Thomas More Law Center Loses Bid to Halt Common Core-Linked Testing in WV


Bailey Glasser continues to defend state officials against lawsuits protesting West Virginia’s participation in the Smarter Balanced Assessment Consortium (SBac).

Despite several legal rulings questioning their merit, attacks continue against West Virginia’s participation in the Smarter Balanced Assessment Consortium, a collaboration of states that have adopted Common Core-based standards.

Benjamin Bailey of Bailey Glasser’s Charleston, West Virginia, office, defended the West Virginia Board of Education and Gov. Earl Ray Tomblin against two lawsuits brought by Del. Mike Folk after a bill he filed to force the state out of SBAC failed.

After the state Supreme Court rejected the second suit (the first was voluntarily withdrawn), Angela Summers and Fred Dailey, represented by the Thomas More Law Center and John Sauer of the James Otis Law Group in Missouri, brought a nearly identical challenge. As part of that lawsuit, Sauer and the Thomas More Law Center asked for a preliminary injunction, claiming that ongoing payments from the state to SBAC caused their clients “irreparable harm.”

Bailey opposed that request, arguing that the plaintiffs’ claim was unlikely to succeed and that the injunction would cause harm to the public interest that would far outweigh the alleged harm to the plaintiffs, forcing the state to pay millions of dollars to acquire new tests or risk losing more than $300 million in federal education funding.

Despite seeking this extraordinary remedy, the plaintiffs failed to show up at the injunction hearing on January 4 to testify about the irreparable harm they alleged. Their attorneys did not produce any other witnesses or evidence of harm. The plaintiffs were also represented by Jeff Kimble and E. Ryan Kennedy of Robinson & McElwee.

The court, citing the lack of evidence, denied the injunction.

The continued legal attacks against West Virginia’s Next Generation education standards (originally known as Common Core standards), including those by out-of-state special interest lawyers, are misplaced. This remains a political issue, not a judicial dispute. It concerns a policy judgment that, constitutionally, is clearly left in the hands of the state Board of Education.

“These plaintiffs take issue with the standards and assessment tools adopted by the Board, but that grievance is not one that can or should be settled in a court of law,” says Bailey. “Those racing to court to challenge the actions of the Board and Department of Education are wasting the time and scarce resources of these state agencies, which would be better spent working to improve the delivery of public education in West Virginia.”

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