Judge Barnett Rejects Common Core Lawsuit, Says SD Participation in Testing Compact Legal

Last November, the Thomas More Law Center of Michigan got two South Dakota moms to be their front for suing the state over its participation in the Smarter Balanced Assessment Consortium, which puts together the standardized tests we use to make sure our kids are meeting the Common Core standards. Last week, the Thomas More Law Center lost.

Let us pause for a moment and enjoy the fact that Marty Jackley’s office is doing a better job of winning cases against right-wingers than for right-wingers.

The Thomas More Law Center argued that the Smarter Balanced Assessment Consortium (branded like Fox News—”Fair and Balanced”?) violates the Constitution’s prohibition on interstate compacts. Jackley predecessor-turned-Judge Mark Barnett says the plaintiffs’ alleged facts “seem thin and require artful interpretation” [p. 7]. Judge Barnett agrees that the Smarter Balanced Assessment Consortium is a compact, but he affirms the analysis I offered last November that the SBAC neither usurps federal authority nor subjects states to excessive federal authority. Judge Barnett finds that South Dakota’s agreement with the SBAC does not require it to administer the Smarter Balanced tests; our use of the Smarter Balanced tests and the Common Core standards on which they are based is entirely up to us:

It is worth nothing that the State has complete freedom to regulate its education policies concerning assessments and standards. The State chose to adopt Common Core state standards. The next step was for the State to seek a standardized test which reflects those achievement standards. The State chose the Smarter Balanced test (over the PARCC test or any of the many other tests provided). The State made a broad sea-change in its educational policy and adopted the Common Core standards. If the State decides to change their educational policies and standards again, it is free to withdraw from SBAC and re-instate prior standards or adopt new standards. Ultimately, it is the State’s choice. Because it voluntarily adopted new standards, the State voluntarily joined a consortium to help defray the cost of developing an assessment test while also having some input and decision-making responsibility as a governing member [Judge Mark Barnett, Memorandum Decision, Mauricio and Grinager v. Dennis Daugaard et al. (Case No. 32CIV15-000292), 2016.06.13, p. 16].

Judge Barnett supports his argument by pointing to the withdrawal of Oklahoma, Missouri, Wisconsin, and South Carolina from the consortium. He also notes that Texas never adopted Common Core standards. If they can do it, so can we. We exercised our sovereignty by adopting Common Core and joining SBAC; we can still exercise our sovereignty by quitting Common Core and SBAC whenever we want.

District 16 House candidate Kevin Jensen can joke about “Obama-Core” all he wants, but he and the Thomas More Law Center can’t blame President Obama for Common Core and the Smarter Balanced tests. They need to blame Dennis Daugaard, his Department of Education, and the South Dakota Legislature, who have all willingly and, per Judge Barnett, quite legally bought into the churning charade of standards and tests, standards and tests.

p.s.: Judge Barnett also rejects an argument from the plaintiffs that I actually liked, their contention that the SBAC computer-adaptive tests violate state law by giving students different questions based on their performance question by question. Judge Barnett notes that the statute to which plaintiffs appeal, SDCL 13-3-55, requires that schools give students the “same assessment”, not the “same questions.”

17 Responses to Judge Barnett Rejects Common Core Lawsuit, Says SD Participation in Testing Compact Legal

  1. Steve Sibson

    “They need to blame Dennis Daugaard, his Department of Education”

    Partially true. It was under the Rounds administration that Common Core was adopted. And there were several attempts in the South Dakota Legislature during the Daugaard administration that tried to undo that decision and to prevent the implementation of Smarter Balance. It was a combination of the SDGOP Establishment, South Dakota Democratic legislators, the South Dakota teachers Union, the SD Association of School Boards, the SD Association of Administrators, and at times the SD Chamber of Commerce that stood in the way. Why? Because they wanted federal money. Obama bought South Dakota out with taxpayers money. If you want to call getting our federal tax dollars back to fund education a voluntary process, then you have also bought off on false propaganda that promotes coveting and the rejection of righteous principles. Greed and legalized corruption runs our governments, and that goes for Democrats as much as Republicans.

  2. Donald Pay

    Sibby: “It was a combination of the SDGOP Establishment, South Dakota Democratic legislators, the South Dakota teachers Union, the SD Association of School Boards, the SD Association of Administrators, and at times the SD Chamber of Commerce that stood in the way.”

    In other words just about anybody that matters supported Common Core. The standardized testing component was different, but the kooks tried to lump everything together in one big conspiracy, and turned off everyone who might have worked with them. No wonder they got nowhere.

    At any rate, Sibby needs to get up to date. The new federal education bill carves out greater flexibility on standardized testing and accountability, but implementing that flexibility has been an issue, with the feds still clinging to standardized testing as conservatives cling to guns. We need some commonsense reforms in both guns and standardized tests. Here’s some new info on the regulatory problems from Fair Test.


  3. Steve Sibson

    “anybody that matters”

    The economic elites’ label for them are “stakeholders”. They used to be called special interests. Those standing up for the common interests are labeled “kooks”.

    “Sibby needs to get up to date.”

    Yes, I am about done with Chad Hill’s Covert Propaganda book.

  4. Prolly jackley lawyers many who are very good, just did their job, unlike their starry eyed republican boss .

  5. Judge Barnett made a good call. Can we now have a break from the absurd objections to the Common Core?

  6. Stace Nelson

    Correct me if I am wrong; however, SD’s ranking in educational success has gone way down from its height in the 70’s of being in the top 10 in the nation, when we enjoyed local control of education. Our educational success across the nation has done similarly since the federal Department of Education was created. With that recipe for disaster so evident why does anyone think that the social engineering behind Common Core State Standards is a recipe for anything but further degradation of the education of our children.

    With South Korea and Japan routinely staying in the top 2 positions for math and sciences every year, why would we not look at implementing some of their best practices to help replicate those successes instead of implementing untested, unproven, ideas from non experts?

  7. Careful, Stace: our teacher pay sank to last in the nation by 1985. And the U.S. as a whole pays its teachers less than teachers get worldwide. Shall we derive causation from that correlation?


  8. Steve Sibson

    “And the U.S. as a whole pays its teachers less than teachers get worldwide.”

    My research on Switzerland says otherwise Cory. Respect means more than money. And letting teachers teach instead of being controlled works much better. America’s centralization is the source of our problem. The solution is to decentralize. Without the costs of centralization, we can pay teachers more without hitting the taxpayers up for more money. Sadly the opposite is the agenda here is South Dakota. And that agenda is bi-partisan.

  9. owen reitzel

    Ok Steve. I’ll bite. What has to be decentralized?

  10. Nick Nemec

    The restrooms. Steve wants outhouses placed on the edge of the schoolyard.

  11. Darin Larson

    Stace: who says they implemented “untested, unproven, ideas from non experts?”

    From http://www.usnews.com/news/special-reports/articles/2014/02/27/the-history-of-common-core-state-standards

    “So Napolitano [chair of the National Governors Association NGA)] created a task force – composed of commissioners of education, governors, corporate chief executive officers and recognized experts in higher education – which in December 2008 released a report that . . . would eventually serve as the building blocks of what became known as the Common Core State Standards, now adopted by 45 states and the District of Columbia. . . .

    Following the task force report, the NGA – along with the Council of Chief State School Officers and the nonprofit education reform group Achieve – came together to make sure the goals of the report became a reality. . . .

    While the effort was spearheaded by the NGA, CCSSO and Achieve, representatives from other national organizations were also enlisted for their input, such as the International Reading Association, the National Council of Teachers of Mathematics and members of both the American Federation of Teachers and the National Education Association – the two largest teachers’ unions in the country. . . .

    [T]hose who wrote the standards used the best evidence and research that was available at the time, and also looked to states that either had very high standards, as determined by their performance on international assessments, or had gone through a similar process as the Common Core in recent years. Minnesota and Massachusetts were two high-performing states Linn named, while Georgia and Colorado served as examples of states that had recently developed internationally benchmarked standards. . . . .

    And each draft of the standards was posted online for the public to view. . . . They received more than 10,000 responses.”

  12. Darin Larson

    Going off on a slight tangent, I have wondered for quite some time how Republicans can push for tax cuts that benefit primarily the wealthy, such as the Bush tax cuts and those under Reagan. They often justify these tax cuts on the basis that they allow investments by the wealthy that benefit our economy–so called supply-side economic growth. We will set aside for the moment my argument that demand side stimulation through progressive tax cuts is much more assured to spur economic growth (rich people often put their excess cash in the bank or in the Cayman Islands while poor people spend any extra cash they come across just to live).

    What I don’t understand is if investment is considered important to economic growth by Republicans, why don’t Republicans find it equally important to invest in education to spur economic growth. The productivity of our work force and the capabilities of our entrepreneurs are at least as important to economic growth as increasing capital available for investment.

  13. I sure wish one of those transgendered ladies would win a spot in the legislatures so they could frolic in whatever bathroom the rules allowed. Then Mr. Nelson would have to think twice before running to hide in the head during a vote in which he didn’t have the intestinal fortitude to participate.

  14. mike from iowa

    Wingnuts spout the same non-sense every four years about stimulating the economy and it hasn’t worked yet.

    As for education,they would readily spend some pesos if the schools were privatized.

    Now drop what you are doing and enjoy the solstice full moon rise at 9:11 PM central time. Not sure when the next chance will be.

  15. Donald Pay

    Here’s the reality regarding Stace’s comment that SD’s education standing has gone done since the 1970s: Republicans have been in charge of state policy on and funding of education since the late 1970s.

  16. Mr. Nelson has education policies he is ready to unleash. Get ready.

  17. Steve Sibson

    “why don’t Republicans find it equally important to invest in education to spur economic growth”

    Because education is a cost center as a sub component to their labor resource. The Republicans are behind Common Core. The Democrats have no idea about that, as proven by Owen’s and Nick’s comments. They are victims of the propaganda. If you want the truth, then research the “Business Roundtable” in regard to education.