CHARLESTON – Attorneys for West Virginia’s top school officials, in a motion filed with the state Supreme Court of Appeals, argue that Delegate Michael Folk’s continued fight over the state’s Common Core educational standards is “purely political” and should be dismissed.
Charleston law firm Bailey & Glasser LLP, which is representing the West Virginia Board of Education and Michael Martirano, the state’s schools superintendent, described Folk’s petition for a writ of mandamus, filed with the state’s highest court at the end of July, as a “futile attempt to litigate his purely political campaign against the ‘Common Core.’”
“As before, Delegate Folk’s cause du jour has no place in a court of law or equity,” Bailey & Glasser attorneys Michael B. Hissam and Ryan M. Donovan wrote, referring to a separate lawsuit filed by Folk over the standards.
The attorneys argue in the school officials’ six-page motion to dismiss that Folk failed to provide sufficient notice.
Under West Virginia Code, the complaining party must provide a state agency’s chief officer with written notice via certified mail at least 30 days prior to filing a lawsuit against that agency.
Folk did not. And the statute’s lone exception -- for “actions seeking injunctive relief” when “irreparable harm” would occur if the action were delayed by giving notice -- is inapplicable, the school officials contend.
“Delegate Folk’s Petition neither seeks injunctive relief nor alleges that providing a mere 30 days’ notice would have led to ‘irreparable harm.’ Nor could it. Delegate Folk voluntarily dismissed his Berkeley County petition on June 11, 2015. He then waited 50 days before filing this Petition on July 31, 2015,” the school officials wrote.
“Thus, Delegate Folk had ample opportunity to provide the required notice, but inexplicably chose not to do so. He cannot now complain that time is short.”
The Republican lawmaker’s arguments are identical to those in a lawsuit he filed in Berkeley Circuit Court in April.
The Martinsburg delegate contends that the state school board and Martirano are violating the U.S. and West Virginia constitutions and state code by implementing Common Core.
But the school officials argue that Folk’s petition presents a “non-justiciable political question” and a “hypothetical controversy” that is not ripe for adjudication.
“Delegate Folk's Petition is a policy argument dressed in Constitutional clothing,” they wrote in their motion. “West Virginia schools will always rely on content standards and West Virginia students will always be subject to standardized assessment.
“At bottom, Delegate Folk simply takes issue with which standards and assessments are used and how they are selected.”
Folk’s “taxpayer challenge” argument also is lacking, the school officials contend.
“Here, Delegate Folk does not assert a ‘personal and individual’ injury, but rather a generalized grievance allegedly suffered (in some indefinite way) by every tax-paying West Virginian,” they wrote, noting that the U.S. Supreme Court has rejected such taxpayer challenges.
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 with the state Supreme Court. “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.
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.
Tomblin, Pizatella and the Department of Administration moved to dismiss the lawsuit in June, calling it “procedurally deficient and ill-conceived.” Days later, Folk voluntarily dismissed his suit.