Date: 07-05-2016

Case Style: STEPHANIE GRAY & others1 vs. ATTORNEY GENERAL & another

Case Number: SJC-12064

Judge: Margot Botsford

Court: Massachusetts Supreme Judicial Court

Plaintiff's Attorney: Juliana deHaan Rice, Assistant Attorney General (Michael B. Firestone, Assistant Attorney General

Defendant's Attorney:

Tad Heuer

Andrew M. London

Description: The common core standards were developed
in 2009 as part of a State-led initiative that included
governors and commissioners of education from forty-eight
States, two territories, and the District of Columbia working as
members of the National Governors Association Center for Best
Practices and the Council of Chief State School Officers. The
purpose of the initiative was to create consistent learning
goals to ensure that all students graduate from high school with
the requisite preparation for "college, career, and life." See
Development Process, Common Core State Standards Initiative,
http://www.corestandards.org/about-the-standards/development
process/ [https://perma.cc/ULU2-CG62]. The common core
standards define learning objectives for each elementary and
secondary school grade level through the final year of high
school, with the goal that every student will be able to meet
expectations for what every child should know by the time he or
she graduates from high school. See Frequently Asked Questions,
Common Core State Standards Initiative,
http://www.corestandards.org/wp-content/uploads/FAQ.pdf
[https://perma.cc/W3VR-PQLN].
On July 21, 2010, the Board of Elementary and Secondary
Education (board) voted, pursuant to its authority under G. L.
4 The facts are taken from the statement of agreed facts and exhibits submitted by the parties pursuant to the single justice's reservation and report.
4
c. 69, §§ 1D and 1E, to adopt the common core standards and
replace the then-current Massachusetts curriculum frameworks in
English language arts and mathematics; the vote to adopt was
contingent on "augmenting and customizing" the common core
standards "within the [fifteen] percent allowance"5 for State
specific content (July vote). The board directed the
commissioner to present recommendations for modifying and
augmenting the common core standards with State-specific content
within the permissible fifteen per cent range no later than
October, 2010, after which the commissioner was to solicit
public comment. The commissioner also was directed to propose
to the board a final version of the standards, including State
specific content, and upon the board's approval, they would
become the new "Massachusetts Curriculum Frameworks for English
Language Arts and Mathematics." On December 21, 2010, following
a public comment period, the board voted unanimously to adopt
the proposed new "Massachusetts Curriculum Framework for English
Language Arts and Literacy, Incorporating the Common Core State
Standards," and the proposed new "Massachusetts Curriculum
5 If a State, through an authorized governmental entity (here, the board) adopts the Common Core State Standards (common core standards), the State has agreed that they will account for eighty-five per cent of the total number of standards in a particular subject area, which provides the State with the option to adopt up to fifteen per cent in additional standards. See State Adoption of the Common Core State Standards: the 15 Percent Rule, at 1 (Mar. 2012), available at http://files.eric. ed.gov/fulltext/ED544664.pdf [https://perma.cc/2UFD-NKVX].
5
Framework for Mathematics, Incorporating the Common Core State
Standards" (December vote).
On or before August 5, 2015, sixteen qualified voters
(petitioners) submitted Initiative Petition 15-12 to the
Attorney General. On September 2, 2015, the Attorney General
certified to the Secretary that the petition is in the proper
form and meets the requirements of art. 48; that the measure is
not substantially the same as any measure that had been
qualified for submission to the people at either of the two
preceding biennial State elections; and that the initiative
petition contains only subjects that are related or mutually
dependent and which are not excluded from the initiative process
pursuant to art. 48, The Initiative, II, § 2. The Attorney
General also prepared a summary of the initiative petition to be
used in the process for gathering additional signatures, and
provided the summary to the Secretary. On or before December 2,
2015, the petitioners submitted to the Secretary forms
containing sufficient additional signatures to require that the
Secretary transmit the petition to the Legislature. The
Secretary then transmitted the petition to the Clerk of the
House of Representatives, and the petition was assigned bill No.
H.3929, entitled "An Act relative to ending common core
education standards." The Legislature has not enacted the
measure that the petition proposes. If the petitioners submit
6
the requisite number of signatures to the Secretary by July 6,
2016, the Secretary intends to include the petition in the
Information for Voters Guide and to include the substance of the
proposed measure on the November, 2016, ballot.
On January 22, 2016, the plaintiffs filed their complaint
in the county court, seeking relief in the nature of certiorari
and mandamus; specifically, they seek to quash the certification
of the petition and to enjoin the Secretary from including the
substance of the proposed measure on the November, 2016,
Statewide ballot. After the parties filed a statement of agreed
facts, the single justice reserved and reported the case for
consideration by the full court.
The petition contains six sections.6 Section 1 would
rescind the board's July vote to adopt, contingently, the common
core standards, and would immediately "restore" the
Massachusetts curriculum frameworks in English language arts and
mathematics that were in effect prior to July 21, 2010. Section
2 of the petition would amend the second paragraph of G. L.
c. 69, § 1D (§ 1D),7 to require that (1) the board include, in
6 The full text of Initiative Petition 15-12 is set forth in the Appendix to this opinion.
7 The second paragraph of G. L. c. 69, § 1D (§ 1D), as currently in effect, provides:
"The board shall direct the commissioner to institute a process to develop academic standards for the core
7
the process for developing academic standards, committees
comprised of "teachers and academics" from Massachusetts public
and private colleges and universities; and (2) the commissioner
copyright the "frameworks," granting permission for use only for
noncommercial, educational uses.
Section 3 of the petition would further amend the second
paragraph of § 1D by adding a provision that would (1) require
the board to create three review committees -- one for
mathematics, one for science and technology, and one for English
-- with the members of each committee to be appointed by the
Governor from public and private research universities in
Massachusetts; and (2) prohibit the board from approving any
"frameworks" unless the pertinent review committee "warrant[s]
subjects of mathematics, science and technology, history and social science, English, foreign languages and the arts. The standards shall cover grades kindergarten through twelve and shall clearly set forth the skills, competencies and knowledge expected to be possessed by all students at the conclusion of individual grades or clusters of grades. The standards shall be formulated so as to set high expectations of student performance and to provide clear and specific examples that embody and reflect these high expectations, and shall be constructed with due regard to the work and recommendations of national organizations, to the best of similar efforts in other states, and to the level of skills, competencies and knowledge possessed by typical students in the most educationally advanced nations. The skills, competencies and knowledge set forth in the standards shall be expressed in terms which lend themselves to objective measurement, define the performance outcomes expected of both students directly entering the workforce and of students pursuing higher education, and facilitate comparisons with students of other states and other nations."
8
by a two-thirds vote that the frameworks are equivalent to the
standards of the most educationally advanced nations as
determined by the Trends in Mathematics and Sciences Study."8
Section 4 of the petition would amend the third paragraph
of G. L. c. 69, § 1I (§ 1I),9 to require, with respect to the
8 The Trends in International Mathematics and Sciences Study (TIMSS) is a series of international assessments of the mathematics and science knowledge of students in several countries. The National Center for Education Statistics of the United States Department of Education administers the TIMSS in the United States. See Institute of Education Sciences, National Center for Education Statistics, Trends in International Mathematics and Science Study (TIMSS), Overview, http://nces.ed.gov/timss/ [https://perma.cc/7D5S-FEPC]. Although section 3 of the initiative petition does not include the word "international," we assume that the petition intends to refer to TIMSS as the proposed benchmark for academic standards.
9 General Laws c. 69, § 1I (§ 1I), provides in relevant part:
"The board shall adopt a system for evaluating on an annual basis the performance of both public school districts and individual public schools. . . .
"The system shall be designed both to measure outcomes and results regarding student performance, and to improve the effectiveness of curriculum and instruction. In its design and application, the system shall strike a balance among considerations of accuracy, fairness, expense and administration. The system shall employ a variety of assessment instruments on either a comprehensive or statistically valid sampling basis. Such instruments shall be criterion referenced, assessing whether students are meeting the academic standards described in this chapter. . . . Such instruments shall provide the means to compare student performance among the various school systems and communities in the commonwealth, and between students in other states and in other nations, especially those nations which compete with the commonwealth for employment and economic opportunities. . . .
9
comprehensive diagnostic assessments of individual students
conducted on an annual basis,10 the annual release, before the
start of each school year, of all of the previous academic
year's test items, including all test questions, all constructed
responses, and all essays, for each grade in which the
diagnostic assessment tests were administered and for each
subject tested, "[i]n order to better inform the teachers and
administrators about the diagnostic assessments."11

"In addition, comprehensive diagnostic assessment of individual students shall be conducted at least in the fourth, eighth and tenth grades. Said diagnostic assessments shall identify academic achievement levels of all students in order to inform teachers, parents, administrators and the students themselves, as to individual academic performance. The board shall develop procedures for updating, improving or refining the assessment system."
10 The Massachusetts Comprehensive Assessment System (MCAS) test qualifies as a "comprehensive diagnostic assessment" and is "used as the high school competency determination, or graduation requirement." Student No. 9 v. Board of Educ., 440 Mass. 752, 759 (2004). The MCAS test was administered initially in 1998, and, beginning with the graduating class of 2003, high school students must achieve a set minimum scaled score on the English language arts and mathematics grade 10 MCAS test as a graduation requirement. Id.
11 The final sections of the initiative petition provide that "the several provisions of this Act" are independent and severable (section 5), and that "[t]his Act" is to take effect "immediately upon coming law" (section 6). We do not discuss either of these sections further except to note that the severability provision in section 5 is part of the measure proposed in the petition, and would only be operative if enacted into law. This severability provision does not authorize this
10
The plaintiffs allege in their complaint that Initiative
Petition 15-12 was improperly certified by the Attorney General
because the petition does not comply with art. 48 in several
respects. In particular, the plaintiffs claim that (1) the
petition contains subjects that are neither related nor mutually
dependent in violation of art. 48, The Initiative, II, § 3; (2)
the petition does not propose a "law" as required by art. 48,
The Initiative, II, § 1, insofar as it proposes to rescind the
board's July vote, a vote that had no operative effect because
final board approval of the common core standards did not occur
until the December vote; and (3) it does not include the
requisite enacting language prescribed by G. L. c. 4, § 3.
2. Discussion.12 a. Standard of review. A challenge to
the decision by the Attorney General to certify an initiative
petition is reviewed de novo. See Abdow v. Attorney Gen., 468
Mass. 478, 487 (2014). See also Opinion of the Justices, 262
Mass. 603, 606 (1928) ("The certificate of the Attorney General
court to approve the Attorney General's certification of some sections of Initiative Petition 15-12 while disapproving others.
12 In Bogertman v. Attorney Gen., 474 Mass. 607, 610-612 (2016), we summarized the process and standards for enactment of a measure by popular initiative petition and the duty of the Attorney General under art. 48, The Initiative, II, § 3, to review and certify that the petition meets the criteria set forth in art. 48, The Initiative, II, §§ 1-2. There is no need to repeat the discussion in this case, but it provides the necessary framework for our consideration of the plaintiffs' challenges to the initiative petition before us here.
11
concerns merely matters of form. . . . Whatever fails to
possess elements indispensable for enactment or for submission
to the people cannot be made into a 'law' by such certificate").
In conducting our review, we bear in mind "the firmly
established principle that art. 48 is to be construed to support
the people's prerogative to initiate and adopt laws." Carney v.
Attorney Gen., 451 Mass. 803, 814 (2008) (Carney II), quoting
Yankee Atomic Elec. Co. v. Secretary of the Commonwealth, 403
Mass. 203, 211 (1988).
b. Relatedness. Pursuant to art. 48, The Initiative, II,
§ 3, the Attorney General may only certify petitions that
contain subjects "which are related or which are mutually
dependent" (related subjects requirement). The plaintiffs argue
that the petition does not comply with this requirement. We
agree. In Carney v. Attorney Gen., 447 Mass. 218, 225-232
(2006) (Carney I), the court, informed by review of the
proceedings of the State Constitutional Convention of 1917-1918,
summarized the purpose of the related subjects requirement. We
stated:
"The relatedness limitation requires the Attorney General to scrutinize the aggregation of laws proposed in the initiative petition for its impact at the polls. At some high level of abstraction, any two laws may be said to share a 'common purpose.' The salient inquiry is: Do the similarities of an initiative's provisions dominate what each segment provides separately so that the petition is sufficiently coherent to be voted on 'yes' or 'no' by the voters?
12
". . .
"The language, structure, and history of art. 48 all suggest that any initiative presenting multiple subjects may not operate to deprive the people of a 'meaningful way' to express their will. . . . It is not enough that the provisions in an initiative petition all 'relate' to some same broad topic at some conceivable level of abstraction. . . . To clear the relatedness hurdle, the initiative petition must express an operational relatedness among its substantive parts that would permit a reasonable voter to affirm or reject the entire petition as a unified statement of public policy. A broader interpretation of the common purpose requirement would undercut the very foundations of the relatedness limitation." (Emphases added; citations omitted.)
Id. at 226, 230-231. See Abdow, 468 Mass. at 499.13 See also
Albano v. Attorney Gen., 437 Mass. 156, 161 (2002); Mazzone v.
13 Abdow v. Attorney Gen., 468 Mass. 478, 499 (2014), also discusses the related subjects requirement. We stated:
"The decisions of this court illustrate how we have endeavored to construe the related subjects requirement in a balanced manner that fairly accommodates both the interests of initiative petitioners and the interests of those who would ultimately vote on the petition. On the one hand, the requirement must not be construed so narrowly as to frustrate the ability of voters to use the popular initiative as 'the people's process' to bring important matters of concern directly to the electorate; the delegates to the constitutional convention that approved art. 48 did, after all, permit more than one subject to be included in a petition, and we ought not be so restrictive in the definition of relatedness that we effectively eliminate that possibility and confine each petition to a single subject. . . . On the other hand, relatedness cannot be defined so broadly that it allows the inclusion in a single petition of two or more subjects that have only a marginal relationship to one another, which might confuse or mislead voters, or which could place them in the untenable position of casting a single vote on two or more dissimilar subjects."
13
Attorney Gen., 432 Mass. 515, 528-529 (2000); Massachusetts
Teachers Ass'n v. Secretary of the Commonwealth, 384 Mass. 209,
219-220 (1981); Opinion of the Justices, 309 Mass. 555, 560-561
(1941).
These cases indicate that at the core of the related
subjects requirement is the condition that the initiative
petition's provisions share a "common purpose," see
Massachusetts Teachers Ass'n, 384 Mass. at 219-220;14 put
slightly differently but making the same point, the petition's
provisions, considered together, must present a "unified
statement of public policy" that the voters can accept or reject
as a whole. See Carney I, 447 Mass. at 231.

Id.
14 See also Abdow, 468 Mass. at 501-504 (common purpose found where petition's provisions all related to limiting scope of permissible gambling in Commonwealth); Albano v. Attorney Gen., 437 Mass. 156, 161-162 (2002) (common purpose found where constitutional amendment banning same-sex marriage would result in uniform application to several different statutes); Mazzone v. Attorney Gen., 432 Mass. 515, 528-529 (2000) (common purpose found where "provisions of the petition relate directly or indirectly to expanding the scope of the Commonwealth's drug treatment programs and . . . 'fairly' funding those programs"); Massachusetts Teachers Ass'n v. Secretary of the Commonwealth, 384 Mass. 209, 218-221 (1981) (related subjects requirement met where provisions of petition all related directly or indirectly to limitation of taxes); Opinion of the Justices, 309 Mass. 555, 560-561 (1941) (where general subject of proposed law was prevention of pregnancy or conception, provisions seeking to provide for "treatment or prescription given to married person," "teaching in chartered medical schools," and "publication or sale of medical treatises or journals" deemed related as sharing common purpose).
14
In two cases, we have concluded that the provisions
contained in a particular initiative petition do not share a
common purpose or reflect a uniform statement of public policy,
and, therefore, did not satisfy the related subjects
requirement. In Opinion of the Justices, 422 Mass. 1212, 1213,
1220-1221 (1996), in response to questions propounded by the
House of Representatives, we considered an initiative petition
that included several provisions designed to reduce and limit
compensation paid to Massachusetts legislators and also one that
would permit the Inspector General to access the records of the
General Court and records kept by the commissioner of veterans'
services. One of the questions posed to the court was whether
the provision relating to the records of the commissioner of
veterans' services was sufficiently related to a subject to
which the initiative petition's other provisions also related.
The petition's drafters asserted that the common purpose among
the provisions was "to make Massachusetts government more
accountable to the people"; counsel to the House of
Representatives proposed that the common purpose might be
legislative accountability. Id. at 1220. We determined that
the common purpose asserted by the drafters was "unacceptably
broad," given that "[o]ne could imagine a multitude of diverse
subjects all of which would 'relate' to making government more
accountable to the people." Id. at 1221. We accepted the
15
alternative proposed purpose of legislative accountability as
reflecting a common purpose that also was consistent with the
title of the initiative petition at issue, but concluded that
"[p]ermitting the Inspector General access to the records of the
commissioner of veterans' services does not relate in any
meaningful way to improving legislative accountability." Id.
Accordingly, because these provisions were not "related or
mutually dependent," the initiative petition did not satisfy the
related subjects requirement. Id.
In the second case, Carney I, the petition proposed to (1)
amend certain criminal statutes to punish those who abused or
neglected dogs, and (2) ban parimutuel dog racing. Carney I,
447 Mass. at 219-220 & n.7. We rejected as too broad the
Attorney General's argument that these were sufficiently related
subjects based on a mutual connection to the goal of promoting
more humane treatment of dogs, see id. at 224, and concluded
that these provisions lacked a sufficient "operational
relationship" between them to permit a reasoned vote on a
uniform public policy question. See id. at 231-232. In that
regard, we observed:
"The voter who favors increasing criminal penalties for animal abuse should be permitted to register that clear preference without also being required to favor eliminating parimutuel dog racing. Conversely, the voter who thinks that the criminal penalties for animal abuse statutes are strong enough should not be required to vote in favor of
16
extending the reach of our criminal laws because he favors abolishing parimutuel dog racing."
Id. at 231. As a result, the related subjects requirement was
not satisfied and the Attorney General's certification of the
petition did not comply with art. 48. Id. at 231-232.
With this background in mind, we turn to Initiative
Petition 15-12. Sections 1 through 3 may be said to share a
common purpose: redefining the contents of the academic
standards and curriculum frameworks for the Commonwealth's
public schools. Section 4, however, which would amend § 1I to
require annual publication of all the previous year's questions,
constructed responses, and essays for each grade and core
subject included in the mandatory diagnostic assessment tests,
has the explicitly stated purpose of better informing educators
about the assessment tests. Thus, the apparent goal of section
4 is to make more transparent the standardized diagnostic
assessment tests and testing process required to be used in
public education, and it is a goal that comes with a significant
price tag: as the Attorney General agreed in oral argument
before this court, implementing section 4 will require the
development and creation of a completely new comprehensive
diagnostic test every year, which means a substantial increase
in annual expense for the board -- an expense to be borne by
17
taxpayers and to be weighed by voters in determining whether
increased transparency is worth the cost.15
An initiative petition properly may contain only subjects
"which are related or which are mutually dependent." Art. 48,
The Initiative, II, § 3. The two subjects in this petition are
clearly not "mutually dependent." In fact, the opposite seems
true. That is, whether the diagnostic assessment tests are
based on the common core standards or some previous set of
academic standards -- the focus of sections 1 through 3 of the
petition -- will not affect in any way the commissioner's
obligation under section 4 to release before the start of every
school year all of the previous year's test items in order to
inform educators about the testing process; the commissioner's
obligation will exist independently of the specific curriculum
content on which the tests are based.
15 The diagnostic assessment tests currently are embodied not only in the MCAS tests, see note 10, supra, but also in the Partnership for Assessment of Readiness for College and Careers (PARCC) assessment tests currently administered as diagnostic assessments in some Massachusetts school districts. See Massachusetts Department of Elementary and Secondary Education, Partnership for Assessment of Readiness for College and Careers, http://www.doe.mass.edu/parcc/ [https://perma.cc/56H8-X85Y]. The record does not contain any information concerning whether there are legal constraints that would limit the commissioner's ability to publish information about the PARCC assessment tests, given that these tests are created and published by an entity that is independent of the board and the Department of Elementary and Secondary Education. See http://www.parcconline. org/about/parcc-inc [https://perma.cc/Q83Y-T6ZY].
18
Nor do the two subjects have sufficient operational
connection, see Carney I, 447 Mass. at 230-231, to be "related"
within the meaning of art. 48. The Attorney General argues that
sections 1 through 3 are "operationally related" to section 4 in
that all four sections serve a common purpose of imposing "new
procedural requirements on the development and implementation of
educational standards," and because "the twin educational facets
of curriculum and assessment are inextricably coupled:
assessments exist to measure the extent to which students are
learning and schools are teaching the material, concepts, and
strategies set forth in the academic standards." We agree that
at a conceptual level, curriculum content and assessment are
interconnected, but the related subjects requirement is not
satisfied by a conceptual or abstract bond. See Carney I, supra
at 230-231. At the operational level, this petition joins a
proposed policy of rejecting a particular set of curriculum
standards, common core, with a proposed policy of increasing
transparency in the standardized testing process at what is
likely to be a greatly increased cost, regardless of the content
of the curriculum standards used. These are two separate public
policy issues.
There is significant public debate in Massachusetts and the
nation about the value of the common core standards; there is
also a great deal of debate about the value of standardized
19
testing.16 That both may be controversial public issues in the
domain of elementary and secondary education, however, does not,
by itself, bring them within the related subjects requirement of
art. 48, The Initiative, II, § 3. The combination of these two
issues in one initiative petition does not offer the voters a
"unified statement of public policy" (emphasis added). See
Carney I, 447 Mass. at 231. In other words, we cannot say that
"the similarities of [the petition's] provisions dominate what
each [provision] provides separately" so that the petition,
considered as a whole, "is sufficiently coherent to be voted on
'yes' or 'no' by the voters." Id. at 226. Rather, because the
issues combined in the petition are substantively distinct, it
is more likely that voters would be in the "untenable position
of casting a single vote on two or more dissimilar subjects,"
Abdow, 468 Mass. at 499, which is the specific misuse of the
initiative process that the related subjects requirement was
intended to avoid. See Carney I, supra at 229-231.
Our conclusion that Initiative Petition 15-12 fails to
satisfy the related subjects requirement of art. 48 will prevent
the proposed measure in the petition from being placed on the
2016 Statewide ballot. Because this is so, we need not consider
the plaintiffs' additional claims that the petition fails to
propose a "law," see art. 48, The Initiative, II, § 1, and that
the necessary enacting language required by G. L. c. 4, § 3, is
absent.

Outcome:

We remand the case to the county court for
entry of a judgment declaring that the Attorney General's
certification of Initiative Petition 15-12 is not in compliance
with the limitations of art. 48 and enjoining the Secretary from
taking steps to place the measure on the ballot in the 2016
Statewide election.