Memorandum in support of plaintiffs' motion for preliminary injunction in Sauer v. Nixon, alleging that Common Core violates the Compact Clause absent congressional consent.
Memorandum in support of plaintiffs' motion for preliminary injunction in Sauer v. Nixon, alleging that Common Core violates the Compact Clause absent congressional consent.
Memorandum in support of plaintiffs' motion for preliminary injunction in Sauer v. Nixon, alleging that Common Core violates the Compact Clause absent congressional consent.
FRED N. SAUER, ) ANNE GASSEL, and ) GRETCHEN LOGUE, ) ) Cause No. 14AC-CC00477 Plaintiffs, ) ) Division II vs. ) ) ) JEREMIAH W. (JAY) NIXON, et al., ) ) Defendants. ) MEMORANDUM IN SUPPORT OF PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION Under the Compact Clause of the U.S. Constitution, no State shall, without the Consent of Congress into any Agreement or Compact with another State. U.S. CONST., art. I, 10, cl. 3. The Smarter Balanced Assessment Consortium is an interstate compact to which Congress has never consented. SBACs avowed purpose was to radically reshape the education systems of participating states. This compact was created at the instigation of federal regulators, with the complicity of Missouri state officials, to attempt to implement a national curriculum in public schools aligned to the Common Core State Standards. This attempt was unconstitutional under the Compact Clause and illegal under federal and Missouri statutes. The Missouri General Assembly has effectively repudiated SBACs attempt to radically reshape Missouris educational system, by rejecting Common Core and requiring it to be replaced by 2016. Nevertheless, the Department of Elementary and Secondary Education and the Missouri Treasury are poised to disburse millions of dollars to support SBAC during the upcoming fiscal year. These disbursements are illegal and must be enjoined. 2 FACTUAL BACKGROUND This case presents a taxpayer challenge to the disbursement of Missouri taxpayer funds to the Smarter Balanced Assessment Consortium (SBAC), an illegal interstate compact whose existence and operations violate the U.S. Constitution, as well as federal and Missouri statutes. SBACs origins date to 2009, when the National Governors Association (NGA) and the Council of Chief State School Officers announced an initiative to develop a national, uniform set of educational-assessment standards for English language arts and mathematics called the Common Core State Standards (Common Core). See Petition, 32. The standards were not finalized until June 2010. Id. 34. However, on or about June 25, 2009, Governor Jeremiah W. (Jay) Nixon (Governor Nixon) unilaterallywithout authorization from the Missouri General Assemblyexecuted a Memorandum of Agreement with the NGA, purporting to commit Missouri to adopting Common Core. See Exhibit 1 to Plaintiffs Petition. Later that year, the U.S. Department of Education issued an invitation to the States to apply for Race to the Top (RTTT) grant funding, pursuant to the American Recovery and Reinvestment Act of 2009. See 74 Fed. Reg. 59836 (Nov. 18, 2009). The grant invitation conditioned the substantial RTTT grant funding on, in part, [t]he extent to which the State has demonstrated its commitment to adopting a common set of high-quality standards. Id. at 59843. To demonstrate the requisite commitment, a state could (a) participat[e] in a consortium of States that . . . [i]s working toward jointly developing and adopting a common set of K-12 standards . . . that are supported by evidence that they are internationally benchmarked and build toward college and career readiness by the time of high school graduation, and (b) demonstrat[e] its commitment to and progress toward adopting a common set of K-12 standards . . . by August 2, 2012 . . . and to implementing the standards thereafter in a well- 3 planned way. Id. Only months later, the U.S. Department of Education provided further incentive for the creation of inter-state educational consortia, announcing that under the RTTT grant program it would provide[] funding to consortia of States to develop assessments aligned with common K-12 standards. See 75 Fed. Reg. 18171 (April 9, 2010). To be eligible for funding, a consortium of states must include at least 15 states, id., and require the adoption of uniform academic-performance assessment standards by the 2014-2015 school year, id. at 18171-72. Two interstate consortia, SBAC and a similar entity called PARCC, were created in response to this invitation for RTTT funding. In May 2010, Governor Nixon and Commissioner Nicastro signed a Memorandum of Understanding with SBAC, purporting to make numerous commitments on Missouris behalf, including adopting the Common Core assessment standardsas developed by SBACand submitting to SBACs governance structure and collective decision making. See generally Exhibit 3 to Plaintiffs Petition. Officials from thirty- one other states executed identical or substantially similar Memoranda of Understanding. Plaintiffs Petition, 55. Critically, Congress has never authorized the creation or operations of SBAC, either expressly or impliedly. SBAC soon went about seeking the federal funds that had occasioned its creation. On or about June 15, 2010, the State of Washingtonpurportedly acting on behalf of SBAC and its member statessubmitted a RTTT grant application. See id., 57-59. The grant application explained that SBAC would develop a uniform multi-state assessment system based on the Common Core State Standards and further stated that the role of [SBAC] is to influence and support the development and implementation of learning and assessment systems to radically reshape the education systems in participating States. Id. at 58 (emphasis added). On or 4 about September 28, 2010, the U.S. Department of Education awarded SBAC a grant of approximately $159 million, plus a supplemental award of more than $15 million to help participating States successfully transition to common standards and assessments. Exhibit 5 to Plaintiffs Petition. Consistent with the grant award, on or about January 7, 2011, SBAC executed a Cooperative Agreement with the U.S. Department of Education. See Exhibit 6 to Plaintiffs Petition. This Cooperative Agreement provides for substantial federal involvement and influence in SBACs operations. Although SBAC originally was financed by federal RTTT grant funds, this funding will expire during the last months of 2014. See Plaintiffs Petition, 100, 102. According to SBACs primary media contact, once SBACs federal funding expires, the consortium will be financed through direct payments from member states to SBAC in the form of membership fees. Id. at 102. This is consistent with the Memorandum of Understanding executed by Governor Nixon and Commissioner Nicastro, which stated that [b]y September 1, 2014, a financial plan will be approved by [SBACs] Governing States that will ensure the Consortium is efficient, effective, and sustainable. The plain will include as revenue at a minimum, State contributions . . . . Exhibit 3 to Plaintiffs Petition, at 5. The Missouri Department of Elementary and Secondary Educations (DESEs) budget for Fiscal Year 2015 includes an allocation for $4,300,000.00 of State Assessment Funds to be paid to SBAC. Plaintiffs Petition, 101. The DESE budgets for Fiscal Years 2013 and 2014 did not include any direct payments to SBAC. Id. It is this impending payment of Missouri taxpayer fundsas membership fees to SBAC, an unlawful interstate compact operating in violation of both federal and state law that Plaintiffs challenge and seek to enjoin in this lawsuit. 5 PRELIMINARY-INJUNCTION STANDARD When considering a motion for a preliminary injunction, a court should weigh the movants probability of success on the merits, the threat of irreparable harm to the movant absent the injunction, the balance between this harm and the injury that the injunctions issuance would inflict on other interested parties, and the public interest. State ex rel. Dir. of Revenue v. Gabbert, 925 S.W.2d 838, 839 (Mo. banc 1996) (quoting Pottgen v. Mo. State High Sch. Activities Assn, 40 F.3d 926, 928 (8th Cir. 1994)). In this case, this Court should grant Plaintiffs Motion for Preliminary Injunction because Plaintiffs are likely to succeed on the merits of their claim that SBAC and Missouris participation therein violates both federal and state law, Plaintiffs (and all other Missouri taxpayers) may suffer irreparable harm absent a preliminary injunction, Plaintiffs prospective harm far outweighs any harm that other parties might sustain due to a preliminary injunction, and entering a preliminary injunction would best serve the public interest. I. Plaintiffs Claims Are Likely to Succeed on the Merits. This Court should grant Plaintiffs Motion for Preliminary Injunction because Plaintiffs are likely to succeed on the merits of their claims that SBAC and Missouris purported participation in SBAC violate the U.S. Constitution, as well as state and federal statutes. Among others, Plaintiffs are likely to succeed on the merits of the following claims: (1) SBAC is an unconstitutional interstate compact that was not authorized by Congress, whose existence and operation violate the Compact Clause of Article I, 10, cl. 3 of the U.S. Constitution; (2) the creation and operation of SBAC violate numerous federal statutes prohibiting the federal Department of Education from instituting a national curriculum; and (3) Missouris commitment 6 to adopt the Common Core standards and join SBAC violated Missouri law prohibiting the adoption of more than 75 statewide standards, and was therefore null and void. A. SBAC constitutes an unlawful interstate compact, not authorized by Congress, operating in violation of Article I, 10, cl. 3 of the U.S. Constitution. SBAC constitutes an unlawful interstate compact, not authorized by Congress, operating in violation of Article I, 10, cl. 3 of the U.S. Constitution. The Compact Clause provides that [n]o State shall, without the Consent of the Congress, . . . enter into any Agreement or Compact with another State . . . . U.S. Const. Art. I, 10, cl. 3. Because SBAC constitutes an interstate compact within the scope of the Compact Clause and has not received congressional authorization, SBAC and Missouris purported participation therein are unlawful and void. 1. SBAC requires Congressional authorization under the Compact Clause because it threatens to undermine the authority of the U.S. Congress. Not every agreement between states requires Congressional approval under the Compact Clause. Northeast Bancorp v. Bd. of Governors of Fed. Reserve Sys., 472 U.S. 159, 175 (1985) (citing Virginia v. Tennessee, 148 U.S. 503 (1893)). Rather, the Supreme Court has explained that interstate agreements fall within the Compact Clauseand thus require congressional authorizationonly if they implicate interests central to our system of federalism. In particular, two kinds of interstate compacts require Congressional approval: (1) interstate compacts that threaten to undermine the authority of the federal government, and (2) interstate compacts that threaten to undermine the sovereignty of the states. In making this assessment, the pertinent inquiry is one of potential, rather than actual, impact. United States Steel Corp. v. Multistate Tax Commn, 434 U.S. 452, 472 (1978) (emphasis added). First, the Supreme Court has made clear that interstate compacts that have the potential to undermine the authority of the federal government require congressional approval. As the Court 7 has stated, the Clause aims to prevent the enhancement of state power at the expense of the federal supremacy. Multistate Tax Commn, 434 U.S. at 470. When a Compact enhances state power quoad the National Government, id. at 473, Congress must consent to the agreement. Again, this inquiry considers the potential, rather than actual, impact of the compact. Id. SBAC clearly possesses the potential to undermine the authority of the federal government, because it effectively circumvents 50 years of Congressional policy forbidding the implementation of a national curriculum by the federal Department of Education. In numerous federal statutes, Congress has prohibited the federal Department of Education from implementing a national curriculum, and has forbidden the Department to exercise control over state and local educational policy, curriculum decisions, and performance-assessment programs in elementary and secondary education. See Petition, 22-31; see also infra Part II.B. As discussed at length in I.B below, SBAC resulted from a course of conduct by the federal Department of Education that was designed to circumvent these clear Congressional policies. As such, SBAC has infringed on Congresss constitutionally allocated authority and therefore falls squarely within the scope of the Compact Clause. In short, SBACs plan to radically reshape the educational systems of various states implies that SBAC is just the sort of interstate compact that Congress must approve under the Compact Clause. 2. SBAC requires Congressional authorization under the Compact Clause because it threatens the sovereignty of both member and non-member states to control educational policy within their own borders. Second, the Compact Clause requires Congressional approval of interstate compacts that threaten the sovereignty and authority of non-member states. The Compact Clause aims to ensure that those states that are parties to an interstate agreement do not impermissibly influence or harm non-compacting states. Because interstate agreements may affect the interests of States 8 other than those parties to the agreement . . . Congress must exercise national supervision through its power to grant or withhold consent. Felix Frankfurter & James M. Landis, The Compact Clause of the ConstitutionA Study in Interstate Adjustments, 34 YALE L.J. 685, 695 (1925). Every Compact Clause case, from Virginia v. Tennessee to the modern cases, considers not simply the federal sovereignty interest, but also the interests of non-compacting sister states, particularly the possibility of harm to non-compacting sister states. Derek T. Muller, The Compact Clause and the National Popular Vote Interstate Compact, 6 ELECTION L.J. 372, 385 (2007) (footnotes omitted). For instance, in Multistate Tax Commission, the Supreme Court considered whether the interstate agreement impair[ed] the sovereign rights of nonmember states, and concluded that it did not. 434 U.S. at 477. Similarly, in Northeast Bancorp, the Court held that the agreement did not constitute an interstate compact in part because the Court did not see how the statutes in question . . . enhance[d] the political power of [participating] States at the expense of other States. 472 U.S. at 176. And in a closely related context, the Supreme Court has recognized that one of the central considerations in approving an interstate compact is whether the agreement is likely to disadvantage other States to an important extent. Cuyler v. Adams, 449 U.S. 433, 440 n.8 (1981) (quoting Multistate Tax Commn, 434 U.S. at 485 (White, J., dissenting)). These recent pronouncements accord with the Courts early acknowledgment that the Compact Clause guard[s] against the derangement of [the States] federal relations with the other states of the Union, and the federal government. Rhode Island v. Massachusetts, 37 U.S. 657, 726 (1838). These considerations reflect the original context in which the Clause was enacted, including a prevailing distrust of interstate agreements in light of experience under the Articles of Confederation and pre-revolutionary history of royal 9 authorization of inter-colony agreements. See Muller, supra at 376-80; Frankfurter & Landis, supra at 692-95. SBACs existence and operations pose a significant potential threat to the autonomy of non-member states to make core educational-policy choices. The original memberships of SBAC and PARCC (the other interstate consortium implementing the Common Core standards) included nearly every state in the nation. See Plaintiffs Petition, 60, 73. As such, the consortia were designed to grant a near monopoly over K-12 educational standards in English language arts and mathematics to Common Core. The educational uniformity established by SBAC and PARCC threatens to make it exceptionally difficult for non-member states to resist adopting Common Core, or for member states to opt out of Common Core. The widespread adoption of Common Core will inevitably lead to revision of most textbooks and other instructional materials to align with the Common Core standards. See Robert S. Eitel & Kent D. Evers, The Road to a National Curriculum: The Legal Aspects of the Common Core Standards, Race to the Top, and Conditional Waivers, 13 ENGAGE 13, 17-18 (2012) (article by former U.S. Department of Education officials, explaining that [a] change to common K-12 standards will inevitably result in changes in curriculum, programs of instruction, and instructional materials to align with the standards). Moreover, other standardized testssuch as the SAT, ACT, and Advanced Placement examshave already begun adjusting their assessment standards to reflect the subject matter covered by Common Core. See, e.g., Lindsey Tepe, The Common Core is Driving the Changes to the SAT, The Atlantic (Mar. 10, 2014), available at: http://www.theatlantic.com/education/archive/2014/03/the-common-core-is-driving-the-changes- to-the-sat/284320. And many colleges may place particular emphasis on Common Core assessment results when making admissions decisions. See Lindsey Teppe, New America 10 Foundation, Common Core Goes to College 10-12 (2014), available at: http://www.newamerica.net/sites/newamerica.net/files/policydocs/CCGTC_7_18_2pm.pdf. These possibilities and many other potential adverse consequences have the potential to coerce non-member states to adopt the Common Core standards despite legitimate misgivings about the standards. In short, the purpose of SBAC and PARCC is to make Common Core so dominant within the educational establishment that opting out will become, as a practical matter, impossible. For these reasons, SBAC is precisely the sort of interstate combination that requires congressional authorization. 3. SBAC requires Congressional authorization under the Compact Clause because it bears the four critical hallmarks of an interstate compact. In addition, the U.S. Supreme Court has identified four characteristics of interstate compacts that are key indicia of whether a compact requires congressional authorization under the Compact Clause. These indicia include (1) the existence of an independent governance structure, (2) the delegation of sovereign power to the compact, (3) restrictions on withdrawing from the compact, and (4) the compacts exercise of powers that the states could not exercise individually. SBAC possesses all four of these hallmarks of an interstate compact requiring Congressional approval. (a) SBAC possesses an independent governance structure. First, the Court heavily considers whether a joint organization or body has been established to regulate the subject- matter of the compact. Northeast Bancorp, 472 U.S. at 175; see also Port Authority Trans- Hudson Corp. v. Feeney, 495 U.S. 299, 314 (1990) (Brennan, J., joined by Marshall, Blackmun, and Stevens, JJ., concurring in part and concurring in the judgment) (States may not create an interstate agency without the express approval of Congress; they surrendered their right to do so in the plan of the convention when they accepted the Interstate Compact Clause.). Such a 11 joint organization or governing body is a powerful indicium of a compact requiring Congressional approval under the Clause. In this case, SBAC possesses a joint organization and body . . . established to regulate the subject-matter of the compact, namely the development of mandatory assessments aligned to Common Core. The consortium was tasked with promulgating a system of assessment upon the Common Core State Standards in English language arts and mathematics. SBAC Governance Document, Exhibit 4 to Plaintiffs Petition, at 2. To accomplish this, SBACs governance structure provides for an extensive staff and creates a number of offices within the consortium. Id. at 11-12. The governance structure also establishes several committees and working groups. Id. at 10-11. With only limited, enumerated exceptions, decisions regarding SBACs operations can be made by the organizations Executive Committee, without approval or input by member states. Id. at 9-10. Thus, SBACs governance structure establishes an organization with its own officials, decision-making bodies, staff, and policies that dictates educational standards to member states. These characteristics of SBACs independent governance structure confirm that it is the sort of compact that requires Congressional approval. (b) SBAC involves the delegation of sovereign powers by the states to the compact. Second, where an interstate agreement establishes a joint organization, the Court considers whether there has been any delegation of sovereign power to the organization, or whether each State retains complete freedom to adopt or reject the rules and regulations prescribed by the joint organization. Multistate Tax Commn, 434 U.S. at 473. Here, SBAC involves the delegation of sovereign power such that states lose their complete freedom to adopt or reject the rulings of SBAC. In particular, SBAC member states do not retain freedom to reject SBACs decisions. The Memoranda of Understanding that Missouri and other states executed to join the 12 consortium required the states to commit to implementing the assessments created by SBAC, to support the decisions of the Consortium, to follow agreed-upon timelines, and to abide by the consortiums governance structure. See Exhibit 3 to Plaintiffs Petition, at 3; see also SBAC Governance Structure Document, Exhibit 4 to Plaintiffs Petition, at 4. These decisions of the Consortiumdecisions such as prescribing the details of the educational-assessment system that member states must adoptoften can be made by SBACs Executive Committee, without any approval or feedback by member states. See SBAC Governance Document, at 9. And even those decisions that are put to a vote of member states do not require unanimity; they require only two-thirds of a quorum (which is half of the voting states). Id. at 9-10. Under this structure, then, SBAC and its member states can dictate educational-assessment decisions even to member states that vote against a proposal. Thus, by joining SBAC, member states have delegated to SBAC a significant portion of their sovereign authority over educational assessment. This cession is particularly noteworthy because it involves education, an area traditionally committed to state sovereignty. See, e.g., United States v. Lopez, 514 U.S. 549, 564 (1995) (identifying education as an area[] . . . where States historically have been sovereign). (c) SBAC includes potential restrictions on withdrawing from the interstate compact. Third, the Supreme Court considers whether states may withdraw freely and unilaterally from the interstate agreement. See Multistate Tax Commn, 434 U.S. at 473; Northeast Bancorp, 472 U.S. at 175. Here, SBACs governance documents purport to prevent member states from withdrawing unilaterally from the consortium. The Governance Structure Document require members to comply with an exit process, under which a state must submit in writing its request to leave the Consortium and reasons for the exit request, which is then subject to review and approval by SBACs Executive Committee. See Exhibit 4 to 13 Plaintiffs Petition, at 14; see also 75 Fed. Reg. 18171, 18174 (April 9, 2010) (requiring states seeking Race to the Top grants to execute a binding agreement that bind[s] each member of the consortium to every statement and assurance made in its application). Notably, SBACs Governance Structure Documents specifically requires approval of SBACs Executive Committee before a state can withdraw from the consortium. Pet., Ex. 4, at 14. Thus, under SBACs governance structure, SBACs Executive Committee retains authority and discretion to withhold an exit request, thereby preventing a state from withdrawing from the compact. To be sure, certain states have withdrawn from the consortium without apparent objection from the Executive Committee. See Adrienne Lu, States Reconsider Common Core Tests, Washington Post (Feb. 20, 2014), available at: http://www.washingtonpost.com/national/states-reconsider- common-core-tests/2014/02/20/9e16efd4-8779-11e3-a5bd-844629433ba3_story.html. But the fact that the Memorandum requires a request to withdraw to be approved implies that states are not free to withdraw unilaterally from the interstate compact. (d) SBAC exercises powers that the individual states could not exercise on their own. Fourth, the Supreme Court looks to whether an interstate compact enables its member states to exercise any powers they could not exercise in its absence. Multistate Tax Commn, 434 U.S. at 472. SBAC permits its member states, through the consortium, to dictate the educational- assessment policies of other member states, including those states that dissent from the consortiums policies. See SBAC Governance Document, Exhibit 4 to Plaintiffs Petition, at 4 (requiring member states to support SBACs decisions and adopt the standards established by SBAC); id. at 9-10 (authorizing decision making by SBACs Executive Committee and/or two- thirds of the voting quorum, thus permitting the imposition of non-unanimous decisions on dissenting states). While states ordinarily possess authority to establish their own educational 14 assessments, in the absence of interstate compacts like SBAC, they never could dictate the educational-assessment systems of other states. 4. The absence of Congressional authorization for SBAC departs from historical practice, as similar compacts in the past were submitted to Congresss consent. It is also instructive that SBACs lack of congressional authorization represents a departure from historical practice. For example, the Education Commission of the States (ECS) was created in 1965 for purposes similar to those of SBAC. See generally Compact for Education, available at: http://www.ecs.org/html/aboutECS/documents/Compact-for-Education- Dec1965.pdf. It took the form of an interstate compact that was approved by Congress. Id. ECS created and, for many years, administered the National Assessment of Educational Progress (NAEP) tests, which were designed to assess the knowledge of American students in core subjects, much like the SBAC assessments. Id. Unlike SBAC, Congress consented to ECS. Congress has also consented to numerous other interstate agreements with significantly less far-reaching effects than those of SBAC. See, e.g., 83 Stat. 14 (1969) (consenting to the New Hampshire-Vermont Interstate School Compact); 72 Stat. 635 (consenting to the Driver License Compact); 67 Stat. 490 (1953) (consenting to Western Interstate Educational Compact); 64 Stat. 568 (1950) (consenting to Bi-State Development Agency Compact). In light of the fundamental principles underlying the Compact Clause and the indicia of interstate compacts identified by the Supreme Court, SBAC constitutes an interstate compact within the scope of the Compact Clause. And because SBAC has not received congressional authorization, SBAC and Missouris participation therein are unlawful and void. Therefore, there is a strong probability that Plaintiffs will succeed on the merits of their claims, and this Court should enter a preliminary injunction enjoining the Defendants from disbursing any Missouri taxpayer funds, whether directly or indirectly, to SBAC. 15 B. SBACs existence and Missouris purported participation in SBAC violate numerous federal statutes prohibiting the Federal Government from controlling core aspects of education. SBACs existence and Missouris purported participation in SBAC also violate the clear and repeated Congressional directive that the federal Department of Education should not implement a national curriculum and should not exercise control over educational policy, curriculum decisions, and educational-assessment programs in elementary and secondary education. For nearly fifty years, Congress has reiterated its explicit intention that authority over these core aspects of education rests with the States and local educational agencies, not the Federal Government. Nevertheless, the federal Department of Education, with the cooperation of state officials such as Governor Nixon and Commissioner Nicastro and through SBACs activities, has unlawfully sought to prescribe even minute details of the curricula of Americas public schools. In 1965, Congress enacted the General Education Provisions Act of 1965 (GEPA), 20 U.S.C. 1221 et seq., which provides that: No provision of any applicable program shall be construed to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over the curriculum, program of instruction, administration, or personnel of any educational institution, school, or school system, or over the selection of library resources, textbooks, or other printed or published instructional materials by any educational institution or school system. 20 U.S.C. 1232a (emphasis added). Echoing this principle, the Department of Education Organization Act of 1979 (DEOA), 20 U.S.C. 3401 et seq., which established the U.S. Department of Education, provides that: No provision of a program administered by the Secretary or by any other officer of the Department shall be construed to authorize the Secretary or any such officer to exercise any direction, supervision, or control over the curriculum, program of instruction, administration, or personnel of any educational institution, school, or school system, over any accrediting agency or association, or over the selection or content of library 16 resources, textbooks, or other instructional materials by any educational institution or school system, except to the extent authorized by law. 20 U.S.C. 3403(b) (emphasis added). The DEOA reflects the clear intention of the Congress . . . to protect the rights of State and local governments and public and private educational institutions in the areas of educational policies and administration of programs and to strengthen and improve the control of such governments and institutions over their own educational programs and policies. 20 U.S.C. 3403(a). In the landmark Elementary and Secondary Education Act of 1965 (ESEA), as amended by the No Child Left Behind Act of 2001 (NCLB), 20 U.S.C. 6301 et seq., Congress reiterated forcefully its insistence that the Federal Government must remain uninvolved in core educational decisionmaking: The legislative history [of the ESEA], the language of the Act, and the regulations clearly reveal the intent of Congress to place plenary responsibility in local and state agencies for the formulation of suitable programs under the Act. There was a pronounced aversion in Congress to federalization of local educational decisions. Wheeler v. Barrerra, 417 U.S. 402, 415-16 (1975), judgment modified on other grounds, 422 U.S. 1004 (1975). In enacting the ESEA, Congress contemplated that decisions regarding the specific types of programs or projects that will be required in school districts would be left to the discretion and judgment of the local public educational agencies. H.R. Rep. No. 143, 89th Congress, 1st Session, 5 (1965). The ESEA provides that [n]othing in this Act shall be construed to authorize an officer or employee of the Federal Government to mandate, direct, or control a State, local education agency, or schools curriculum, program of instruction, or allocation of State or local resources. 20 U.S.C. 7907(a). The ESEA prohibits the Department of Education from using funds under the statute to endorse, approve, or sanction any curriculum designed to be used in an elementary 17 school or secondary school. 20 U.S.C. 7907(b). And it further provides that no State shall be required to have academic content or student academic achievement standards approved or certified by the Federal Government, in order to receive assistance under this Act. 20 U.S.C. 7907(c)(1). Despite these clear congressional pronouncements, the federal Department of Educationwith the cooperation of state officials such as Governor Nixon and Commissioner Nicastroinduced the creation of SBAC as part of a scheme to implement national curricular uniformity. In order to obtain the substantial funding available under the Race to the Top (RTTT) grant program, states were required to demonstrate a commitment to adopting a common set of high-quality standards. 74 Fed. Reg. 59836, 59843 (Nov. 18, 2009); 75 Fed. Reg. 19496, 19503 (April 14, 2010). States could demonstrate the requisite commitment by participat[ing] in a consortium of States that . . . [i]s working toward jointly developing and adopting a common set of K-12 standards. 74 Fed. Reg. at 59843. States participating in such a consortium also must commit to adopting those common assessment standards. Id. The federal Department of Education imposed these conditions on RTTT funding precisely in order to induce the creation of interstate consortia like SBAC that would implement uniform national educational-assessment standards. The federal Department of Education has further coerced states to participate in interstate consortia like SBAC through its use of NCLB waivers. In exchange for a state adopting college- and career-ready standardsthat is, the standards described in the RTTT grant- application invitationsthe Department offers to waive many of the onerous requirements of the ESEA, as reauthorized and amended by NCLB. See generally U.S. Dept. Of Education, ESEA Flexibility Policy Document, available at http://www.ed.gov/esea/flexibility/documents/esea- 18 flexibility-acc.doc. This waiver plan lacks statutory authority in ESEA or elsewhere in federal law; the Department of Education acknowledged that the program operates in a manner that was not originally contemplated by the No Child Left Behind Act of 2001. Id. Indeed, the waiver program operates in violation of two prohibitions implemented by NCLB: first, the prohibition against requiring states to have academic content or student academic achievement standards approved or certified by the Federal Government, in order to receive assistance under [the] Act, 20 U.S.C. 7907(c)(1); and second, the prohibition against using NCLB funds to endorse, approve, or sanction any curriculum designed to be used in an elementary school or secondary school, 20 U.S.C. 7907(b). In practical effect, the NCLB waiver program operates as a formidable threat to corral the states into aligning their curriculum with Common Core. By coercing the adoption of uniform assessment standardsthat is, the Common Core standardsthe U.S. Department of Education necessarily forces the adoption of national curricular uniformity aligned to those standards. Under the incentives of the contemporary public-education system, curricular content necessarily and inevitably follows from the content of assessment standards. See Robert S. Eitel & Kent D. Evers, The Road to a National Curriculum: The Legal Aspects of the Common Core Standards, Race to the Top, and Conditional Waivers, 13 ENGAGE 13, 17-18 (2012) (explaining that [a] change to common K-12 standards will inevitably result in changes in curriculum, programs of instruction, and instructional materials to align with the standards). Under NCLB, local public schools that fall below certain performance levels on educational assessments face draconian consequences, including mandatory staff replacement, curricular changes, and even dramatic restructuring of school governance. See, e.g., 20 U.S.C. 6316(5), (7), and (8). Likewise, educational- assessment standards often determine state-level accreditation of public schools. For example, in 19 Missouri, public-school accreditation depends in part on student performance on standardized testing. See 5 C.S.R. 20-100.105 & Appendix A thereto. A schools loss of state accreditation can result in, among other things, substantial intervention by the state Board of Education, see RSMo. 162.081, and an obligation to finance the education of students at nearby accredited schools, see RSMo. 167.131, 167.241. These high-stakes consequences of educational- assessment performance standards mean that schools necessarily will revise their curricula to align with those standards. See, e.g., Nancy Kober & Diane Stark Rentner, Center for Education Policy, Common Core State Standards: Progress and Challenges in School Districts Implementation (2011), available at http://www.cep- dc.org/cfcontent_file.cfm?Attachment=KoberRentner%5FCommonCoreDistrict%5FReport%5F 091411%2Epdf, 4-8 (detailing widespread belief amongst school administrators that adopting Common Core will require significant curricular changes and adoption of Common Core-aligned curricular materials); Paul Warren & Patrick Murphy, Californias Transition to the Common Core State Standards (2014), available at: http://www.ppic.org/content/- pubs/report/R_414PMR.pdf, at 6-10 (describing four states curricular and instructional-material changes in light of adopting the Common Core performance-assessment standards); Eitel & Evers, supra at 21 (explaining that the U.S. Department of Educations involvement with Common Core has placed the nation on the road to a national curriculum). Thus, as described above, the adoption of the Common Core performance-assessment standards necessarily entails the adoption of a particular curriculum aligned to those standards. This cause-and-effect relationship between assessment and curriculum already has occurred in Missouri, as evidenced by the Department of Elementary and Secondary Educations (DESEs) mandate that school districts undergo a process of curriculum review and revision to align with 20 the new [i.e., Common Core] English/language arts and mathematics standards. DESE Administrative Memo, Exhibit 7 to Plaintiffs Petition (emphasis added). Indeed, DESE has promulgated a model curriculum designed to reflect the substantive content of the Common Core Standards. See https://k12apps.dese.mo.gov/webapps/ModelCurriculum/findunit.aspx. SBAC was created as a result of federal action that violated the clear mandates of the GEPA, DEOA, ESEA, and NCLB. It amounts to precisely the sort of federalization of local educational decisions toward which Congress has expressed its pronounced aversion. Wheeler, 417 U.S. at 416. Accordingly, both SBAC and Missouris purported participation in SBAC violate federal law and therefore are void. Thus, there is a strong probability that Plaintiffs will succeed on the merits of their claims, and this Court should enter a preliminary injunction enjoining the Defendants from disbursing any Missouri taxpayer funds, whether directly or indirectly, to SBAC. C. The purported commitments made by Governor Nixon and Commissioner Nicastro to SBAC, as well as the state Board of Educations adoption of the Common Core assessment standards, violate 160.514.1, RSMo. The purported commitments made by Governor Nixon and Commissioner Nicastro to SBAC, as well as the state Board of Educations adoption of the Common Core assessment standards, violate 160.514.1, RSMo., and therefore are unlawful and void. Section 160.514.1 provides that the state board of education shall adopt no more than seventy-five academic performance standards for statewide educational assessment. By adopting the Common Core assessment standards at the behest of Governor Nixon and Commissioner Nicastro, the state Board of Education violated 160.514.1. In 2010, the Board of Education adopted the Missouri Learning Standards. DESE has explained that [t]he Missouri Learning Standards include the Common Core State Standards for English language 21 arts and math. http://www.missourilearningstandards.com/files/MOLearningStandards.pdf. The Common Core assessment requirements for English language arts and mathematics, as adopted by the Board of Education, contain far more than seventy-five academic-performance standards. For example, the Common Core high-school mathematics assessment requirements alone contain 156 distinct standards. See http://dese.mo.gov/sites/default/- files/CCSSI_Math%20Standards.pdf. Similarly, the Common Core English language arts assessment requirements for 11th and 12th grades contain forty-one distinct standards; when subparts are included, that number increases to sixty-four standards. See http://dese.mo.gov/sites/default/files/CCSSI_ELA%20Standards.pdf. Thus, the assessment requirements for just these two subjects impose more than 200 separate standards for students in grades 11 and 12, thereby dramatically exceeding the limit established by 160.514.1. This statutory violation is exacerbated when the Missouri Learning Standards covering other subjects are taken into account. See http://dese.mo.gov/college-career-readiness/curriculum/missouri- learning-standards. The assessment requirements for other grade levels similarly exceed the statutory limitations. Thus, the state Board of Educations adoption of the Common Core assessment standards clearly violates 160.514.1 and therefore is void. Because Missouris purported participation in SBAC is premised on the implementation of unlawful educational standards, Missouris continued involvement with SBACespecially the impending payment of $4.3 million to SBAC in the form of membership feesalso is unlawful. Accordingly, there is a strong probability that Plaintiffs will succeed on the merits of their claims, and this Court should enter a preliminary injunction enjoining the Defendants from disbursing any Missouri taxpayer funds, whether directly or indirectly, to SBAC. 22 II. Plaintiffs Will Suffer Irreparable Harm If the Injunction Is Not Granted. Plaintiffs, as well as all other Missouri taxpayers, face significant and irreparable harm absent a preliminary injunction. The plaintiffs have brought this action on behalf of [themselves] and other taxpayers similarly situated, . . . to enjoin the illegal expenditure of public funds. Eastern Mo. Laborers Dist. Council v. St. Louis Cnty., 781 S.W.2d 43, 46 (Mo. banc 1989). If Defendants are permitted to make the challenged disbursement before this Court can address the merits of Plaintiffs claim, then Missouri taxpayers may lose any opportunity to contest the legality of the disbursement and the conduct of Defendants that has given rise to that disbursement. Further, the disbursement would be effectively impossible to recoup to the Missouri Treasury, thus resulting in an irreparable injury to Missouri taxpayers such as Plaintiffs. Accordingly, this Court should enter a preliminary injunction enjoining the Defendants from disbursing any Missouri taxpayer funds, whether directly or indirectly, to SBAC. III. The Balance of Harms Weighs Decisively in Favor of Granting the Injunction. The benefits that would flow from a preliminary injunction outweigh any adverse consequences that other interested parties might experience. It is Plaintiffs understanding that SBAC will remain funded by its federal grant long enough for this Court to consider the merits of Plaintiffs claims. As such, no interested party will be harmed by any delay in payment. Even if Defendants or another interested party might suffer some adverse consequences from a delay in payment, those consequences are dramatically outweighed by the interest of Plaintiffs and other Missouri taxpayers to ensure that state officials not engage in conduct that flaunts the U.S. Constitution, as well as federal and state statutes. Accordingly, this Court should enter a 23 preliminary injunction enjoining the Defendants from disbursing any Missouri taxpayer funds, whether directly or indirectly, to SBAC. IV. The Public Interest Favors Granting the Injunction. The public interest will be best served by the Court entering a preliminary injunction in this case. In taxpayer-standing cases, it is the public interests which are involved in preventing the unlawful expenditure of money raised or to be raised by taxation. Eastern Mo. Laborers Dist. Council v. St. Louis Cnty., 781 S.W.2d 43, 47 (Mo. banc 1989) (emphasis in original) (quotation omitted). The public interest entails an indispensable need to keep public corporations, their officers, agents and servants strictly within the limits of their obligations and faithful to the service of the citizens and taxpayers. Id. at 46. A preliminary injunction will permit this Court to effectuate this indispensable need and ensure that state officials do not engage in unlawful and harmful conduct that violates both federal and state law. Accordingly, this Court should enter a preliminary injunction enjoining the Defendants from disbursing any Missouri taxpayer funds, whether directly or indirectly, to SBAC. 24 CONCLUSION For the reasons stated, this Court should grant Plaintiffs request for a preliminary injunction preventing the Defendants from making any direct or indirect disbursement of Missouri funds to the Smarter Balanced Assessment Consortium. Dated: September 19, 2014 Respectfully submitted, CLARK & SAUER, LLC /s/ D. John Sauer D. John Sauer, #58721 Michael Martinich-Sauter, #66065 7733 Forsyth Blvd., Suite 625 St. Louis, MO 63105 Telephone: (314) 332-2980 Facsimile: (314) 332-2973 jsauer@clarksauer.com Attorneys for Plaintiffs 25 CERTIFICATE OF SERVICE I hereby certify that, on September 19, 2014, a true and correct copy of the foregoing filed electronically with the Court, to be served by operation of the Courts electronic filing system upon the following: James R. Layton Solicitor General 207 West High Street Jefferson City, Missouri 65101 James.Layton@ago.mo.gov /s/ D. John Sauer
First National Bank and Trust Company v. National Credit Union Administration, and At&t Family Federal Credit Union and Credit Union National Association, 90 F.3d 525, 1st Cir. (1996)