On February 2, 2015 constitutional attorney D. John Sauer testified before the North Dakota House Education Committee regarding the legality of the state’s involvement in the Smarter Balanced Assessment Consortium with regards to violation of the Interstate Compact Clause of the U.S. Constitution and loss of the state’s sovereignty over education policy.
John Sauer’s resume provides some indication of the significance of his assertions as they are reflected by his academic and professional accomplishments:
J.D., magna cum laude, Harvard Law School, 2004
M.A., Philosophy, University of Notre Dame, 2000
B.A., Theology, Oriel College, Oxford University, 1999 Rhodes Scholar
B.S.E., Electrical Engineering, summa cum laude, Duke University, 1997, Varsity Letter, Wrestling, 1996-1997
Judicial Clerk, The Hon. Antonin Scalia, Associate Justice, U.S. Supreme Court, 2005-2006
What follows is a manner of summary and paraphrasing of the verbal testimony of Mr. Sauer from the 8.8 minute below.
COMMON CORE IMPLEMENTATION AND FEDERAL DEPARTMENT OF EDUCATION ACTIONS ARE ILLEGAL
The Smarter Balanced Assessment Consortium and in fact the whole course of conduct of the Federal Department of Education has undertaken, in sort of herding and corralling states into the Common Core aligned curriculum and system of assessments has been unconstitutional under the compact clause of the federal constitution and been undertaken in violation of numerous federal statutes.
The Compact Clause of the U.S. Constitution provides in article one, section ten three that, “No state shall without the consent of congress enter into an agreement or compact with another state.”
The Smarter Balanced Assessment Consortium is unquestionably a compact, and is unquestionably something that congress has never consented to. It is therefore unconstitutional.
SHOCKING FEDERAL GOVERNMENT COURSE OF CONDUCT
It constitutes a shocking, a very surprising, course of conduct of federal overreach and federal taking over of education that runs counter to hundreds of years of our constitutional tradition which allocates to state and local entities control over public education.
I think it quite clear that the current federal department of education made it a priority, probably it’s key priority, for this particular administration, to engage in a regulatory course of conduct that would effectively substitute the requirements of the No Child Left Behind Act which for better or worse, was actually passed through congress, was voted on by elected representatives and became a law of the United States, with a regulatory regime that has never been signed off on by congress.
Congress has repeatedly, again and again, emphasized that nothing that it authorizes the federal Department of Education to do should permit that department to engage in quote, “Any kind of direction, supervision, or control of curriculum or programs of instruction,” in state or local education.
VIOLATED PROHIBITIONS OF FEDERAL LAW
In the Elementary and Secondary Education Act it is stated that, “no state shall be require academic content or student achievement standards approved or certified by the federal department as a condition of receiving federal funds under the ESEA, yet that is exactly what we are seeing in the past essentially five or six year course of conduct by the federal Department of Education.
ELABORATE GOVERNANCE STRUCTURE OF NORTH DAKOTA’S CONSORTIUM
North Dakota also became a member of Smarter Balanced in 2010 and there are several features of these consortia that when you look at the legal documents that state officials signed off on. These documents involve very surprising commitments in many ways.
The consortia have elaborate external governing structures with a governing board and executive committees. They have their own staff, they purport to operate outside the open records laws of the various states that they are involved with and the federal government. The agreements involve a binding agreement by the state officials who sign-off on them to abide by the decisions of the governing boards on key areas of educational policies which the constitutional tradition allocates to those very states.
NORTH DAKOTA CEDING OF EDUCATION POLICY AUTHORITY
There is therefore a ceding of state sovereignty that is involved in the signing of these documents. They also involve binding commitments to Common Core, to use the assessments aligned with Common Core and they involved not surprisingly the substantial involvement of the federal program officers so that the federal government was actively involved in the work of these consortia over the past four years as they developed the assessments aligned to Common Core.
The Smarter Balanced Assessment Consortium did apply for hundreds of millions of dollars for federal funding to write these assessments, and in it’s application it said that the purpose of this consortia is to, radically reshape the education systems of the participating states. So, make no mistake, there was always a radical, far reaching, federally involved intention in the way that all of this was implemented.
More recently Smarter Balanced arranged to relocate itself and has since kind of reinvented itself by moving to and being housed at the University of California. In exchange for that it asked all member states to sign a new memorandum of understanding. North Dakota signed their memorandum in November. The session of local and state authority over education remains essentially the same in the new memorandum.
In Section 3.1 of that memorandum, the state purports to making a binding commitment to agree to be bound by the decisions of the governing board of the consortium and the state is one of twenty one member states, in decisions of the consortium on decisions on areas of relevant areas of state and local educational policy. North Dakota has ceded it’s constitutionally protected sovereignty over state and local educational policy.
There are threats to the sovereignty of the states by officials rather than legislators making agreements to abide by decision of a completely external entity that not based in North Dakota that the state legislators have no effect over.