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.”