Note: Administrative Law Judge Barbara Neilson rendered a decision favoring the Minnesota Department of Education on the Minnesota Social Studies Standards that completely ignored a lot of evidence from Education Liberty Watch, numerous legislators and many experts. What follows is an analysis of that decision by attorney Marjorie Holsten, an attorney and homeschooling mother who teaches courses on the U.S. Constitution, is a member of the Education Liberty Watch Board and presented the Education Liberty Watch case at the administrative hearing on the standards:
On behalf of Education Liberty Watch (ELW), I would like to thank everyone who participated in the fight against adoption of the proposed Social Studies standards, whether by petitioning for a hearing, attending the hearing on December 20, 2012, testifying at the hearing, or submitting written testimony. Judge Barbara Neilson recently rendered a disappointing 42-page Opinion with 232 footnotes (including more than a dozen to testimony or written submissions by ELW). Because readers do not have time to read a lengthy report, and because I do not want anyone to be overwhelmed by the lack of logic,, I will only share my “Top 10” objections, listed in the order in which they appear in the opinion. All references are to the paragraph numbers and pages of the opinion on which they appear.
- Statutory Authority: ELW, and legislators including Senators David Hann, Gary Dahms, Dan Hall, Dave Thompson, and Bill Weber, plus Representatives Kelby Woodard and Sondra Erickson stated that the proposed standards “go beyond the revision and alignment” to be “a wholesale makeover of settled standards that exceeds the legislative grant of authority for rulemaking and that will create additional expense for the state and for local schools, generate confusion, and weaken academics for every public school student.” (¶38 page 13) Minnesota Department of Education (MDE) “disagreed with these comments, and denied that it has exceeded its proper authority in proposing the current rules.” (¶39 page 14). MDE went on to say that “As a result of these new legislative mandates and in response to “best practices” research and extensive feedback… it was necessary to make significant changes to the 2004 standards.” (¶39 page 14) Without any analysis, Judge Neilson concluded that “the Department has shown that it has statutory authority to adopt the proposed rules..” (¶40 page 14). The judge also completely ignored the clear statutory concern about MDE revising the benchmarks without specific statutory authority to do so.
- Federal Funding: In the Statement of Need and Reasonableness (SONAR), MDE stated that Minnesota “risks the loss of federal funding under No Child Left Behind (NCLB) if it does not adopt academic social studies standards.” (¶51 page 17). ELW and others disputed this. In response, MDE acknowledged that NCLB does not specifically include social studies as a federally-required subject area for standards” (¶52, page 18). The Judge then found that “While it may be unlikely that the federal government would in fact withhold federal funds if the Department failed to revise the 2004 social studies standards… the Department has complied with the requirement that it describe what if believes to be the probable consequences of not adopting the proposed rules and has articulated an arguable legal basis for its concern.” (¶53 page 18) In other words, MDE lied, ELW pointed out the lie, and MDE confessed to lying, but the Judge bought the lie because it sounded good.
- Federal Control: ELW, Senator Sean Nienow, the American Principles Project, and others objected to MDE adopting national standards such as those involved in the Common Core State Standards, and brought up three federal statutes that prohibit federal supervision, direction, and control of school curriculum. (¶56 page 19) MDE acknowledged that the proposed standards were influenced by national standards and were tied to the Common Core standards in English language arts. The Judge ruled that MDE “did not need to discuss the three federal statutes in its regulatory analysis.” (¶56 page 19)
- Public Comments Ignored: Judge Neilson noted that many individuals and groups participated in the process, but chose to ignore many because “they did not raise issues of legality or reasonableness of the proposed rules or because they focused on the benchmarks and thus fall outside the scope of this rulemaking proceeding.” (¶71 page 22) As someone who attended the hearing, I heard significant testimony against the standards that in my opinion were clearly objections to the reasonableness and legality of the standards. The judge conveniently chose to ignore this by determining that the MDE was reasonable and “rational,” thereby intimating that those with differing opinions were not.
- Conservatives Denigrated: Judge Neilson noted comments of individuals critical of ELW and others who opposed to the new standards. Two quotes show mind-blowing bias. The first was an assertion that “the proposed rules should not be revised at the behest of a small number of individuals with religious or conservative political agendas.” (¶78 page 25) The second was an assertion by a certain “Mr. Moore” that “several arguments made in opposition to the proposed rules are flawed and rest on a fundamental misunderstanding of the nature of academic standards.” (¶78 page 25) In other words, those of us who have religious or conservative “political agendas” and oppose imposition of liberal ideology on our children have a “fundamental misunderstanding” of what liberals are trying to do by creating liberal academic standards. No Mr. Moore, we understand exactly what you and your cohorts are trying to do, and we strongly object. In addition, multiple current or past college professors and standards experts supported the public’s reasonable objections with scholarly, rational reasons as to why these standards are flawed and the judge chose to ignore them.
- Anti-American Emphasis. ELW and others brought up that the proposed standards failed to emphasize the contributions of Western civilization, and instead emphasized “loyalty to entities and governance outside of the US.” (¶87 page 29) MDE countered by stating that “students would be better prepared for the global world” (¶88 page 29), and denied that “the proposed standards reflect a liberal or other bias.” (¶94 page 31) Here is a note to the MDE: Omitting loyalty to the United States and teaching global citizenship reflects a substantial Anti-American, liberal bias.
- American Exceptionalism Omitted. ELW and others brought up that the proposed standards failed to stress American Exceptionalism. MDE declared that “most professional historians and other social scientists do not accept the premise of the “American Exceptionalism” interpretation. Moreover, those who are critical of “American Exceptionalism” believe that the assertions made by those who support it lack analytical precision and are difficult to verify since the evidence varies depending on how these qualities are defined, how the historical period was examined, and what particular metrics were used.” (¶94 page 32) In other words, liberals choose to ignore the reasons America became a “shining City on a Hill,” which were well laid out by experts such as Dr. John Fonte and Dr. Ryan MacPherson, among others and will most certainly not allow that idea to be taught to our young people.
- Unalienable Rights: Many individuals testified at the hearing that the proposed standards do not distinguish between God-given/unalienable rights from government-given rights. (¶100 page 34). MDE responded that they deliberately did not identify the source of any rights because “this is a religious belief and not a widely-accepted fact within the social studies academic community.” (¶102 page 35) Acceptance of MDE’s position means that schools cannot educate students about Jefferson’s words in the Declaration of Independence that “We hold these truths to be self-evident, that all men are endowed by their Creator with certain unalienable rights…”
- Constitutional Republic: Several individuals objected to the use of the word “democracy” in the standards and stated that students should be taught correctly that America is a Constitutional Republic. MDE responded that “the proposed standards to not claim that the United States is a direct democracy.” (¶103 page 36). They further argue that “the United States government has become more democratic over time.” (¶103 page 36) The move away from a Constitutional Republic is the result of the liberal teaching that has been going on in government schools over the years, and is about to be put on steroids. When our founding fathers completed the Constitution in 1787, someone asked Benjamin Franklin what type of government they had created. He answered, “A Republic, if you can keep it.” We are in danger of losing our republic, and the schools are leading the charge. The judge is also ignoring Article IV, section 4 of the US Constitution, which says, “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”
- Removal of “Free market”: ELW and others pointed out that the phrase “free market” has been removed from the proposed standards. MDE explained that term “free market” was the same as “free market capitalism,” and that they preferred to use the term “market capitalism” because the term “free market capitalism” is redundant. (My apologies to anyone whose head just exploded ) MDE further asserted that the standards “were drafted in a balanced way so as to not promote any particular ideology, belief system, or set of values.” If you believe that, I would like to sell you a health care system that will insure an additional 30 million people, provide better service, and cost less, and you can keep your own doctor.
Judge Neilson concluded by writing that “It is inevitable that there will be disagreement between people about the content that should be included in the academic standards, particularly where, as here, the subject matter includes such controversial topics as economics, history, government, and “human” geography. She went on to note that “An agency is entitled to make choices between possible approaches so long as its choice is rational.” (¶113 page 40). Her wrap-up is as follows:
“It is not the role of the administrative law judge to determine which policy alternative presents the “best” approach, since this would invade the policy-making discretion of the agency. The question is, whether the choice made by the agency is one that a rational person could have made.” (¶113 page 40).
What a shocker that Judge Neilson concluded that “The Department has shown that there is a rational basis for the proposed standards it has chosen to include in the rules” (¶114 page 40) and recommended that the standards be adopted.
As a Constitutional Law attorney, and a parent who homeschooled my children and taught American Government and Constitutional laws to various homeschool co-ops, it is my opinion that the standards will not prepare Minnesota’s students to be proud, independent Americans, that they are breathtaking in their liberal bias, and that no rational parent would want any of this taught to their students. Please join me as we continue to investigate how to fight against implementation of these standards next year.
Again without notice on the publicly available agenda documents, the Senate took up the confirmation votes for several major commissioners, including Commissioner of Education Brenda Cassellius, about whom we raised many significant concerns in our last alert. The Senate Republican Caucus deserves great thanks and congratulations. Despite being in the minority and having several other candidates about whom they could have raised concerns, they decided to take their stand by discussing in detail two of the many statutory violations and constitutional sidesteps that we listed in that update in order to make the very necessary points about this commissioner’s violation of separation of powers and the rule of law.
The effort was led by Senator Sean Nienow, Ranking Minority Member for the Education Finance Division, who made a motion to re-refer the appointment to the Education Committee until the Administrative Law Judge Barbara Nielson finishes ruling on whether the DOE under this commissioner has violated the statutes covering the extensive rewriting of the standards and benchmarks. He did an excellent job of explaining how it was not about the social studies standards or qualifications, but how important it was to delay the vote until the judge ruled in order to uphold legislative authority. He was ably assisted by Minority Leader David Hann, Ranking Member on the Education Policy Committee, Carla Nelson, as well as Senators Paul Gazelka and Scott Newman. They effectively argued against the misstatements of Education Committee Chairwoman Patricia Torres Ray and Senator Dick Cohen. Ultimately, however being in the minority was the deciding factor, and the motion to re-refer was defeated on a vote of 26-39 and the confirmation going through on a vote 45-20.
Please see below for details such as roll call votes, links to the video, summary, and quotes. More importantly, please contact and thank Senate Minority Leader David Hann (651-296-1749) and Senator Sean Nienow (651-296-5419), as well as the others listed and your own senator if appropriate (info here). This incident gives us hope that there are senators that won’t roll over and play dead and that are willing to do what is right even if in the minority. Let us keep encouraging our legislators to stand on these important principles!
With almost no forewarning to allow the public to prepare testimony, the Minnesota Senate Education Committee recommended the confirmation of Education Commissioner Brenda Casselius. Although committee Republicans asked some good questions, there was ultimately little that they could do given Democrat control. The nomination was forwarded to the full Senate on a voice vote with only slight dissent. We have just found out that the full Senate vote will likely occur tomorrow, Monday, February 4th. Although it is unlikely to stop her final confirmation, Education Liberty Watch wants the public and the legislature to conduct the upcoming vote with their eyes wide open as to the alarmingly long list of legal and constitutional violations and sidesteps committed by this commissioner. Please consider forwarding this list to your senator (contact info here), regardless of party, so that they know what they are doing as they cast their vote, and so that you may hold them accountable in the future.
- Constitutional Consistency: Both of the major Department of Education documents submitted to the judge during the standards hearing process (Statement of Need and Reasonableness SONAR and their Response to testimony) fail to mention the statutory requirement that the standards “be consistent with the Constitutions of the United States and the state of Minnesota.” (120B.021, Subd. 2b3). Our testimony noted, “The focus on globalization and reliance of the [standards] committee and the SONAR on a document titled “Preparing Citizens for a Global Community” and making the statement on page 35, “Several leading social studies sources support the need for students to develop skills to become effective global citizens,” seems to be emphasizing loyalty to entities and governance outside of the US and is inconsistent with the US Constitution.”
- Benchmarks: These are the specific smalller ideas under each standard. After the big fight over standards and benchmarks in 2003 and 2004, Minnesota Statute 120B.023, subdivision 1(c) was passed that says, “Once established, the commissioner may change the benchmarks only with specific legislative authorization and after completing a review under subdivision 2.” There has clearly been no act of the legislature to do this and the Department’s response to this concern basically says that because it is more convenient for them to do so and because they have done it for other subjects, they may disobey the law.
- Revise and Align: Minnesota Statute 120B.023, subdivision 2(f) states, “The commissioner in the 2010-2011 school year must revise and align the state’s academic standards and high school graduation requirements in social studies to require that students satisfactorily complete the revised social studies standards beginning in the 2013-2014 school year. The commissioner must implement a review of the academic standards and related benchmarks in social studies beginning in the 2019-2020 school year.” As stated in Senator Hann’s written testimony (page 12) and Senator Olson’s hearing request(page 1), the Department has gone far beyond the specific and limited authority of “revise and align.” They have done a wholesale rewrite.
- Academic Rigor: Minnesota statute, 120B.02, subd, (b)(1) states that, “the rule is intended to raise academic expectations for students, teachers, and schools.” The extensive testimony at the public hearing on the social studies standards by subject matter experts and college professors shows that these new standards are far from rigorous. In addition, the social studies standards are linked to the Common Core English Standards, which have been evaluated to be at a 6th to 8th grade level.
- College Readiness: As stated in Minnesota statute 120B.03 and explained on page 30 of the SONAR, the standards by law are to “identify the academic knowledge and skills that prepare students for postsecondary education, work and civic life in the twenty-first century.” Four current or past college professors and content matter experts have extensively testified that these standards do not comply with that legislative intent, including a college professor that teaches future teachers (MacPherson) and a former professor that has been involved in standards development for many states and test development for NAEP and CIVITAS (Fonte).
Thanks to you, we are well on our way to collecting hundreds of signatures to present to the judge calling for a halt to the horrific proposed social studies standards. However, we have also received reports that some people were having trouble finding the link to the petition in our last email. So, just to be clear, the dedicated link is:
There are buttons on that site to post the petition link to your followers on Facebook and Twitter. We would be grateful if you would do that as well. We will stop collecting petition signatures at 10 AM CST on January 9th in order to be able to get the letter and signatures ready to submit. The deadline for submitting written comments to Judge Nielson at firstname.lastname@example.org is 4:30 PM CST on January 9th. A link to the standards and other details may be found here. The standards of greatest concern to us may be found here. The hearing report contains some of the excellent testimony. See below for more quotes and links to other testimony to which we have received access, as well as Education Liberty Watch and Dr. Karen Effrem in the media. Thanks and please keep it up!!
“…As a college professor, I agree with Dr. Debbi Daniels, who has stated that these revised standards will not equip students for college. Minnesota statutes require that public education prepare students for college, but these new standards will fail to fulfill that legislative mandate…”
“…In summary, the current standard covering the American Revolution concisely summarizes that historic episode, whereas the proposed revision introduces error and confusion…”
“… Suffice it to say, the proposed revisions are academically inferior to the current standards. The Minnesota Department of Education has claimed in its SONAR document to have followed the pattern of several states that it identifies as “exemplary.” But the standards of those “exemplary” states in fact include Western Civilization as a key organizing principle and assign specific standards to the Renaissance and Reformation.
I also concur with Mrs. Quist, who emphasized the distinction between natural rights and so called individual rights. Natural rights are part of human nature, whereas individual rights can be created or destroyed by government. One person who understood this well was John F. Kennedy. I quote from his inaugural address, where he asserted that “the rights of man come not from the generosity of the state, but from the hand of God.” Kennedy understood natural rights just as surely as Jefferson and Lincoln. The current standards teach this; the new revisions do not.
Moreover, I maintain that the Department of Education has failed to meet the required burden of proof to demonstrate that the proposed changes are either necessary or appropriate from a legal standpoint. The SONAR document insinuates that Minnesota will lose federal funding unless these new standards are adopted, but the Department has failed to show that the current standards fall short of federal and state requirements (other than the relatively simple matter of changing grade bands into grade-level benchmarks) or that these particular revision proposals are the most prudent means of complying with federal or state requirements.”
“I believe American students should be competitive, and should rate at the top of the list compared to other countries. Sadly, currently we fall somewhere in the middle of the pack. Instead of these pro-global and anti-American standards why don’t we raise the ceiling and the floor of the current student academic achievement? Instead of touting pro-globalism, why don’t we emphasize and return to the values, morals, and principles upon which our Republic was founded? In just over 200 years, Americans have made more progress than the entire human race has done in over 5000 years. I propose that we concentrate on educating our students and developing their skills so they become more disciplined, responsible, and productive Americans, instead of more effective global citizens “
“I am not suggesting that American history should be cleansed of the sins of our past. One of the most healing and encouraging developments in U.S. History instruction in the past ten years is the introduction of detailed instruction on the internment of Japanese Americans during World War II, and the concurrent distinguished U.S. military service of many Japanese Americans. As a History Day judge in the Wayzata School District, I have been gratified to see that student projects about these topics portray both injustice and justice, and how even a community oppressed by racism and bigotry can remain steadfastly patriotic, even challenging the majority to live up to the American ideals of The Declaration of Independence, the Constitution and our Founders.
I implore the Department of Education to teach Minnesota’s youth about the ideals of our country’s founding, and challenge them to live up to those ideals. As Ronald Reagan said, ‘Freedom is never more than one generation away from extinction.’ Such instruction will also protect future generations from oppression. As Karl Marx is credited with saying, ‘Take away a people’s heritage and they are easily persuaded.'”
The Late Debate 1/4/13 (first segment) on Twin Cities Newstalk AM 1130
The Northern Alliance Radio Network with Mitch Berg 1/5/13 (at about halfway thru the first hour) on AM 1280 the Patriot
The Sue Jeffers Show 1/5/13 (Starting at 33:14) on Twin Cities Newstalk AM 1130
Minnesota Social Studies Standards: Critics Target Changes 12/19/12 by Megan Boldt St. Paul Pioneer Press
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