Can Pearson SUE for Damages to its Profits if We Eliminate Standardized Testing from Public Education? It Just Might Have a Claim…

Yes, we all know that corporations “own” politicians and sway legislation. ALEC has gamed that system for decades. But what if that corporate-driven system of manipulating public governance “behind closed doors” to serve corporate interests could take it …one…step…further? What if there was an international TRIBUNAL of corporations that was able to TRUMP national governance, and enforce protection of corporate profits at the expense of human well-being? You’d have the Trans Pacific Partnership (TPP).

I’ll take a giant leap here, as Don Bunger did (who alerted me first to this possibility) and suggest that Pearson (a corporation centered in the United Kingdom), the world’s largest producer of education tests and textbooks has its eye on (and hands in) the Trans Pacific Partnership. Pearson has enormous global power and reach.

What is TPP

According to Robert Reich:

“It would be the largest trade deal in history — involving countries stretching from Chile to Japan, representing 792 million people and accounting for 40 percent of the world economy – yet it’s been devised in secret … The TPP also gives global corporations an international tribunal of private attorneys, outside any nation’s legal system, who can order compensation for any “unjust expropriation” of foreign assets … Even better for global companies, the tribunal can order compensation for any lost profits found to result from a nation’s regulations. Philip Morris is using a similar provision against Uruguay (the provision appears in a bilateral trade treaty between Uruguay and Switzerland), claiming that Uruguay’s strong anti-smoking regulations unfairly diminish the company’s profits … The foreign subsidiaries of U.S.-based corporations could just as easily challenge any U.S. government regulation they claim unfairly diminishes their profits.”

For example, if Uruguay can be penalized by Phillip Morris for creating an anti-smoking campaign what would stop Pearson from suing the United States for reducing (dare I hope….eliminating) standardized k-12 testing? The TPP agreement would give big corporations and Wall Street banks a way to eliminate any and all laws and regulations that get in the way of their profits.

Proponents of TPP want ‘‘more international protection when it comes to their intellectual property and other assets,’’ yet also seek ‘‘less protection of consumers, workers, small investors, and the environment, because they interfere with their profits.’’

Blogger Ken Previti had TPP on his radar in 2013 pointing out, “So, if we pass a law that requires our state to ‘Buy American’ or a law which regulates emissions of greenhouse gas, protects water supplies, or a law which protects workers’ rights, or consumer health, a corporation based in Korea or Australia could sue to collect damages.”

Let’s postulate for a moment that TPP (currently in its final phases of negotiations between the US, the EU, Mexico, Canada, Japan, Singapore and seven other countries) actually holds water (under public radar and in secrecy….which it is) and the testing refusal movement continues to grow in the United States. Just as we are nearing a tipping point and as states, one by one, are crafting legislation to roll back testing, we might foresee Pearson FORCING states to REVISE their legislation and SUE the United States into maintaining Pearson contracts for all testing.

How can they do this?

Don Bunger, WA BAT suggests, “If Pearson can make the case to TPP’s Tribunal for a quasi breach of contract that will harm foreign companies and subcontractors, then this means that TPP will be the book end to the damage that POTUS and Duncan have set up … It will be the rule of the land backed up by a foreign corporate tribunal that will not give the democratic elected school boards, nearly 15,000 of them, a say as to who will do the testing in their school district.”

Bunger also points out that: “Under the NAFTA–Trans Pacific Partnership Tribunal which will run by and staffed only by Corporations, neither the Supreme Court of the US, the House and Senate in DC, POTUS  and no state legislature will be able to refuse Pearson being able to be the de facto test preparer for every state, a status that it now enjoys.”

How does TPP work? For starters, “500 corporations and banks sit on advisory committees with access to various chapters.”

ALEC has crafted model legislation asking legislators to “fast track” TPP, see here.

Here is Don’s full letters to his state senators:

Dear Senators Murray and Cantwell:
I am writing you to request a copy of the draft text of the Trans-Pacific Partnership (TPP) agreement. The TPP would be the most significant international commercial agreement since the World Trade Organization with broad implications for U.S. jobs, food safety, financial regulation, medicine prices and more.

Here is my urgent concern. Pearson LLC has 40,000 employees in 80 countries, many of which are in TPP locations. Should a school board, state or the DOE in Washington D.C. decide to cancel a Pearson PreK-12 testing contract it would, as I understand it, be possible for Pearson through the Investor-State Dispute Settlement System to take the contract cancellation up with a corporate run tribunal. This could result in overturning the wishes of a school board, state or federal DOE without any formal oversight by our state or federal legislatures or the Supreme Court. Thus, Pearson or any other foreign corporation who had operations in a TPP location could, with the aid of the TPP Tribunal become the de facto corporation in charge of public school testing in America. Please send me a copy of the Trans-Pacific Partnership draft texts, and information about your leadership to represent the public interest throughout this process.”

Corporate lobbying groups, including the U.S. Chamber of Commerce, and Republican leaders in Congress strongly support the deal, while congressional Democrats are overwhelmingly opposed. TPP’s backers say the final deal will boost economic growth, while critics argue that it could exacerbate income inequality and undermine key financial and environmental regulations. So if the “TPP investment chapter (can) grant multinational companies the political power to challenge domestic laws and regulations before an international tribunal” what would stop global Pearson from challenging anti-testing regulations?

(As a side note here) Another issue that warrants further investigation beyond this one post is the effect TPP may have on the colonization of public education by international privately managed charter schools. New Zealand Post Primarary Teacher’s Association seemed concerned enough about this to include it in their recommendations:

“That the Select Committee seek to provide New Zealanders with assurances that a future sovereign government will not be prevented by the Trans Pacific Partnership Agreement from closing a charter school, should voters determine to end the experiment.”

A book by Jane Kelsey also notes how, “foreign firms running privatized public services such as charter schools … would enjoy special protection.”

According to Wiki Leaks:

“The Investment Chapter highlights the intent of the TPP negotiating parties, led by the United States, to increase the power of global corporations by creating a supra-national court, or tribunal, where foreign firms can “sue” states and obtain taxpayer compensation for “expected future profits”. These investor-state dispute settlement (ISDS) tribunals are designed to overrule the national court systems. ISDS tribunals introduce a mechanism by which multinational corporations can force governments to pay compensation if the tribunal states that a country’s laws or policies affect the company’s claimed future profits. In return, states hope that multinationals will invest more. Similar mechanisms have already been used. For example, US tobacco company Phillip Morris used one such tribunal to sue Australia (June 2011 – ongoing) for mandating plain packaging of tobacco products on public health grounds; and by the oil giant Chevron against Ecuador in an attempt to evade a multi-billion-dollar compensation ruling for polluting the environment. The threat of future lawsuits chilled environmental and other legislation in Canada after it was sued by pesticide companies in 2008/9. ISDS tribunals are often held in secret, have no appeal mechanism, do not subordinate themselves to human rights laws or the public interest, and have few means by which other affected parties can make representations.”

Yes. I know. Some of this may sound far-fetched. But then again, ten years ago if you had told me that children with severe physical and cognitive delays would forcefully have a pencil placed in their hands in order to take a test when they cannot even write their own name, that Pearson could and would spy on students Twitter accounts, and that teachers would be sentenced to 20 years in prison on “racketeering” for erasing bubble dots, I would have said that was all far-fetched too. Nothing that Pearson can or will do should be underestimated by us ever again. If you needed yet another reason to reject a test-driven system of public education…this might be it.