Folk

CHARLESTON -- West Virginia Delegate Michael Folk is taking his fight over the state’s Common Core educational standards to the state Supreme Court of Appeals.

Folk, R-Berkeley, filed a petition for a writ of mandamus with West Virginia’s highest court Friday.

Folk’s arguments in the 30-page petition are identical to those in his original lawsuit, filed in Berkeley Circuit Court in April.

The Martinsburg lawmaker argues in his newest filing that the state school board and Michael Martirano, the state’s schools superintendent, are violating the U.S. and West Virginia constitutions and state code by implementing Common Core.

More than 40 states, including West Virginia, have adopted the set of math and English standards that specify what students across the nation should learn at each grade level.

Common Core critics, like Folk, say the standards are part of a federal takeover of local schools.

“The Smarter Balanced Assessment Consortium is an interstate compact to which Congress has never consented. SBAC’s avowed purpose was to ‘radically reshape the education systems of participating states,’” Folk wrote in his petition. “This compact was created at the instigation of federal regulators, with the complicity of West Virginia state officials, to attempt to implement a national curriculum in public schools aligned to the Common Core State Standards.

“This attempt was unconstitutional under the Compact Clause and illegal under federal statute. In addition, the agreement to allow SBAC to shape West Virginia education policy is a violation of the West Virginia Constitution and statutes.

“Nevertheless, the West Virginia Department of Education and the West Virginia Treasury are poised to disburse millions of dollars to support SBAC during the upcoming fiscal year.”

Folk said in his petition that he takes issue with “outsourcing to non-West Virginians” the state legislature’s duty to develop a statewide education system and the lack of public hearings held across the state before the standards were adopted.

He is asking the court to issue a rule in mandamus directing the state school board and Martirano to show cause why they should not be: ordered to immediately cease participation in the SBAC; ordered to immediately cease any current or future payments to the SBAC; and ordered to provide notice and public hearings prior to any “significant” education policy changes.

Folk could not immediately be reached for additional comment on the filing.

Delegate Patrick Lane, R-Kanawha and who is serving as counsel for the lawsuit, also could not immediately be reached for comment.

In February, Folk sponsored legislation aimed at repealing Common Core in West Virginia. The House of Delegates passed the bill, but it died in the Senate.

Folk then filed his lawsuit against Gov. Earl Ray Tomblin, Secretary Jason Pizatella, the Department of Administration, Martirano, the state Department of Education, the state school board, Treasurer John Perdue, the Office of the Treasurer and the State seeking to enjoin them from taking any action to authorize, permit or allow disbursement of state taxpayer funds to the SBAC.

Last month, Tomblin, Pizatella and the Department of Administration filed a motion to dismiss the lawsuit.

“Delegate Michael Folk claims that the State’s participation in the Smarter Balanced Assessment Consortium violates the Constitution,” the June 1 motion to dismiss states. “That claim is dead wrong, and an unfortunate and wasteful attempt to bully through the courts a non-justiciable, purely political attack.”

The motion to dismiss calls Folk’s petition “procedurally deficient and ill-conceived,” and states that Folk did not give the state agencies 30 days’ notice before filing the lawsuit, did not file the lawsuit in Kanawha Circuit Court and overlooked the fact that the state must be given 60 days to respond to a complaint.

“Each of these errors provides an independent ground for dismissal,” the motion states.

Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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