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.
April 25, 2013
The following information was sent to Senator Galvano’s office regarding SB 878, the Education Accountability bill that still raises very serious concerns about the undermining of data privacy despite the information you may have received about it during its Senate passage. Therefore Education Liberty Watch and Floridians against Common Core Education are asking you to take the time to review this information before you vote on the final bill. More background information is available here and here.
Thank you for your consideration. Best wishes as you finish the session, hopefully protecting the data privacy and educational quality of Florida’s children by making these changes and also delaying the implementation of Common Core and its related assessments.
Karen R. Effrem, MD
President – Education Liberty Watch
952-361-4931 – office
1) We believe that it is very important that this language on lines 114-116 be deleted:
(f) To promote adoption of a common set of data elements
115 identified by the National Center for Education Statistics to
116 support the effective exchange of data within and across states.
This language will tie Florida’s system to the National Education Data Model (the page has been removed from the NCES website, but the current NCES Student Data Handbook is available here) that will still promote the collection of the 300-400 individual data points on children and families, including Senator Galvano’s three children and his family, much of it having nothing to do with academics. This collection will not be influenced or stopped by the senator’s good amendment.
2) “May” vs. “must” – In Senator Galvano’s amendment, it says:
To satisfy confidentiality protections of
300 this section and 20 U.S.C. s. 1232g, also known as the Family
301 Educational Rights and Privacy Act (FERPA), the department may
302 assign an anonymized random identification number to each record
303 before providing access to data. The department shall develop
304 and the State Board of Education shall adopt rules regarding
305 redacting and anonymizing personally identifiable information. (Emphasis added)
In our view, the use of the word “may” on line 301 indicates that the assigning of the random ID number is optional. Given that this data listed in the amendment is the most sensitive data of all the ridiculously large amount of data that is collected by the school to be given to the federal government and given or sold to outside researchers and corporations, we believe that nothing should be optional regarding its protection.
3) Reliance on FERPA – The above quoted language also says:
To satisfy confidentiality protections of
300 this section and 20 U.S.C. s. 1232g, also known as the Family
301 Educational Rights and Privacy Act (FERPA)…
Because FERPA has been so weakened by both Congress and the Obama administration via regulatory changes to the point that there is a federal lawsuit by the Electronic Privacy Information Center against the US Department of Education on this matter, we are not at all confident that relying on FERPA is in any way helpful. We believe that Florida should exercise its rights under the 10th Amendment and protect student data, regardless of FERPA.
4) Psychological data – As we discussed yesterday, psychological data is not specifically mentioned in the amendment language. Although, as you pointed out, psychological data may be subsumed under “medical records,” we are very concerned about the document published by the US Department of Education discussing the need to teach, test and monitor psychological parameters such as “key psychological resources (mindsets, learning strategies, and effortful control) for a range of purposes” and “intrapersonal and interpersonal skills” via “data mining” and “affective computing,” the latter of which includes the use of these types of monitoring devices:
In addition, the Washington Post reported that studies involving these wireless skin conductance bracelets were funded by the Gates Foundation (here and here) and that the Gates Foundation also hopes to have a camera in every classroom in the nation (see here )
Therefore, we strongly believe that specific language regarding data collection of these types of data via the above types of means should be added to the bill’s list of prohibited items on lines 307-313, such as the following:
Any data collected to measure psychological resources, mindsets, learning strategies, effortful control, attributes, dispositions, social skills, attitudes, and interpersonal and intrapersonal resources.
Any data collected via affective computing, including analysis of facial expressions, EEG brain wave patterns, skin conductance, galvanic skin response, heart rate variability, pulse, blood volume, posture, and eye tracking.
5) It is also important to understand that all of the other sensitive data points on the National Education Data Model or the Student Data Handbook that are not covered by the excellent specific prohibitions in Senator Galvano’s amendments will still be available to corporations and outside researchers. These include:
· At Risk Status (However and by whom that is determined)
· Dwelling Arrangement
· Change in Developmental Status
· Amount of Non-school Activity Involvement
Karen R. Effrem, MD – President
Despite the fact that the Republican National Committee has listened to the grassroots and moved towards freedom in education and student privacy by unanimously adopting an anti-Common Core resolution, the Florida Legislature has moved in the completely opposite direction. The education appropriations bill, SB 1076 that implements the Common Core standards and aligned assessments passed the full legislature and is being sent to Governor Scott and SB 878, the horrific data tracking bill passed the full Florida Senate. (See our reports about SB 878 here and here).
Although there were some good efforts to protect some sensitive student data and Florida activists used their best efforts to warn senators about the truly invasive data collection in SB 878, Jeb Bush and corporate interests whispered in the ears of leadership and other senators and won the day. The bill passed on April 10th unanimously, because the senators had been deceived into believing that student data had been protected. Although Senator Galvano did put some stronger language in to shield some of the more sensitive data and make it anonymous from outside researchers and corporations, for which he deserves thanks, the fact remains that far too much personal data is still being collected by the State of Florida on innocent children and their families and given to the National Center for Education Statistics (NCES). Thanks to the weakening of the Family Educational Rights and Privacy Act (FERPA) that data can be shared with other federal agencies. The attitude is that all of this data on our children belongs to the government and if we, their benighted parents scream and beg, maybe they will protect it or say they are going to do so. The questions never get asked, “Why are you collecting so much data on our children without consent?” and “By what authority do you do so?”
Although he may not have intended it to come off that way, when author of SB 878, Senator Galvano, was interviewed for the Bradenton Herald after Chrissy Blevio and other members of Liberty in Action who live in his district protested the still alarming amount of data collection in the passed bill, his remarks seemed very patronizing. He said these parents “are well-intended but they misunderstand” and the paper portrayed his views of his constituents as laboring under a cloud of “confusion” and “a case of misinformation.” For the edification of Senator Galvano and the rest of the legislature, these parents are not confused or misinformed, they are justifiably angry as the rest of the parents in the state will be when they find out what has happened to their children’s privacy. Here are the facts:
1) Although the bill limits some of the sensitive data given to corporations and outside researchers, all of that sensitive data that we showed from the National Center for Education Statistics National Data Model is and will still be collected by the state and given to the federal government whether parents like it or not. This data still includes: Bus Route, Bus Stop, Arrival Time, At Risk Status, Amount of Non-school Activity Involvement, Distance From Home to School and hundreds of other data points. Because the bill requires the Governing Board to “promote adoption of a common set of data elements identified by the National Center for Education Statistics to support the effective exchange of data within and across states,” one can be sure that those data points will still be included.
2) The data that is not covered by Senator Galvano’s good amendment (“student’s or a student’s family’s juvenile delinquency records, criminal records, medical records, biometric information, religious affiliations, beliefs, political affiliations or beliefs, and sexual or attitudes, or behavior”) will still be given or sold to outside corporations and researchers.
3) Hopefully the data will be aggregated, anonymized and de-identified as stated in the amendment. However, because of the wording used in the amendment,” the Florida Department of Education is not required to, but “may assign an anonymized random identification number to each record before providing access to data.”
4) Conspicuously absent from the list, despite our multiple pleas, are mental health records and psychological data such as the “psychological resources, mindsets, learning strategies, effortful control, attributes, dispositions, social skills, attitudes, and intrapersonal resources” that the U.S. Department of Education plans to measure in the Common Core aligned assessments (p. 17 and 49 of pdf) via all of their fancy affective computing equipment, such as wireless skin conductance bracelets, facial expression cameras, etc. (See p. 62 of the pdf from the same report).
In addition to all of the data privacy issues in SB 878, SB 1076, the education appropriations bill about to be signed by Governor Scott is moving full steam ahead to force Common Core standards and their aligned, psychologically manipulative assessments on every public school, student, and teacher in the state of Florida. Here are some of the many issues with this bill:
Issues with Florida SB 878 – Common Core Linked Data Warehouse Bill
Karen R. Effrem, MD – President, Education Liberty Watch
Executive Summary – SB 878 is a huge danger to the data privacy of Florida’s children and their families for the following reasons:
1) It is being written to comply with the longitudinal data system requirements of the Stimulus bill in general, the Race to the Top grant program, and the No Child Left Behind waivers so that the state can receive funds, not on behalf of the students of Florida and their families.
2) According to the US. Department of Education, the Common Core related assessments will be assessing students on various psychological parameters, not just on academic issues, so that the assessment in Florida’s K-20 Warehouse will definitely include psychological assessment data.
3) According to numerous sources, health and psychological data in education records covered by the Family Education Rights and Privacy Act (FERPA) are not subject to the Health Insurance Privacy and Portability Act (HIPPA) privacy protections.
4) The bill aligns Florida’s data system with the National Center for Education Statistics National Data Model which contains hundreds of data items on each and every child in the state that include both academic and non-academic data, such as religious and political affiliations, mental health data, medical data, bus stop and bus route description, and even DNA sequence. The federal and state governments have no legal or constitutional right to this amount and detail of information on innocent American citizens, especially since it is being stored without parental consent.
5) Although the bill language strives to make it appear that privacy is protected by the various provisions that rely on the Family Educational Rights and Privacy Act (FERPA) passed by Congress to protect student privacy, the Obama administration’s weakening of the law via regulation have created broad exceptions to the requirement to obtain parental consent before releasing individual data that many entities including a “contractor, consultant, volunteer, or other party…” Therefore, this very sensitive, private data will go to outside parties and many government entities without parental consent.
6) The bill combines the K-20 Data Warehouse with the Department of Economic Opportunity’s Wage Record Interchange System so that all of your child’s personal and private data will follow them not only throughout their academic careers, but throughout their work lives as well.
7) The U.S. Department of Education is being sued by the Electronic Privacy Information Center because it has so weakened the FERPA.  And parents, the PTA and the ACLU in states that are part of the inBloom database that already holds data on millions of children from nine different states, are protesting to education officials and seem poised to bring lawsuits in those states. Florida will be open to this kind of legal action if this bill becomes law.
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