Orlich claims NCLB and WASL are unlawful

["Arthur Hu" <arthurhu@comcast.net>]

-----Original Message-----
From: Don Orlich [mailto:dorlich@wsu.edu]
Sent: Monday, March 15, 2004 10:29 AM

Friends:  Here is my letter to the Attorney General re: WASL and
NCLB.  Stay tuned.  don
--
Donald C. Orlich
SMEEC
PO Box 644237
Pullman, WA  99164-4237
(509)  335-4844   FAX (509) 335-7389

The Orlich Group
435 SE Crestview Street, Pullman, WA  99163-2210


March 15, 2004

Christine O. Gregoire
Attorney General
PO Box 40100
Olympia, WA  98504-0100

Dear Attorney General Gregoire:

This letter is being addressed to you in your capacity as our State's chief
legal officer.  In my opinion, the entire accountability section of the No
Child Left Behind Act of 2001, PL 107-110, (NCLB) is unconstitutional.  Let
me outline my arguments and my plea for redress of grievances.

 The Tenth Amendment to the U. S. Constitution states: "The powers not
delegated to the United States by the Constitution, nor prohibited by it to
the states, are reserved to the states respectively, or to the people."
This has been long interpreted to give the states' plenary authority over
public education.  Our own Constitution specifically mentions that public
education is a "paramount" duty of the state.  All states have similar state
constitutional language.

The NCLB mandates a series of "corrective actions" that usurp state
authority.  These include the following partial listing of penalties for
failure of all students to make adequate yearly progress on high-stakes
tests.
.	Replace the school staff, which may include the principal
.	Decrease management authority at the school level
.	Extend the school year or day
.	Transfer students to other schools
.	Reopen the school as a public charter school
.	Appoint a receiver to operate the school in place of the superintendent
and local
     school board
.	Contract with a private management company to operate the school
.	Turn the school over to the state educational agency

Principals and teachers are only two categories of state employees who could
be fired or removed.  Additionally there are counselors, aides, school
nurses and staff personnel.  The consequences might well extend to possible
violations of the National Labor Relations Act.  If such actions were to
take place they clearly violate the Washington
Page Two
Christine O. Gregoire
March 15, 2004

RCW's relating to continuing contracts, teacher and staff retirement and
much more.  In addition, local property owners pay specific taxes to support
local schools including the material property.  There would be litigation if
a private contractor were to take over the public schools as is stipulated
in NCLB.  Ownership resides with the local school district and its board of
school directors; thus there are direct Fifth Amendment implications.
In our state we have 296 school districts.  Nationally the number exceeds
14,000.  Under the penalty sections of PL 107-110, if a school fails any
aspect of the NCLB accountability sections, then all negotiated contracts
between local school boards and
local bargaining units would be completely negated and would be held null
and void.

Applying the administration of the NCLB in general and our own Washington
Assessment of Student Learning (WASL) in specific, the Fifth Amendment of
the U. S. Constitution is violated.  The Fifth Amendment states:

"No person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a grand jury, except in
cases arising in the land or naval forces, or in the militia, when in actual
service in time of war or public danger; nor shall any person be subject for
the same offense to be twice put
in jeopardy of life or limb; nor shall be compelled in any criminal case to
be a witness against himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property be taken for public
use, without just compensation."

The operational clause of The Fifth Amendment is the due process protection.
That clause states " . . . nor be deprived of life, liberty, or property,
without due process of law; nor shall private property be taken for public
use, without just compensation."  Neither the NCLB nor the WASL allows for
due process. Recall the test scoring company, Pearson NCS, shreds the actual
WASL tests.  This appears to be approaching the destruction of evidence and
violation of the Family Educational Rights and Privacy Act (FERPA).

In the state of Minnesota, scoring errors on over 7,900 high school students
' tests led to their being denied a diploma.  A class action lawsuit netted
$16,000 to each of those seniors.  That amounts to over $125,000,000.  The
state of Washington will surely face such a class action lawsuit, as scoring
errors are commonplace on the WASL.

Further, refer to State ex rel v.Ohio Department of Education, 81 Ohio St.3d
527 (1998) issue 29.  In this case the Ohio Supreme Court ruled that student
proficiency tests and the state administered occupational skill tests are
subject to state public disclosure laws.  In a 4 to 3 decision, the court
ruled that under Ohio's Public Records Act the state must
release parts of the 12th Grade Ohio Proficiency Test and the Ohio
Vocational Competency Assessment a year after they are administered.
Page Three
Christine O. Gergoire
March 15, 2004

Adding greater weight to my argument is the memorandum from the U. S.
Department of Education's Family Policy Compliance Office relating to parent
's rights to have access to test protocols.  In brief, On October 2, 1997,
LeRoy S. Rooker, Director, Family Policy Compliance Office issued a
memorandum titled: "Access to test protocols and test answer sheets."  In
part he cited the Family Educational Rights and Privacy Act (FERPA) stating:
"FERPA is a Federal law which affords parents the right to have access to
their children's education records . . . ."  In sum Mr. Rooker noted that a
parent has the right under FERPA to examine both the test question booklet
and the child's test answer sheet.  You may access the full document at the
following URL:

	http://www.fetaweb.com/04/ferpa.rooker.ltr.protocols.htm

In light of the above Constitutional Amendments, case law in Ohio, and the
application of FERPA to students' rights [recall the U. S. Supreme Court in
Tinker v. Des Moines (1969) held that students have substantive civil
rights] it appears that massive civil rights violations are taking place
right now.  Other cases such as Lawrence County v. Lead-Deadwood School
District (469 U. S. 256) may be interpreted that the Fifth Amendment
provides an independent bar to conditional federal grants.

As the State's Attorney General, my request to you is to examine and
evaluate my analyses to determine the merits for probable legal or policy
implications and attendant future actions.  You may decide to seek an
injunction to stay the Accountability Section of the NCLB and/or the
administration of the WASL, which will deny a diploma to any high school
student who fails this subjectively scored test.  The stakes are very high.
At both the federal and state level billions of dollars are at risk, not to
mention the human costs.  Time is of essence and I would be more than happy
to discuss this issue with you.

Respectfully,




Dr. Donald C. Orlich
Professor Emeritus, Science Mathematics Engineering Education Center, WSU
Email:  dorlich@wsu.edu
Home Telephone:  (509) 334-4214   Office Phone (509) 335-4844