Common Core Testing Regime Ruled Unconstitutional

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In a devel­op­ment with mas­sive impli­ca­tions for the Oba­ma administration’s ongo­ing attempt at nation­al­iz­ing edu­ca­tion with Com­mon Core, a Mis­souri judge ruled this week that the fed­er­al­ly fund­ed test­ing regime for the con­tro­ver­sial stan­dards was uncon­sti­tu­tion­al. The rul­ing means that the state of Mis­souri is offi­cial­ly pro­hib­it­ed from par­tic­i­pat­ing in the “Smarter Bal­anced Assess­ment Con­sor­tium” (SBAC), a key ele­ment of Com­mon Core enforce­ment, because it’s an “uncon­sti­tu­tion­al inter­state com­pact.”

The law­suit against par­tic­i­pa­tion in the scheme was filed late last year by a group of tax­pay­ers seek­ing to uphold the rule of law, safe­guard pub­lic funds, and stop Com­mon Core. Judge Daniel R. Green, with the Cir­cuit Court of Cole Coun­ty, Mis­souri, ruled in favor of the plain­tiffs and ordered the state to imme­di­ate­ly halt all involve­ment with the fed­er­al­ly fund­ed “mul­ti-state” test­ing regime. In par­tic­u­lar, Judge Green not­ed that Con­gress had nev­er approved the inter­state com­pact being foist­ed on states by the Oba­ma administration’s Depart­ment of Edu­ca­tion.

The Court finds that the Smarter Bal­anced Assess­ment Con­sor­tium, a.k.a. Smarter Bal­anced, Smarter Bal­anced at UCLA, SBAC, and SB, is an unlaw­ful inter­state com­pact to which the U.S. Con­gress has nev­er con­sent­ed, whose exis­tence and oper­a­tion vio­late the Com­pact Clause of the U.S. Con­sti­tu­tion, Arti­cle I, § 10, cl. 3, as well as numer­ous fed­er­al statutes,” the judge ruled. “Missouri’s par­tic­i­pa­tion in the Smarter Bal­anced Assess­ment Con­sor­tium as a mem­ber is unlaw­ful under state and fed­er­al law.”

As such, the court declared that “any puta­tive oblig­a­tions, includ­ing the oblig­a­tion to pay mem­ber­ship fees, of the State of Mis­souri to the Smarter Bal­anced Assess­ment Con­sor­tium … are ille­gal and void.” The judge also declared that “no Mis­souri tax­pay­er funds may be dis­bursed to SBAC in the form of mem­ber­ship fees, whether direct­ly or indi­rect­ly.” Final­ly, the court per­ma­nent­ly pro­hib­it­ed state offi­cials, and “all those in active con­cert with them,” from “tak­ing any action to imple­ment or oth­er­wise effec­tu­ate any pay­ment of Mis­souri funds as mem­ber­ship fees to SBAC, whether direct­ly or indi­rect­ly.”

The suit against state offi­cials, from Demo­c­rat Gov­er­nor Jay Nixon on down, argued that Nixon and his offi­cials attempt­ed to cede Missouri’s sov­er­eign­ty over edu­ca­tion pol­i­cy to the ille­gal enti­ty “oper­at­ing under the influ­ence of fed­er­al reg­u­la­tors locat­ed in Wash­ing­ton, DC.” Even though state law­mak­ers over­whelm­ing­ly repu­di­at­ed the stan­dards scheme in 2014 with veto-proof mar­gins, state offi­cials con­tin­ued in their efforts to send mil­lions of tax­pay­er dol­lars to the ille­gal enti­ty.

Also cit­ed in the law­suit was the U.S. Constitution’s 10th Amend­ment, which reserves all pow­ers to states and the peo­ple if they were not specif­i­cal­ly del­e­gat­ed to the fed­er­al gov­ern­ment. “It has long been rec­og­nized that edu­ca­tion­al pol­i­cy is an area of core state com­pe­tence and con­cern that is not del­e­gat­ed to the fed­er­al gov­ern­ment under the Con­sti­tu­tion and our sys­tem of fed­er­al­ism,” the con­cerned tax­pay­ers argued in their com­plaint, adding that fed­er­al statutes going back almost 50 years also pro­hib­it the U.S. gov­ern­ment from con­trol­ling edu­ca­tion pol­i­cy, cur­ricu­lum, or assess­ment pro­grams.

Com­mon Core, the suit argued, vio­lates those fed­er­al laws and the U.S. Con­sti­tu­tion. It has also sparked nation­wide out­rage across the polit­i­cal spec­trum, the peti­tion observed. Nonethe­less, Gov­er­nor Nixon, with­out autho­riza­tion from the people’s elect­ed rep­re­sen­ta­tives, uni­lat­er­al­ly signed an agree­ment pur­port­ing to force Mis­souri to impose the flawed and unlaw­ful stan­dards. The Oba­ma admin­is­tra­tion, mean­while, using bribes and law­less “waivers” from oth­er uncon­sti­tu­tion­al fed­er­al edu­ca­tion schemes, was work­ing to impose its nation­al­iza­tion plan on Mis­souri and oth­er states, explained the law­suit.

State law­mak­ers, at least, appear to have got­ten the mes­sage. “The House will act imme­di­ate­ly to strip all SBAC fund­ing from the bud­get with the goal of end­ing our mem­ber­ship with this group that is in clear vio­la­tion of the fed­er­al and state con­sti­tu­tions,” said Mis­souri House Speak­er John Diehl, a Repub­li­can, after the rul­ing. “The peo­ple of Mis­souri have made it clear they have a dis­taste for Com­mon Core and that they do not want to see their tax dol­lars wast­ed on these fed­er­al­ly-pro­duced stan­dards. Going for­ward, we will con­tin­ue to focus our efforts on devel­op­ing Mis­souri-based stan­dards that will best serve the needs of our young peo­ple.”

Indeed, last year, law­mak­ers over­whelm­ing­ly vot­ed to kill the Com­mon Core scheme in Mis­souri and to have a state pan­el cre­ate new, supe­ri­or state stan­dards. In inter­views with The New Amer­i­can, the plain­tiffs involved in the law­suit against SBAC par­tic­i­pa­tion sound­ed opti­mistic that the nation­al­iza­tion scheme would fail in Mis­souri — as well as nation­wide. How­ev­er, as this mag­a­zine has report­ed, more than a few states have offi­cial­ly “with­drawn” from Com­mon Core, owing to wide­spread pub­lic pres­sure, only to keep it large­ly in place after mak­ing a few minor changes.

Still, activists with the Mis­souri Coali­tion Against Com­mon Core remain hope­ful, and cel­e­brat­ed the court’s rul­ing. “The SBAC law­suit was, at its foun­da­tion, about the rule of law,” Anne Gas­sel, one of the tax­pay­ers involved in the law­suit, told The New Amer­i­can. “Should tax pay­ers be forced to pay for some­thing that was cre­at­ed through the col­lu­sion of pri­vate enti­ties and the gov­ern­ment which cir­cum­vent­ed the rule of law, in this case the Con­sti­tu­tion?” Her answer is a strong no.

In the recent­ly decid­ed case against SBAC and the gov­er­nor, “the court agreed that those who cre­at­ed the Smarter Bal­anced Assess­ment Con­sor­tia did not fol­low the rule of law and obtain Con­gres­sion­al approval in estab­lish­ing the con­sor­tia,” she added. “We believe, there­fore, that the Mem­o­ran­dum of Agree­ment signed by our state for the Race To The Top Grant pro­gram, and the NCLB [No Child Left Behind] waiv­er we applied for, which required that our state be a mem­ber of a test­ing con­sor­tia, can­not bind the state and the tax­pay­er to pay for mem­ber­ship in the ille­gal con­sor­tia.”

Gas­sel and the oth­er two plain­tiffs — for­mer Repub­li­can guber­na­to­r­i­al can­di­date Fred Sauer and par­ent activist Gretchen Logue — expect the gov­er­nor to appeal the rul­ing. How­ev­er, the case appears to be rel­a­tive­ly straight­for­ward: State gov­ern­ments and the Oba­ma admin­is­tra­tion defied the U.S. Con­sti­tu­tion and an array of state and fed­er­al laws to foist Com­mon Core on the unsus­pect­ing Amer­i­can peo­ple. In fact, in a phone call with The New Amer­i­can, Gas­sel and Logue indi­cat­ed that, if the test­ing scheme is uncon­sti­tu­tion­al in Mis­souri, it is also unlaw­ful in oth­er states. State activists hope the grow­ing bi-par­ti­san move­ment against Com­mon Core across Amer­i­ca can learn from Mis­souri and kill the test­ing regime in oth­er states. Many have already backed out.

As The New Amer­i­can has been report­ing for years, the fed­er­al­ly fund­ed test­ing con­sor­tia — SBAC and the Part­ner­ship for Assess­ment of Readi­ness for Col­lege and Careers (PARCC) — are cru­cial to the Oba­ma administration’s nation­al­iza­tion plot. Essen­tial­ly, the administration’s tests, if imposed, will dic­tate what must be taught in the class­room. As chief Com­mon Core financier and pop­u­la­tion-con­trol zealot Bill Gates put it in a speech to the Nation­al Con­fer­ence of State Leg­is­la­tures in 2009: “When the tests are aligned to the com­mon stan­dards, the cur­ricu­lum will line up as well.” The test­ing regime is also a cru­cial com­po­nent of the Orwellian data-gath­er­ing and data-min­ing plot.

Of course, the Com­mon Core-push­ing estab­lish­ment — Big Busi­ness and Big Gov­ern­ment, most­ly — has no inten­tion of sur­ren­der­ing. How­ev­er, with out­rage over what one state law­mak­er and edu­ca­tion expert described to The New Amer­i­can as “state-spon­sored child abuse” con­tin­u­ing to sweep the nation, the bat­tle is far from over. Par­ents, tax­pay­ers, edu­ca­tors, and more are cross­ing par­ty lines to smash the plot. If Amer­i­cans hope to restore prop­er edu­ca­tion and local con­trol, though, the grow­ing grass­roots upris­ing against Com­mon Core will have to ratch­et up the pres­sure even more.