DFL Stops Republican Effort to Uphold Legislative Authority

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!

Video of the debate on the confirmation is here starting at 51:48 and finishes here.

Here is a summary of important highlights from the debate:

Senator Nienow makes his motion to re-refer.

Senator Torres Ray objects saying that she heard nothing of the concerns about this at the hearing. Part of the reason she heard so little is that there was no proper notification of the public about the hearing – only hours elapsed between the hearing and when the agenda on the online meeting schedule was changed from “to be announced” to mention that the commissioner’s confirmation would be heard.

Senator Cohen is either ignorant of statute or attempts to mislead the Senate by saying that because the social studies standards are being ruled upon by an administrative law judge, the commissioner could not possibly have done anything that violated the law and these concerns should have nothing to do with confirmation.  Apparently he is ignorant of the statutes pertaining to rule making (M.S. 14.31) that require rules promulgated to comply with both state and federal statutes.

Senator Gazelka discusses the content issues related to the social studies standards such as loss of the concept of unalienable rights and the addition of institutionalized racism.

Senator Newman (R) discusses and refutes Senator Cohen’s point about whether there can be a statutory violation if a rule is being heard by an ALJ.

Senator Hann gives an excellent statement describing the concern that the commissioner disregarded legislative history and authority by extensively rewriting the standards as well as the benchmarks.

Senator Torres Ray continues to ask the Senate not to pay any attention to those pesky legal issues and just look at Cassellius’ resume.  She promises to have hearings on issues like the standards because she understands how contentious these can be, but then slams Education Liberty Watch for bringing up the statute  requiring the standards to have constitutional consistency.  She says it “was difficult for me to read” our testimony questioning the constitutionality of the DOE repeatedly promoting the concept of global citizenship. It is sad to see that an elected official has a hard time reading about fellow citizens who care about upholding the Constitution.

Senator Carla Nelson (R) reminds the Chairwoman of the committee (Ray) that she did in fact ask the commissioner whether she had changed the benchmarks.  In the hearing, Cassellius refused to answer that simple question, saying that she would wait until the administrative law judge ruled, indicating to us that she knew that changing the benchmarks was a potentially violated statute.  (Audio here).

Senator Stumpf (DFL) also didn’t seem too interested in statutory consistency saying what a “slap in the face” it would be to send the appointment back to committee without really addressing the concerns raised.  He tried to make the effort to re-refer about opposition to the standards instead of wanting the law obeyed.

Senator Nienow concludes by reminding his colleagues about the importance of the rule of law, saying:

“This motion has to do with a sense of duty that I have and that I hope you all feel that you have to this institution.  We have a state law that says that the benchmarks shall not be changed unless the legislature approves it.  We have not approved that.  When the commissioner was asked, ‘Are you changing the benchmarks,?’ she would not say no. She said, ‘Let’s see what the judge says.’ And that’s what I’m suggesting we do.  Let’s see what the judge says.  If the judge says she was perfectly within her authority, then no questions asked.  If the judge says she was changing the benchmarks in violation of this statute, that means that she usurped your authority. And if she’s already confirmed, she’s no longer accountable to this body.  If the judge says she usurped your authority, then we need to talk about that and we need to have her in front of the committee where we can hold her accountable and ask, ‘Why did you do that? Are you going to do it again? Are you going to stop? Why should we believe you are going to stop? These are important questions for the integrity of this institution.  This isn’t about standards.  This isn’t about qualifications on a resume.  This is about someone who we’re prepared to vote on confirmation today whether they violated a specific state statute that says only you, the legislature, have that authority.  And if a commissioner is encroaching on your authority, I would hope… I would hope that you would stand up and defend this institution.  Maybe we don’t have to, but we don’t know until we get a decision from the judge, and that’s all I’m asking.  Put it back in committee, wait for that decision from the judge, and take it from there.”

The roll calls on the two votes were as follows:

Bakk, Bonoff, Carlson, Champion, Clausen, Cohen, Dahle, Dibble, Dziedzic, Eaton, Eken, Franzen, Goodwin, Hayden, Hoffman, Jensen, Johnson, Kent, Koenen, Latz, Lourey, Marty, Metzen, Pappas, Petersen, B., Reinert, Rest, Saxhaug, Scalze, Schmit, Sheran, Sieben, Skoe, Sparks, Stumpf, Tomassoni, Torres Ray, Wiger, Wiklund

2) Final Confirmation Vote

Those who vote in the affirmative to confirm the commissioner were all Democrats except for the following Republicans – Chamberlain, Fischbach, Nelson, Pederson J, Petersen B, Rosen:

Bakk, Bonoff, Carlson, Chamberlain, Champion, Clausen, Cohen, Dahle, Dibble, Dziedzic, Eaton, Eken, Fischbach, Franzen, Goodwin, Hayden,Hoffman, Jensen, Johnson, Kent, Koenen, Latz, Lourey, Marty, Metzen, Miller, Nelson, Pappas, Pederson, J., Petersen, B., Reinert, Rest, Rosen, Saxhaug, Scalze, Schmit, Sheran, Sieben, Skoe, Sparks, Stumpf, Tomassoni, Torres Ray, Wiger, Wiklund

Those who voted against the confirmation were all Republicans and deserve our thanks:

Anderson, Benson, Brown, Dahms, Gazelka, Hall, Hann, Housley, Ingebrigtsen, Kiffmeyer, Limmer, Newman, Nienow, Osmek, Pratt, Ruud, Senjem, Thompson, Weber, Westrom

Senators Hawj (DFL) & Ortman (R) did not cast either vote.