulsion," regardless of whether Congress has sought the consent of the states as part of the federal program.

In South Dakota v. Dole, the state challenged a grant of federal funding for roads that required South Dakota to raise its minimum drinking age to 21 or lose 5% of the state's ongoing federal transportation funding. The Court recognized that a circumstance could exist where the conditions placed on receipt of the federal money were so extreme that they amounted to coercion of the states. The Court ruled in favor of the federal government, finding that a loss of 5% of ongoing transportation funding was minimal and that the state's argument that it was “coercion [was] shown to be more rhetoric than fact.” Despite the Court's specific holding in Dole, the case left open the possibility that a future grant program offered to the states by Congress could be struck down if the grant conditions were so onerous that a court could determine that they amounted to "coercion."

Is Utah required to give student-identifying data to the federal government or other states because of the Common Core or SBAC?

Neither Utah's adoption of the Common Core nor its past participation in SBAC require Utah or its school districts and charter schools to share data or report student information. Utah school districts and charter schools are required to report certain aggregated (non-identifying) student information pursuant to certain federal programs, but both of the largest federal public education programs explicitly prohibit the reporting of student identifying information to the federal government. Utah will have to comply with the same federal reporting requirements whether it continues to use its current standards based on the Common Core or if Utah adopts other core standards created exclusively for Utah.

There is some concern about data sharing that may be associated with using national assessments. Those will arguably link Utah into national data banks that we don’t have control. Therefore, Utah will not have any say regarding what information is collected or to whom it is distributed. So it may be more fair to say that Utah schools are required to report certain aggregated (non-identifying) student information pursuant to certain federal programs. The Legislature has attempted to secure the information of Utah students, but this is an issue that has proven to be complicated. Some people fear that federal FERPA changes have made it optional to share this data.