West Virginia Delegate Mike Folk  filed a lawsuit in April challenging the WV State Board of Education’s right to adopt the Common Core standards and join the Smarter Balanced Assessment Consortia.  A notice from his office was released a few days ago.

“Many of the greatest minds of history held that the ultimate purpose of education is the pursuit of truth and virtue. Unfortunately, our own State Board of Education has turned this pursuit of higher knowledge on its head, into a bureaucratic nightmare for both our children and our teachers of West Virginia. This has been done through a system of education that now requires our children and teachers to soak-up months of the precious school year expending all of their energy on endless ‘assessments,’—including the Smarter Balanced Assessment (SBA)—which is a key part of the Common Core policy which has plagued our schools. Not only is our education system now burdened with valueless testing, which takes up months of time simply preparing and administering—it is also costing our taxpayers around $24 Million per year, money our state cannot afford in these uncertain economic times.

This is why I have filed a lawsuit against the State Board of Education—in order to prevent the harm being done to our children, our teachers, and the taxpayers of our great state.
The merits of the case I have filed are a serious matter. First, the State Board of Education has not followed the law (W.Va. Code § 18-2H-2) in West Virginia, after it blindly adopted both Common Core and all of the prolonged testing that goes with it. Our law requires 60 days of public notice with any “significant” education policy change, and our law also requires at least 4 public hearings be held around the state. This never took place—our law was just simply ignored.

Perhaps most egregious though, entering into the Smarter Balanced Assessment Consortium (SBAC) is a violation of the US Constitution’s Compact Clause (Art. I, Sec. 10, cl. 3). Even though the Common Core & SBA was shoved on us by the elites in Washington DC and our own State School Board, the US Congress never held a vote on the SBAC as required by the U.S. Constitution. Our state government cannot simply enter into Interstate Compacts without the consent of Congress and our State legislature—especially agreements that “radically reshape the Education system” (Quote from the SBAC’s own documents on their stated purpose)—without the people’s representatives ever casting a vote.

This cannot be about politics in my mind. Our children cannot be used like guinea pigs in a laboratory experiment for this radical testing, and these radical standards and curriculum now being taught in our schools—all of which is wasting taxpayer money, and squandering precious time our children and our own teachers can spend on real learning and true knowledge.

Above all, I took an oath to defend the US & WV Constitutions. I take that oath seriously. Many times, defending that oath helps the people of our state the most. We must help our children in West Virginia, no matter which political party is wrong. The implementation of Common Core and SBA was forced on our children, without following the law, without any vote by the people’s representatives, and without any clear transparency or deliberation. The days of trying every new group-think fad brought to us by these education elitists needs to end. We need to get back to the basics for our children, allow teachers to actually teach—and pursue real knowledge that will help our children have a better future.

Michael Folk is a member of the WV House of Delegates. Mike is also the father of four children, an airline pilot, and a former educator in both the public school system and in college. You can contact him at mcfolk34@gmail.com, folk4wv.com, or on FB at WV Delegate Mike Folk.”

Since then the Governor’s attorneys and the Attorney General’s office have tried to get it dismissed on procedural grounds.  A couple judges have recused themselves from the case, but there have been no arguments yet on the merits of the case.

During the last legislative session, a bill that would have discontinued Common Core and the SBAC standardized testing in West Virginia passed in the House, but died in the Senate after state school Superintendent Dr. Michael Martirano promised more public meetings on the issue. This prompted Folk’s filing of the lawsuit.

West Virginia joins a growing list of states exiting or attempting to exit the testing consortia. (See SBAC’s latest map of members.  MO is listed as a License Member, not a category included in the original MOU.) There are now three states, Missouri, North Dakota and West Virginia that have or have had lawsuits contesting their state’s membership in the consortia. Missouri’s Judge Green sided with the plaintiffs agreeing that the consortia was an illegal interstate compact. North Dakota filed a similar suit last week.

Maine was the most recent state to exit the testing consortia through legislative action. Governor LePage just signed Legislative Document 1276 which requires the state to leave SBAC.  Wisconsin has begun a search for a test to replace the SBAC test.

Other states are struggling with the exams. New York’s experience may have been the most widely publicized, but Nevada now joins the list of states who have had disastrous experience trying to administer the SBAC exams.  The Daily Caller reported, “Nevada was only able to test 37 percent of the 213,000 students it was supposed to, thanks to a cascade of glitches and computer problems that left students unable to complete their exams. In Clark County, which contains the Las Vegas metro area and over half the state’s students, only 5 percent were successfully tested.”  As a result, Nevada is at risk of losing millions in federal funding because they are unable to issue district grades as required by the NCLB waiver request.

PARCC is the other testing consortia which is losing members even faster than SBAC. This weekend Fox New Sunday host Chris Wallace met with PARCC Executive Director Laura Slover. Wallace attempted to take the PARCC 3rd grade exam.  He called the reading portion “a little challenging.”  Does this mean that Mike Wallace doesn’t have the 21st century skills necessary to compete in the global economy?


“These are different kinds of tests. They measure critical thinking, problem solving and they actually ask kids to do more than fill in bubbles.”  Slover said this right after b-roll showed  someone selecting correct answers on the PARCC test as digital bubbles. Even the Executive Director only knows the talking points for the tests.

Slover also said, “For too long in this country success has been a function of what income level parents have and where kids grow up. We think its critical all kids have opportunities…they should all have access to an excellent education and this is a step in the right direction.” Ms. Slover got part of it right. Success, if defined by scores on tests like the one PARCC is providing, is a function of family income and parental education level. However, giving the test will only confirm those demographics. It will not magically improve the outcome of kids in schools universally.

In fact it may, as it has done in one elementary school in Springfield Missouri, vastly reduce their exposure to a broad spectrum of educational content. The principal at Robberson has informed his teachers that they will no longer be covering social studies, science or any other content area except reading, writing and mathematics. This 100% Title I school is desperate to improve their test scores so they are dropping anything that is not tested, an unfortunate, but predictable, consequence of the heavy focus on high stakes testing.

The momentum is definitely not in the consortia’s favor at this point. Parents and teachers are resisting the test due to its lack of validity and transparency and its inability to provide meaningful information about students’ level of knowledge or teacher effectiveness (except maybe at teaching to the test.) The opt out movement will continue to grow in states that retain the tests. The additional filing of lawsuits will likely serve to fuel that exodus.

Anne Gassel

Anne has been writing on MEW since 2012 and has been a citizen lobbyist on Common Core since 2013. Some day she would like to see a national Hippocratic oath for educators “I will remember that there is an art to teaching as well as science, and that warmth, sympathy and understanding are sometimes more important than policy or what the data say. My first priority is to do no harm to the children entrusted to my temporary care.”

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