New Lawsuit Challenges Constitutionality of Common Core

The Thomas More Law Center (TMLC) has joined in filing a lawsuit against the governor of North Dakota and other officials that claims the state’s participation in one of the federally funded interstate Common Core test consortia and the implementation of the Common Core standards is unconstitutional and violates federal laws that ban federal control of public schools and curriculum.

In a press release, TMLC – a national public interest law firm based in Ann Arbor, Michigan – said that it would join Missouri attorney D. John Sauer, who won his lawsuit in a county court that claimed Missouri’s membership fees to the Smarter Balanced Assessment Consortium (SBAC) is unconstitutional under the Compact Clause of the U.S. Constitution, as well as under “state and federal law.”

In February, Cole County, Missouri Circuit Judge Daniel Green ruled that the interstate consortium that is creating one of the tests aligned with the Common Core standards is an “unlawful interstate compact to which the U.S. Congress has never consented.”

In addition, TMLC states Bismarck, North Dakota attorney Arnold Fleck will assist in the lawsuit as local counsel. Plaintiffs in the case are North Dakota residents and taxpayers Steve Cates, Catherine Cartier, Charles Cartier, and North Dakota state Rep. Robert Skarphol.

TMLC states:

The Compact Clause of the United States Constitution provides that “[n]o state shall, without the consent of Congress . . . enter into any agreement or compact with another state.” As the Smarter Balanced Consortium is an interstate compact which Congress did not authorize, its existence is a violation of the Constitution. Accordingly, North Dakota’s membership in the Consortium and membership fee payments of over a half million dollars per year, equate to participation in and funding of an illegal entity.

In addition to violations of the Compact Clause, SBAC also violates laws enacted by Congress.  For nearly fifty years, federal statutes have prohibited the Federal Government—and, in particular, the federal Department of Education—from controlling educational policy, including curriculum decisions and educational-assessment programs in elementary and secondary education.

Despite the blatant unpopularity of the Common Core standards and aligned tests, and the growing number of governors who have distanced themselves from the education reform, many states are still members of either SBAC or the Partnership for Assessment of Readiness for College and Careers (PARCC), which are both funded by the federal government. This fact underscores the power wielded by state boards of education and state departments of education, which frequently do the bidding of the U.S. Department of Education in the states.

According to TMLC:

North Dakota’s agreement to participate in the Smarter Balanced Assessment Consortium leaves North Dakota schools little choice but to align their curriculum to meet the imposed national standards and assessments, allowing the federal Department of Education to effectively control public education in North Dakota.

Moreover, mounting criticism by parents, teachers, and a growing number of political leaders, has prompted SBAC, PARCC and the federal Department of Education to make it difficult to withdraw from participation in a testing Consortium and statewide testing by threatening increased restrictions and loss of federal funding. The threat of loss of federal funding helped drive a growing controversy between parents and school administrators over parental opt-outs and test refusal.

“States have surrendered their sovereignty over public education in exchange for federal dollars,” said Richard Thompson, president and chief counsel of TMLC. “Membership in SBAC requires the adoption of Common Core; and as the standards are Common Core and the exams are Common Core, so the local curriculum must also be Common Core.”

At the national level, Louisiana Gov. Bobby Jindal (R) has brought a lawsuit against the Obama administration’s Department of Education, one that syndicated radio host Hugh Hewitt and his fellow law professor John Eastman have said could be as significant as the court’s decision in Texas to halt Obama’s executive amnesty.

Jindal’s lawsuit claims that “through regulatory and rule making authority, Defendants have constructed a scheme that effectively forces States down a path toward a national curriculum.”

The suit further argues that under Duncan, the U.S. Department of Education used a $4.3 billion grant program known as Race to the Top, as well as waivers from the restrictions of No Child Left Behind, to manipulate states into adopting uniform “college and career ready” education standards and their associated tests. According to the complaint, these actions are in violation of the Tenth Amendment and federal laws that bar national control of education curriculum.

“We don’t always agree on matters, but when we do, we usually do so because of a shared belief in what the framers of the Constitution intended the federal government’s role to be,” wrote Hewitt and Eastman. “Thus… we are in agreement here that there ought to be zero role for the federal Department of Education in steering local districts toward – or away from – the Common Core standards.”


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