Mass AG dishes back on Common Core supporters’ lawsuit

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BOSTON — Attorney General Maura Healey, named in a lawsuit by a band of pro-Common Core plaintiffs who allege she erred in certifying an initiative petition that would let voters decide whether to keep the controversial standards or revert to Massachusetts’ own pre-2010 frameworks, has responded with a court filing of her own.

Healey is defending her office’s decision to certify the initiative after opponents, backed by the Massachusetts Business Alliance for Education, hired the legal powerhouse Foley Hoag in an attempt to convince the state Supreme Judicial Court that the proposed ballot question is vaguely worded and conflicts with the state Constitution.

“Tiny technical flaw”

Healey’s 45-page response devotes a significant amount of ink to criticizing the plaintiffs’ position that a drafting error, in which a single word was mistakenly left out of the petition, made the wording unconstitutional.

The 11 plaintiffs’ March 7 filing relies upon constitutional language requirements, which state that “the enacting style of all measures submitted by the people in pursuance of an initiative petition for a law shall be: ‘Be it enacted by the People, and by their authority.”

The petition Healey approved instead read, “Be it enacted by the people and their authority,” omitting the word “by,” an error the plaintiffs argue should have been a “jurisdictional prerequisite to certification.”

RELATED: Common Core supporters sue to stop ballot initiative

Healey responded by noting that the omission of the word does not change the petition’s core message.

“The omission of the second ‘by’ from the enacting style is a trivial error that neither confuses the meaning of the measure nor bars certification,” she added.

Healey also pointed out that forcing citizen petitioners to adhere to such technical requirements “would open the way for adoption of other statutes imposing excessively technical form requirements to needlessly obstruct the initiative process” and “could also set traps for the unwary leading to invalidation of petitions.”

The end result, Healey said, would run contrary to the intent of the drafters who wrote Article 48, the 99-year-old law allowing Bay State citizens the right to submit legislative petitions.

“The attorney general’s certification of the petition should not be quashed on the basis of a tiny technical flaw in its enacting style,” Healey’s response adds.

Dog races and logrolling?

Another centerpiece of the bid to decertify the citizen petition cites case law dating back to another ballot initiative — one launched in 2006 that sought to ban commercial greyhound racing.

The 2006 petition, however, was successfully pulled from the ballot after the court determined it was too broad: in addition to banning commercial greyhound racing, it also called for making it a crime to harm a military, police or service dog while committing a felony and creating a ban on breeding dogs for fighting.

The court concluded that the additional criminal provisions “bore no meaningful operational relationship to laws that would abolish parimutuel dog racing.”

In their filing, the pro Common Core plaintiffs point to the court’s statement in the greyhound case that the initiative process “does not, and cannot, turn every voter into a legislator.

“Unlike a legislator, the voter has no opportunity to modify, amend, or negotiate the sections of a law proposed by popular initiative.”

The plaintiffs, thus, allege the petition to repeal Common Core fails to be a “unified statement of public policy,” like the 2006 anti-dog racing petition. They argue that the petition “groups together two polarizing yet unrelated issues” — specifically, Common Core standards and standardized testing.

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“This is precisely the type of ‘logrolling’ the mutual dependence of Article 48 was intended to prevent,” the plaintiffs allege.

No so, Healey countered in her reply brief. She notes that state education reform “is grounded in the nexus between academic standards and the mechanisms for assessing progress toward achieving those same standards.”

“The plaintiffs fail to acknowledge this fundamental relationship between curriculum standards and diagnostic testing, allowing only that both ‘may fall under the general field of public education,’” Healey added.

“Curriculum and assessment are inextricably coupled”

The state in 2010 adopted Common Core educational standards — the petition asks voters to rescind that decision. The petition also asks voters to amend state education laws governing how the Board of Education directs the education commissioner to institute the overall teaching and curriculum process — it would add a section whereby the process includes committees “made up exclusively of public school teachers and academics from private and public colleges and universities established and operated in Massachusetts.”

In addition, the petition calls for establishing three “review committees” — one each for math, science and technology and English. Under the proposal, new frameworks — such as the standards the state adopted in 2010 — cannot be approved without a two-thirds approval from each respective committee.

Lastly, the petition directs the education commissioner to “release all of the test items, including questions, constructed responses and essays, for each grade and every subject.”

The plaintiffs claim in their brief, however, that “diagnostic assessments” — or testing — fails to share a “common purpose” with education curriculum framework.

“Section 1 through Section 3 arguably relate to the adoption and creation of educational standards and curriculum frameworks, including an effort to reject a specific curriculum framework, the Common Core,” the brief states. “In contrast, Section 4 relates to the logistics surrounding the public release of test questions, model answers, and other diagnostic assessment materials.”

In her filing, Healey disagreed.

“The twin educational facets of curriculum and assessment are inextricably coupled: assessments exist to measure the extent to which students are learning and school are teaching the material, concepts and strategies set forth in the academic standards,” Healey wrote.

She further noted that the plaintiffs “prefer to read Section 1 (of the petition) in strict isolation.”

“A reasonable voter could believe that reversing the board’s vote and restoring the prior frameworks would operate alongside the proposed law’s new procedures to change the way curriculum frameworks are developed in Massachusetts,” Healey added.

RELATED: Ed board backs MCAS 2.0 plan for new standardized tests 

Kevin C. Conroy, the lead attorney representing the plaintiffs, did not immediately respond to a message requesting comment.

According to a footnote in Healey’s brief, Secretary of State William Galvin — also a defendant in the complaint — is requesting that the court issue an order by July “due to printing deadlines for the Information for Voters Guide.”

Read a copy of Healey’s brief here:

SJC-12064 03 Appellee Attorney General Brief

Read a copy of the plaintiff’s brief here:

SJC-12064 01 Appellant Gray Brief