1

IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI

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.
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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-
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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-
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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
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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
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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
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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.
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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
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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.
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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
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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