Missouri’s Membership in Smarter Balanced Found Unconstitutional

MissouriStateFlag1Fred Sauer, Anne Gassel & Gretchen Logue are co-plaintiffs in a lawsuit against Missouri Governor Jay Nixon over the state’s membership in Smarter Balanced.  The judge in their case, Cole County Circuit Court Judge Daniel Green, ruled in favor of the plaintiffs in Sauer v. Nixon and deemed Missouri’s participation in the Smarter Balanced Assessment Consortia illegal.  He ruled that the fees paid by the state to Smarter Balanced Assessment Consortia are unlawful under the Compact Clause of the U.S. Constitution as well as “state and federal law.”

The Compact Clause of the U.S. Constitution states that “No State shall, without the consent of Congress … enter into any Agreement or Compact with any other State.”  In their lawsuit, Sauer, Gassel, and Logue contended that the Smarter Balanced Assessment Consortium is just the sort of interstate agreement that must be authorized by the U.S. Congress under this Clause.  The lawsuit contends that the consortium threatens the authority of the U.S. Congress because the federal Department of Education’s action in creating the consortium contravene Congressional prohibitions on the creation of a national curriculum.  Their lawsuit also contended that the consortium threatens the freedom and authority of non-member states by attempting to create a de facto education “cartel” aligned with Common Core.

Green has permanently enjoined the State of Missouri from making payments in the form of membership fees to Smarter Balanced.  Green back in December had placed a restraining order on payments to Smarter Balanced.  Now the state will have to withdraw from the consortia.

The state had budgeted, according to the Associated Press, $4.3 million for member dues this fiscal year.  Missouri Attorney General Chris Koster’s office is reviewing the case, and the state is expected to appeal.

Missouri Activists Sue State of Missouri Over Common Core Payments

Gretchen Logue  and Anne Gassel  of the Missouri Coalition Against Common Core have joined Fred N. Sauer in filing a taxpayer lawsuit against Governor Nixon, Commissioner Nicastro, and other state officials.  The lawsuit challenges Missouri’s payment of taxpayer money to the Smarter Balanced Assessment Consortium, a consortium of states that is implementing tests aligned to the Common Core State Standards (“Common Core”).

Logue and Gassel’s lawsuit alleges that the Smarter Balanced Assessment Consortium is an unconstitutional interstate compact that was not approved by Congress, in violation of the Compact Clause of the U.S. Constitution, Article I, Section 3, Clause 10.  The suit also alleges that Governor Nixon and Commissioner Nicastro’s course of conduct in committing Missouri to Common Core was in violation of numerous federal and state statutes.

By passing HB 1490 by an overwhelming majority, the Missouri state legislature effectively repudiated Common Core, requiring it to be replaced by 2016.  But Missouri has not withdrawn from the consortium of states implementing Common Core aligned tests.  According to public records, the Department of Elementary and Secondary Education plans to send millions of dollars of taxpayer funds to the Smarter Balanced consortium in 2015, which will be used to support the implementation of Common Core in numerous other states.  These payments are illegal under the federal constitution, federal statutes, and Missouri state law.

Governor Nixon and Commissioner Nicastro engaged in a long course of conduct, in cooperation with the federal Department of Education, to commit Missouri’s public schools to Common Core without legislative approval.  The “consortium” of States implementing tests aligned with Common Core constitutes an illegal end-run around federal statutes forbidding the federal Department from implementing a national test or curriculum.  Even though Missouri is committed to exiting Common Core, DESE nevertheless continues to participate in SBAC and to administer the SBAC common core aligned tests in this state.

“The Missouri Legislature and Missouri voters have rejected Common Core.  Yet DESE continues to plan to send millions of dollars of payments to the Smarter Balanced Assessment Consortium to support the implementation of Common Core in other states.  The consortium is an unconstitutional entity, and these payments are illegal.  We will continue to fight to protect Missouri taxes from being spent for this illegal purpose,” said Gassel and Logue.