Legal Analysis of Social Studies Standards Decision

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.

1. 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.
2. 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.
3. 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)
4. 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.
5. 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.
6. 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.
7. 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.
8. 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…”
9. 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.”
10. 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.