The Thomas More Law Center of Michigan is taking South Dakota to court over Common Core. Taking the same tack as a lawsuit that won in district court in Missouri, the Michigan organization, under the names of South Dakota plaintiffs Amber Mauricio and Shelly Grinager, is now challenging South Dakota’s participation in the Smarter Balanced Assessment Consortium, which produces the tests we now use to ensure that our students and teachers properly hew to the Common Core standards.
In a complaint filed November 10 in Hughes County filed against the Governor, the State Secretary of Education and her office, the State Treasurer and his office, and the State Board of Education, the Thomas More Law Center argues that the SBAC is an illegal interstate compact in violation of Article 1, Section 10, Clause 3, of the United States Constitution:
No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.
An interstate compact violates the Compact Clause if it touches on a political matter and infringes on either federal sovereignty or the rights of states not party to the compact. The plaintiffs don’t seem to meet those standards. They argue that the states are collaborating with the federal Department of Education to undermine Congress’s authority, and that the SBAC puts the screws to non-compact states by subjecting them to the loss of federal Race to the Top grant money. But that’s not a Compact Clause argument; that’s a federal spending authority argument, one that the states already lost in South Dakota v. Dole (1987). The feds have a right to place conditions on states receiving federal funds. If states want highway funding, they have to adopt a minimum drinking age of 21. If states want Race to the Top money, they have adopt common curriculum standards. If Congress doesn’t like the latter condition, it can wake Mike Rounds up and abolish the Department of Education.
A better argument against the SBAC tests is buried in in paragraphs 108–110 of the complaint. Kids take SBAC tests online. The tests are “computer-adaptive,” meaning the computer spits out different questions to different kids based on their responses—get a question right, you get a harder question; get a question wrong, you get an easier question. SDCL 13-3-55 says “Every public school district shall annually administer the same assessment to all students in grades three to eight, inclusive, and in grade eleven.” The plaintiffs say that if Johnny and Sally aren’t getting exactly the same questions, they aren’t taking the same assessment, and SBAC violates South Dakota law. Don’t get all Constitutional, TMLC! Just hoist South Dakota on its own statutory petard. That argument is simpler, more straightforward, and more fun.
Branding itself as the “Sword and Shield for People of Faith” and governed by a Citizens Advisory Board that includes Michele Bachmann, Allen West, and Alan Keyes, the Thomas More Law Center ought to be best buds with the theocrats and culture warriors in Pierre. But now we can let them fight each other over a testing regime and standards that are already dwindling on their own. This is education: give ’em a few years, and they’ll throw Smarter Balanced tests and Common Core in the dustbin and work up a whole new set of standards and tests to keep the consultants busy.