BISMARCK – Opponents of a multistate group that develops tests aligned with the Common Core education standards argued for a court order Monday that would temporarily block North Dakota from spending any more money with the consortium until a judge rules on their lawsuit claiming it’s unconstitutional.
Judge David Reich took the case under advisement after hearing arguments in Burleigh County District Court on a preliminary injunction requested by the four plaintiffs in the lawsuit, including the Michigan-based Thomas More Law Center and state Rep. Robert Skarphol, R-Tioga.
The suit, filed last month against Superintendent of Public Instruction Kirsten Baesler and other state officials, claims the Smarter Balanced Assessment Consortium is an unlawful interstate compact formed without the consent of Congress and seeks to end North Dakota’s membership in the group.
In February, a circuit court judge hearing a similar lawsuit in Missouri ruled that the 18-state consortium is an illegal compact and permanently enjoined the state from disbursing any money to the group. The state is appealing that ruling.
John Sauer, the St. Louis-based attorney who represented the plaintiffs in the Missouri case, argued Monday that North Dakota’s participation in the consortium violates the compact clause of the U.S. Constitution and laws related to federal support of schools and state control over education policy.
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Sauer said a memorandum of understanding signed by North Dakota officials last year threatens state sovereignty by binding the state to decisions made by the consortium’s 15-state governing board – of which North Dakota is a member – and also restricts the state’s ability to withdraw from the group.
Solicitor General Douglas Bahr countered that the state has retained its sovereignty and can withdraw from the consortium at any time. He warned that an injunction would force the state to secure new testing contracts and would have a domino effect for years to come even if the state wins the case.
“The harm is there. We can’t take it back,” he said.
The decision to join the consortium followed lengthy study and input from educators and the public, and the state remains dedicated to the Common Core standards, Bahr said. State law requires the tests in English and math be given to students in grades 3-8 and 11.
“It’s not about Common Core, and the results of this case will in no way impact whether the state uses Common Core,” he said.
But Sauer said as long as the state is bound by the consortium’s assessments, its curriculum will follow.
“As along as North Dakota’s in this, there’s no chance, so to speak, for North Dakota to exit from the Common Core state standards,” he said.
The preliminary injunction would block the state from disbursing additional taxpayer funds to the consortium. Through April, the state had paid the consortium $461,580 of the $553,900 in membership fees it expects to pay for the 2014-15 school year, Department of Public Instruction spokesman Dale Wetzel said.
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Reich said he will rule on the preliminary injunction as soon as he can and may simultaneously rule on the state’s motion to dismiss the case if the plaintiffs don’t request oral arguments.
In February, North Dakota House lawmakers narrowly defeated a bill that would have forced the state to withdraw from the consortium.
Glitches plagued rollout of the online testing in North Dakota this past spring. Baesler announced a task force in May to study other standardized testing options for K-12 students, saying one recommendation could be to end the state’s three-year, $4.6 million contract with Measured Progress, which administers the tests.
Reach Nowatzki at (701) 255-5607 or by email at mnowatzki@forumcomm.com
