South Dakota Judge Rules Against Parents in Common Core Lawsuit


The Sioux Falls Argus-Leader reported on Tuesday that a circuit court judge found that the state of South Dakota did not violate any state or federal laws when adopting the Common Core State Standards and joining the Smarter Balanced Assessment Consortium.

They write:

Two South Dakota parents filed a suit against Gov. Dennis Daugaard and the state in November arguing that South Dakota’s involvement in an multi-state assessment group aligned with Common Core standards was illegal.

Last week, Circuit Court Judge Mark Barnett ruled that the state had not violated any federal or state laws.

“The governor was happy to see the judge agree with the state’s position,” Tony Venhuizen, Daugaard’s chief of staff, said in an email Monday.

Parents Amber Mauricio and Shelli Grinager—the plaintiffs in this case—had alleged that the state’s involvement in the Smarter Balanced Assessment Consortium (SBAC) violated a constitutional clause because it lacked congressional approval. The lawsuit was supported by the Thomas More Law Center, a Michigan-based group with strong resistance to Common Core standards.

Court documents summarizing the ruling show that participation in SBAC did not require congressional approval.

The state is free to regulate its education policies, including the decision to freely adopt Common Core standards, according to the court documents. Barnett rejected the plaintiffs’ argument that the state was coerced into accepting Common Core standards.

Mauricio and Grinager also argued that the nature of Smarter Balanced testing was illegal. Smarter Balanced assessments are “computer-adaptive,” meaning questions either get easier or harder depending on a students’ answers.

The two plaintiffs referenced a South Dakota law that requires public schools to administer the “same assessment to all students.” They said if each student answers different questions, they’re not receiving the same assessment.

Court documents reject that argument, saying that if the legislature intended every student in each grade to answer the same questions, the law would have been more specific. As written, law only requires students take the same “assessment,” not the same “questions.”

So much for checks and balances. What I find interesting is that a court in Missouri found the opposite and state lawmakers then defunded it.

In this case in South Dakota when the state wins parents lose. I do hope this ruling is appealed.

Thomas More Law Center Sues South Dakota Over Common Core

Amber-Shelli-Thomas-More-Law-Center-Steps-Up-Attack-on-Common-Core-with-New-Lawsuit-in-South-Dakota-WebsiteContinuing its legal battle to stop the federal government from usurping control over the nation’s elementary and secondary public schools, the Thomas More Law Center (TMLC), a national public interest law firm based in Ann Arbor, MI filed a third lawsuit challenging the constitutionality of a state’s implementation of Common Core and its participation in the Smarter Balanced Assessment Consortium (“SBAC”).

This latest challenge to the Common Core Curriculum and SBAC was filed last week against South Dakota Governor, Dennis Daugaard, and other state officials on behalf of two South Dakota taxpayers, Shelli Grinager and Amber Mauricio.  Shelli Grinager is the mother of three school aged children and Amber Mauricio is the mother of five.

These Plaintiffs seek to stop South Dakota from paying yearly SBAC membership fees totaling over $600,000 by state taxpayers on the grounds that SBAC is an unconstitutional compact. Its creation was never approved by Congress, as required by the Compact Clause, which states that “[n]o state shall, without the consent of Congress . . . enter into any agreement or compact with another state.” The lawsuit claims other violations of federal and South Dakota laws dealing with public education.

Shelli  Grinager, a West River plaintiff, and Amber Mauricio, an East River plaintiff, have both seen their school aged children break down in tears due to the amount of pressure that teachers and schools were subjecting them to in the name of passing the SBAC tests.

Grinager, a former school board member, PTA president and advocate for students and families, has fought against Common Core since the beginning, speaking out against the roll out of the high pressure SBAC tests. Last year, Grinager was forced to start homeschooling her children, after two of her children were denied more challenging math because they had to stick to the rigid Common Core curriculum. She said, “The public school environment has become more about testing our children than teaching them.”

Amber Mauricio’s fight against Common Core began when she attempted to “opt out” her children from the SBAC testing. The school ignored her opt out request and tested her children anyway.  Mauricio was alarmed by the nature of some Common Core aligned questions asked of her children which sought to examine how they would behave in certain situations and what their home life is like.

As in the two earlier lawsuits, which challenged the constitutionality of SBAC and Common Core in North Dakota and West Virginia, the Thomas More Law Center partnered with D. John Sauer of the James Otis Law Group based in St. Louis, MO.   South Dakota attorney Robert J. Rohl of Johnson Eiesland Law Offices, PC located in Rapid City, SD is assisting as local co-counsel.

The lawsuit was filed in the Hughes County Circuit Court.

Click here to read the South Dakota Complaint

The North Dakota and West Virginia lawsuits follow the success of an earlier lawsuit filed by Mr. Sauer that stopped Missouri’s implementation of Common Core. That case is currently on appeal.  The Thomas More Law Center filed a friend of the court brief in support of upholding the Missouri district court decision (Editor’s note: The Missouri case is no longer on appeal as the Common Core opponents received a positive ruling).

Richard Thompson, President and Chief Counsel of the Thomas More Law Center, commented on behalf of the Law Center, “Employing an insidious bureaucratic system, the Federal Government directs what and how American students learn, and effectively eliminates the fundamental rights of parents to control the education of their children.”

In school districts across the country, administrators subject children, who obey their parents’ wishes and decline to participate in Common Core standardized testing, to unbelievable punishments.  Students have been suspended, refused entrance into their classrooms, refused bathroom privileges, stripped of their academic and extracurricular honors and awards, removed from athletic participation, and punished with “sit-and-stare” policies. “Sit-and-stare” is a practice that forces students to sit at their assigned desk with no materials, books, or paper in silence for multiple hours during testing.

Forty-three states initially joined either SBAC or the Partnership for Assessment of Readiness for College and Careers (“PARCC”), a cornerstone for Common Core implementation under direction of the federal government. However, due to growing opposition from parents and teachers, several states have since canceled their membership and endured punishments for doing so.

As a part of its efforts to help parents combat Common Core, the Thomas More Law Center developed a Test Refusal and Student Privacy Protection Form and a Common Core Resource Page as a general reference and guide.

Common Core as an Election Issue

polling-boothI spoke with a reporter from Education Week yesterday about the status of different pieces of legislation in different states.  While we’re not seeing repeal bills advance like we’d like to see I’m still encouraged by the number of bills and any movement forward.  Just seeing how this issue has advanced since the last legislative session has been encouraging, and seeing how much grassroots activism has grown has been exciting.

We’re playing the long game there.  This is not an issue, unfortunately, that will be won overnight.  Legislators who are not dealing with the Common Core in their states may end up feeling heat at the ballot box.

The reporter asked if that was a big expectation out of the issue that it could actually make an impact in elections?

I don’t know… ask Tony Bennett.

Yes and no.  I will make no grand predictions or promises.  I just know that state legislators and Governors could open themselves up for a challenge.

For instance South Dakota Dennis Daugaard (R) has a primary challenger in former State Representative Lori Hubbell, she has made the Common Core one of her top issues.  In Iowa’s U.S. Senate Republican primary race, Mark Jacobs is taking heat for his support of Common Core, and two of his competitors Sam Clovis and Matt Whitaker have released videos stating their position on it.  Another example is Mississippi Conservatives PAC attacking State Senator Chris McDaniel, who is running for U.S. Senate, about his votes in favor of funding the Common Core State Standards.

I’m sure there are a number of state legislative races that I’ve not even heard about.

I was reminded yesterday about an article that Joy Pullmann wrote for The Federalist – “Common Core: The Biggest Election Issue Washington Prefers to Ignore.”  She wrote about some bad behavior that has occurred among elected officials who have shown total and utter disregard of the electorate:

Before one of these hearings in October, Ohio House Education Chairman Gerald Stebelton (R-Lancaster) told reporters Common Core critics “don’t make sense.” He also called opposition a “conspiracy theory.” In Wisconsin the same month, state Sen. John Lehman (D-Racine) told a packed audience their hearings were “crazy” and “a show,” and asked, “What are we doing here?” When Michigan’s legislature reinstated Common Core funding after several hearings, State Rep. Tim Kelly (R-Saginaw County) said, “[W]e’ve marginalized, quite frankly, the anti-crowd into a very minute number.” Delaware Gov. Jack Markell (D) has called opponents a “distract[ing]” “fringe movement.”

Then she pointed out the political games being played in Florida:

Florida’s state board of education received 19,000 public comments on Common Core in October. Officials still have not formally reviewed those, and lawmakers including Gov. Rick Scott (R) told constituents the comments were part of lawmakers reconsidering Common Core after dropping its national tests. The day before the comment period closed, however, Florida Deputy K-12 Chancellor Mary Jane Tappen said on a webinar, “We are moving forward with the new more rigorous [Common Core] standards. So, if anyone is hesitating or worried about next year, the timeline has not changed.”

In November, Florida Senate President Don Gaetz said of Common Core: “You can’t dip [the mandates] in milk and hold them over a candle and see the United Nations flag or Barack Obama’s face. They’re not some federal conspiracy.” (The Republican hails from Niceville. Really.) When opponents met with Utah Gov. Gary Herbert (R) to discuss their substantive concerns, he asked them, “Is Common Core going to teach gay sex or communism?” according to three people who attended the meeting.

Oklahoma Governor Mary Fallin (R) seems like she cares more about her chairmanship of the National Governors Association than listening to the people.  Will she pay a price when she runs for reelection?  Will Governor Bobby Jindal (R-Louisiana), Governor Chris Christie (R-NJ) and former Governor Jeb Bush (R-FL) pay a price if they decide to run for President?

I was asked by that same reporter if we could gage the success of our movement based on results at the ballot box.  I think that may be hard to gauge.  In the case of the Indiana Superintendent of Public Instruction race we definitely could see Common Core as an issue and it was one that Tony Bennett lost.  In primary races the Common Core may very well be a wedge issue to help us see daylight in between candidates that are closely aligned.  The quality of candidate is also something to take into consideration.  It is hard to unseat incumbents, but especially if you don’t  have a quality candidate running.  Running on a single issue is not enough, but it a candidate’s position against the Common Core can make a difference for a quality candidate.

Incumbents being challenged whether they are Governors or legislators can make a difference however so this is definitely one front on the war on Common Core.  The message that is sent at the ballot box seems to be the only message some politicians understand.

Photo credit: Ben Sutherland (CC-By-2.0)

South Dakota Q&A: South Dakota’s History for Common Core

south dakota flagI participated in a forum last week in Sioux Falls, SD.  Questions were complied for two months prior and the panelists were given the questions (summarized) a couple of days prior to the event.  Unfortunately since forum was not moderated and rules put in place regarding time limits South Dakota Education Secretary Melody Schopp and former South Dakota Education Secretary Rick Melmer were able to set the tone of the forum early.  Dr. Schopp was able to go first.  Hardly any of the questions were answered, and I know many of the attendees were frustrated.  I was as well since I only was able to touch the mike twice and was actually skipped over at one point.  You can read a recap here.

I made a commitment to those in attendance that I would do my best to answer the questions that Dr. Schopp and Dr. Melmer didn’t.  I’m going to break these up into several articles (there were a lot of questions!).  The first installment is on South Dakota’s History for the Common Core.  I’d like to preface this article with encouragement to check out the local experts – South Dakotans Against Common Core is an excellent resource.

Questions will be in bold, my answers italicized….

Who is responsible for bringing the Common Core standards into South Dakota?  The President or the Governor?

The President indirectly and the Governor directly.  Ultimately it was the decision of the South Dakota State Board of Education.  They voted to adopt the Common Core Math and ELA standards on November 29, 2010.  Governor Mike Rounds was aware of the process as it began several months prior and I assume signed the original memorandum of understanding with the Common Core State Standards Initiative and Smarter Balanced Assessment Consortium.  The reason I’m fuzzy on that is because they were adopted with less than two months to go in his last term and I’m not sure when those were signed as I don’t have copies of the documents.  The process definitely started in his administration.

That said Governor Daugaard is complicit as well as he has continued to allow the implementation of the Common Core in South Dakota.

President Obama is complicit indirectly through the Race to the Top grant program (which was an executive earmark within the Stimulus package passed in 2009) which South Dakota did apply for.  The application did state that “high points” would be given if the applicant adopted a set of “college and career-ready standards” developed by a consortium consisting of a majority of states. The Common Core was the only game in town.  How much the Race to the Top funding (which South Dakota did not receive) played in adopting the Common Core in South Dakota is up for debate, but one can’t dismiss it’s role.

Since Governor Rounds is running for U.S. Senate it would certainly be worthwhile to have him explain his role in the adoption of the Common Core and his position today.

When did the South Dakota Legislature vote to accept the Common Core?  Did they pass it unanimously?

First how often do any state legislatures pass anything unanimously?  Second, they didn’t because they didn’t vote at all.  No state legislature voted to adopt the Common Core, this was entirely driven by the executive branch.

Why didn’t anyone know about these standards before they were implemented?

Primarily because the state legislature didn’t vet them and the State Department of Education was primarily focused on obtaining feedback from the education community.  Unless you were involved in crafting education policy at that time there was little opportunity for you to know about this.  It wasn’t on most of the media’s radar at the time.  So unless you read Education Week or trolled the South Dakota Department of Education’s website (which we now know is not a bad practice!) you probably wouldn’t hear about it anywhere else.  Had the State Legislature been given the chance to weigh in it could have brought more attention to the Common Core, and good state legislators should be soliciting feedback from their constituents.

State Senator Phyllis Heineman (R-Sioux Falls) made the argument that the State Legislature has never set standards.  I share here why I believe that is not a good practice.

When Governor Daugaard brought the Common Core into our state, who among you were serving in the legislature or the South Dakota Department of Education?  Did any of you have the opportunity to read through the standards?  Where the standards fully written in a final format at the time we adopted the Common Core?

Of the panelists (myself being an Iowan excluded) State Representative Jim Bolin (R-Canton) was in the South Dakota House of Representatives and serving on the House Education Committee.  State Senator Ernie Otten (R-Tea) was not elected until 2012.  State Senator Phyllis Heineman was not elected to the South Dakota State Senate until November of 2010.  She served in the State House from 1999-2008.  She was a member of the South Dakota State Board of Education during this process however.  Dr. Schopp was employed by the South Dakota Department of Education at the time even though she was not appointed as Education Secretary until 2011.  Dr. Rick Melmer served as Education Secretary until 2008 (development didn’t start until 2009). 

State Representative Bolin said he did not have an opportunity and heard very little from the Department regarding the Common Core.  State Senator Heineman at the forum said she read them.  I will assume Dr. Schopp did since she worked for the Department.  I know State Representative Otten did not at the time.  With Dr. Melmer I’m not sure if he read them before adoption.  I personally read them after the fact when this finally hit my radar – by that time 46 states had adopted them in full or in part (Minnesota only adopted the ELA standards).

Where the standards fully written? Yes the final draft of the Common Core was released in May of 2010.  South Dakota did not approve the standards until November.

Did the State Board of Education have open meetings to discuss the Common Core, looking for the opinion of others?  Where there public meetings?  Who was involved, when, and where were they held?

Yes, all state board meetings are open to the public.  The process, as Dr. Schopp described it, didn’t seem to focus on the opinion of anyone beyond classroom teachers the Department hired to review them in their draft and final forms.  I could not find minutes for these teacher Common Core workgroups.

Did the public know the importance of attending at the time?  Probably not.

Here is what I could find on the department website, I am not sure if the months I’m missing means they didn’t meet, neglected to have minutes recorded or they were in executive session.

According to the Department website the Board of Education didn’t first discuss the Common Core until the September meeting.

Here is how the official minutes described the adoption of the Common Core (November 2010)

10.0 Public Hearing – Adoption of Common Core Standards for English language arts, and math 1:03 p.m.

President Duncan asked for any Proponents to the adoption. Written comments that were submitted through e-mail were provided to board members. Becky Nelson from Dept. spoke in favor of adopting the common core and Fred Aderhold from the Sioux Falls school district shared his approval for the adoption on behalf of the Sioux Falls school district. Having no other proponents come forward Duncan asked for opponents. Steve S_____ from Mitchell came forward to express his disapproval of adopting the Common Core Standards and why. No other proponents came forward at this time and President Duncan asked for a motion.

Motion: Motion by Richard Gowen and seconded by Phyllis Heineman to approve the proposed adoption of Common Core Standards.

Conclusion: The motion carried

Real descriptive eh?  A public hearing that had only two members of the public speak?  No idea how many attended.

Two meetings… a short public forum during the second meeting and they’re adopted!  How many of the board of education members read the standards prior to voting?  Who knows?

What steps were taken to include the opinions & expertise of any local school boards, teachers, parents and/or state legislators before adopting Common Core?

Dr. Schopp said school districts were communicated with, a public forum was held, and teachers had feedback (I could not find teacher workgroup minutes, and she didn’t describe how school districts were kept informed.  They started offering a series of webinars in December 2010, but that was after the adoption of the Common Core.  You can see above what the “public forum” entailed.  Considering the board of education only had two months itself to consider the Common Core State Standards I find it very hard to believe there was a concerted effort to solicit feedback from the public.

Is it true that several educators from the state of South Dakota had the opportunity to approve of the common core standards?  Who were these educators?  When and where were the meetings held?

According to the Department yes.  I don’t know; minutes for these meetings are available (unless I’m just not using the right search terms).  I would recommend a South Dakota resident submit a Freedom of Information request (or whatever South Dakota calls it) to see if you can get that information from the Department.

According to the South Dakota Department of Education website, the South Dakota Board of Education moved to adopt the Common Core Standards on November 29, 2010.  Does this mean the Legislature had no knowledge and no debate about the Common Core?

I can’t speak authoritatively about how many legislators knew, how much they knew or when, but I can say the State Legislature did not debate or vote on these standards.

Next in this series will be answers on Data Mining & Sharing & Federal Involvement.