Mauricio v. Daugaard , 2017 S.D. LEXIS 53 ( 2017 )

#27931, #27936-a-GAS
2017 S.D. 22IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
AMBER MAURICIO and
SHELLI GRINAGER, Plaintiffs and Appellants,
v.
DENNIS DAUGAARD, in his official
capacity as the Governor of the State
of South Dakota, and THE STATE OF
SOUTH DAKOTA, and DR. MELODY SCHOPP,
in her official capacity as the Secretary
of the South Dakota Department of Education,
and RICHARD SATTGAST, in his official capacity
as South Dakota State Treasurer, and SOUTH
DAKOTA DEPARTMENT OF EDUCATION, and
SOUTH DAKOTA BOARD OF EDUCATION,
and OFFICE OF THE STATE TREASURER
OF SOUTH DAKOTA, Defendants and Appellees.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SIXTH JUDICIAL CIRCUIT
HUGHES COUNTY, SOUTH DAKOTA
****
THE HONORABLE MARK BARNETT
Judge
****
KATE OLIVERI of
Thomas More Law Center
Ann Arbor, Michigan
and
ROBERT J. ROHL of
Johnson Eiesland Law Offices, PC
Rapid City, South Dakota Attorneys for plaintiffs and
appellants.
****
ARGUED FEBRUARY 14, 2017
OPINION FILED 05/03/17
MARTY J. JACKLEY
Attorney General
RICHARD M. WILLIAMS
Deputy Attorney General
Pierre, South Dakota
HOLLY FARRIS
Special Assistant Attorney General
Department of Education
Pierre, South Dakota Attorneys for defendants and
appellees.
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SEVERSON, Justice
[¶1.] Amber Mauricio and Shelli Grinager filed a complaint seeking
declaratory and injunctive relief. They asked the circuit court to declare that an
educational consortium, the Smarter Balanced Assessment Consortium, to which
the State is a member, is in violation of the United States Constitution and thus
illegal and void. They sought a permanent injunction to prevent the State from
disbursing funds to SBAC. Plaintiffs also alleged in their complaint that the State
is administering educational assessments in violation of South Dakota law.
Plaintiffs and the State sought summary judgment. The circuit court granted
summary judgment in favor of the State. Plaintiffs appeal, and the State has filed a
notice of review. We affirm.
Background
[¶2.] In 2009, the National Governors Association and the Council of Chief
State School Officers initiated an effort to develop a national, uniform set of
standards in English language arts and mathematics for grades K-12, referred to as
the Common Core State Standards. In February 2009, Congress passed the
American Recovery and Reinvestment Act of 2009 (ARRA). Pub. L. No. 111-5, 123
Stat. 115. As part of ARRA, Congress authorized educational incentive grants to be
administered by the Secretary of the Department of Education. See 20 U.S.C. §
10006 (2012). States seeking grants under ARRA needed to submit an application
that included an assurance that the state “(A) will enhance the quality of the
academic assessments it administers . . . [and] (C) will take steps to improve State
academic content standards and student academic achievement standards
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consistent with section 9871 (e)(1)(A)(ii) of [Title 20].” 20 U.S.C. §
10005(d)(4)(2012).
[¶3.] In November of 2009, the Department of Education (DOE) introduced
the Race to the Top Fund, which invited states to apply for grants authorized under
ARRA. The DOE would select recipients of funds based on enumerated criteria,
which included a state’s “commitment to adopting a common set of high-quality
standards . . . [and] to improving the quality of its assessments[.]” Race to the Top
Fund; Notice Inviting Applications for New Award for Fiscal Year (FY) 2010, 74
Fed. Reg. 59,836, 59,843 (Nov. 18, 2009). A state could demonstrate its
commitment by participating in a consortium of states working “toward jointly
developing and adopting a common set of K-12 standards” and “developing and
implementing common, high-quality assessments . . . aligned with the consortium’s
common set of K-12 standards[.]” Id.[¶4.] In April 2010, DOE announced that it would provide “funding to
consortia of States to develop assessments that are valid, support and inform
instruction, provide accurate information about what students know and can do,
and measure student achievement against standards designed to ensure that all
students gain the knowledge and skills needed to succeed in college and the
workplace.” Race to the Top Fund Assessment Program; Notice Inviting
Applications for New Awards for Fiscal Year (FY) 2010, 75 Fed. Reg. 18,171, (Apr.
9, 2010). To be eligible for a grant, a consortium of states would need to include “at
least 15 States, of which at least 5 States must be governing States[.]” Id. Each
state in the consortium needed to submit an assurance that, “to remain in the
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consortium, the State will adopt a common set of college- and career-ready
standards . . . no later than December 31, 2011, and common achievement
standards . . . no later than the 2014-2015 school year.” Id. at 18,174.
[¶5.] Two consortiums were formed to take advantage of the assessment
funding. One was the Smarter Balanced Assessment Consortium (SBAC), and the
other was the Partnership for Assessment of Readiness for College and Careers.
The SBAC grant application explained that SBAC would develop a uniform “multi-
state assessment system based on the Common Core State Standards.” The DOE
awarded a grant of approximately $159 million in Race to the Top Funds to SBAC
and awarded over $15 million to help participating states successfully transition to
common standards and assessments.
[¶6.] In 2010, South Dakota executed a memorandum of understanding,
joining SBAC and becoming an advisory state. South Dakota subsequently became
a governing state member. 1 It agreed to implement statewide, SBAC’s summative
assessment in mathematics and English language arts for grades three through
eight and high school no later than the 2014-2015 school year. It also agreed to
adhere to the governance of SBAC; to support SBAC’s decisions; follow agreed-upon
timelines; to be willing to participate in the decision-making process and final
decisions; and to identify and implement a plan to address barriers in state law,
statute, regulation, or policy to implementing SBAC’s proposed assessment system.
1. The Governor asked that South Dakota become a governing state in 2011,
after the State had adopted Common Core.
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[¶7.] SBAC’s federal funding from the grant ended in late 2014. SBAC
subsequently moved its operations to the University of California, Los Angeles
(UCLA). Since July 1, 2014, SBAC has operated in coordination with UCLA’s
Graduate School of Education and Information Studies and its National Center for
Research on Evaluation, Standards and Student Testing. In late 2014, South
Dakota’s Secretary of the Department of Education entered into a new
Memorandum of Understanding and Agreement (MOUA) with the Regents of the
University of California (UC). The 2014 MOUA is the subject of this lawsuit. In the
MOUA, the State agreed to continue participation in SBAC. It also agreed to
participate in SBAC’s governing board and to be bound by SBAC’s governing board
procedures and “all other decisions and actions” of the governing board that were
intended to bind SBAC’s members. The MOUA established an annual fee. The
State’s fee for 2014-2015 was $680,628.50.
[¶8.] In November 2015, Plaintiffs, Amber Mauricio and Shelli Grinager,
filed a complaint seeking declaratory and injunctive relief against the State. They
alleged that SBAC constitutes an interstate compact in violation of the Compact
Clause of the United States Constitution, Article I, Section 10, Clause 3, which
requires congressional approval of certain interstate agreements and compacts. It
is undisputed that SBAC was not submitted for congressional approval. They also
asserted that SBAC assessments violate SDCL 13-3-55, which requires, in part,
that “[e]very public school district shall annually administer the same assessment
to all students in grades three to eight, inclusive, and in grade eleven. The
assessment shall measure the academic progress of each student.” Because the
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SBAC assessments are computer adaptive, Plaintiffs maintained that SBAC
assessments are different every time that a student takes one.
[¶9.] The State filed a motion to dismiss the complaint, and in subsequent
briefing, the State requested that, if the court were to consider documents outside of
the pleadings, the court treat the State’s motion to dismiss as a summary judgment
motion under SDCL 15-6-12(b). Plaintiffs also sought summary judgment. The
circuit court held a hearing on April 4, 2016, and issued a memorandum decision on
June 13, 2016. The court denied the State’s motion to dismiss and Plaintiffs’ motion
for summary judgment. It granted summary judgment in favor of the State. The
court concluded that SBAC constitutes an interstate compact that does not need
congressional approval. It also determined that SBAC assessments did not violate
SDCL 13-3-55. Plaintiffs allege that both determinations are erroneous. According
to Plaintiffs, the member states must obtain congressional approval of SBAC.
Through notice of review, the State alleges that the court erred by determining that
an interstate compact exists.
Standard of Review
[¶10.] “We review a circuit court’s grant of summary judgment to determine
whether genuine issues of material fact exist and whether the law was applied
correctly. ‘When the material facts are undisputed, this Court’s review is limited to
determining whether the trial court correctly applied the law.’” W. Nat. Mut. Ins.
Co. v. Gateway Bldg. Sys., Inc., 2016 S.D. 85, ¶ 7, 887 N.W.2d 887, 890 (quoting
Swenson v. Auto Owners Ins. Co., 2013 S.D. 38, ¶ 12, 831 N.W.2d 402, 407).
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Analysis
Whether the consortium constitutes an interstate agreement or compact requiring
congressional approval.
[¶11.] The Compact Clause of the United States Constitution, Article I,
Section 10, Clause 3, provides:
No State shall, without the Consent of Congress, lay any Duty of
Tonnage, keep Troops, or Ships of War in time of Peace, enter
into any Agreement or Compact with another State, or with a
foreign Power, or engage in War, unless actually invaded, or in
such imminent Danger as will not admit of delay.
As early as 1893, the United States Supreme Court addressed the clause,
determining that “[l]ooking at the clause in which the terms ‘compact’ or
‘agreement’ appear, it is evident that the prohibition is directed to the formation of
any combination tending to the increase of political power in the states, which may
encroach upon or interfere with the just supremacy of the United States.” Virginia
v. Tennessee, 148 U.S. 503, 519, 13 S. Ct. 728, 734, 37 L. Ed. 537 (1893). The Court
specifically adopted that rule in New Hampshire v. Maine, 426 U.S. 363, 369, 96 S.
Ct. 2113, 2117, 48 L. Ed. 2d 701 (1976), and again in U.S. Steel Corp. v. Multistate
Tax Comm’n, 434 U.S. 452, 471, 98 S. Ct. 799, 812, 54 L. Ed. 2d 682 (1978). It
explained that “[t]his rule states the proper balance between federal and state
power with respect to compacts and agreements among States.” U.S. Steel Corp.,
434 U.S. at 471, 98 S. Ct. at 812. And the Court has declined a relatively recent
invitation to read the Compact Clause literally. See id. at 460, 98 S. Ct. at 806 (“At
this late date, we are reluctant to accept this invitation to circumscribe modes of
interstate cooperation that do not enhance state power to the detriment of federal
supremacy.”).
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[¶12.] First, we consider whether the State entered into an arrangement that
amounts to an agreement or compact between states. The State’s notice of review
contends that the circuit court erred by concluding that SBAC is a compact.
According to the State, SBAC lacks “classic indicia of a compact[,]” as first discussed
by the United States Supreme Court in Northeast Bancorp, Inc. v. Bd. of Governors
of Fed. Reserve Sys., 472 U.S. 159, 175, 105 S. Ct. 2545, 2554, 86 L. Ed. 2d 112(1985). In Northeast Bancorp, the Court addressed state statutes regarding
interstate bank acquisitions. Id. at 163-64, 105 S. Ct. at 2548. Massachusetts and
Connecticut enacted statutes that only allowed out-of-state bank holding companies
to acquire local banks if the out-of-state company had its principal place of business
in another New England state. Id. at 164, 105 S. Ct. at 2548-49. The Petitioners in
Northeast Bancorp challenged the regionally-restrictive statutes. Id. at 166, 105 S.
Ct. at 2549. They alleged, among other things, that the statutes amounted to a
compact in violation of the Compact Clause. Id. The Court examined the statutes
and expressed doubt over whether the statutes amounted to a compact. It stated:
We have some doubt as to whether there is an agreement
amounting to a compact. The two statutes are similar in that
they both require reciprocity and impose a regional limitation,
both legislatures favor the establishment of regional banking in
New England, and there is evidence of cooperation among
legislators, officials, bankers, and others in the two States in
studying the idea and lobbying for the statutes. But several of
the classic indicia of a compact are missing. No joint
organization or body has been established to regulate regional
banking or for any other purpose. Neither statute is conditioned
on action by the other State, and each State is free to modify or
repeal its law unilaterally. Most importantly, neither statute
requires a reciprocation of the regional limitation. Bank holding
companies based in Maine, which has no regional limitation,
and Rhode Island, which will drop the regional limitation in
1986, are permitted by the two statutes to acquire
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Massachusetts and Connecticut banks. These two States are
included in the ostensible compact under petitioners’ theory, yet
one does not impose the exclusion to which petitioners so
strenuously object and the other plans to drop it after two years.
Id. at 175, 105 S. Ct. at 2554. The Court did not definitively determine whether the
statutes amounted to an agreement or compact. Instead, the Court determined that
“even if [it] were to assume that these state actions constitute an agreement or
compact, not every such agreement violates the Compact Clause.” Id. It upheld the
reciprocal statutes because they did not encroach or interfere with the just
supremacy of the United States. Id.[¶13.] In this case, the State emphasizes that each individual state enters
into a separate memorandum of understanding with UC; this is not an agreement
between states collectively. In addition, the State points out the following: SBAC
creates assessments that each state would have the power to create on its own; the
MOUA does not dictate state educational policy; no multistate function is regulated;
implementation of assessments is not conditioned on the action of any other state; a
state may modify or repeal its own laws unilaterally to divest itself of the
obligations imposed by the MOUA; and no state is required to contract with UC for
assessment tools.
[¶14.] On the other hand, citing to case law explaining that UC is a
corporation created by the California Constitution and an arm of the State of
California, Plaintiffs maintain that, at the very least, the MOUA constitutes an
agreement between South Dakota and California. See Armstrong v. Meyers, 964
F.2d 948, 949 (9th Cir. 1992). Furthermore, they contend that SBAC imposes
limitations on the State’s ability to withdraw, allows states to exercise powers that
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they could not exercise individually, involves delegation of sovereign power, and has
an independent governance structure. Moreover, the MOUA entered into by South
Dakota specifically contemplates participation in SBAC by other states. “Members”
is defined in the MOUA as “collectively, every state, commonwealth or United
States territory that enters into a memorandum of understanding and agreement
with UC for participation in SB [Smarter Balanced], as well as any other entities
that the Governing Board determined to provide with voting rights in SB equal to
the rights enjoyed by Member under this MOU.”
[¶15.] Similar to the United States Supreme Court in Northeast Bancorp., we
have doubts as to whether this arrangement amounts to an interstate agreement.
“But even if we were to assume that these state actions constitute an agreement or
compact, not every such agreement violates the Compact Clause.” Northeast
Bancorp, Inc., 472 U.S. at 175, 105 S. Ct. at 2554. “The relevant inquiry must be
one of impact on our federal structure.” U.S. Steel Corp., 434 U.S. at 471, 98 S. Ct.
at 811. “[T]he test is whether the Compact enhances state power quoad the
National Government.” Id. at 473, 98 S. Ct. at 812-13.
[¶16.] Accordingly, assuming without deciding that the MOUA amounts to an
interstate compact, we turn to the issue whether it enhances state power quoad the
National Government. Plaintiffs maintain that SBAC threatens the supremacy of
the federal government because it undermines a congressional policy against
nationalized educational standards and federal statutes forbidding the DOE to
implement national curriculum. See 20 U.S.C § 1232a (2012) (prohibiting
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provisions from being construed to allow federal control of education) 2; 20 U.S.C. §
3403(a)-(b)(2012) 3 (recognizing that the responsibility for education is reserved to
the states and prohibiting the DOE from construing other provisions as authorizing
DOE to exercise certain educational control over the states). Plaintiffs overstate the
federal provisions they cite, which only deal with limitations on the federal
government, not state actions. Contrary to what their argument may suggest,
Congress has not prohibited national or regional efforts to administer the same or
similar educational plans. Instead, Congress has recognized that it does not have
the authority to directly control educational systems in the states. Education is a
matter reserved to the states. See 20 U.S.C. § 3401(4) (“[I]n our Federal system, the
2. 20 U.S.C. § 1232a provides:
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, or to require the
assignment or transportation of students or teachers in order to
overcome racial imbalance.
3. 20 U.S.C. § 3403 (b) provides:
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
resources, textbooks, or other instructional materials by any
educational institution or school system, except to the extent
authorized by law.
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primary public responsibility for education is reserved respectively to the States
and the local school systems and other instrumentalities of the States[.]”); Brown v.
Bd. of Ed., 347 U.S. 483, 493, 74 S. Ct. 686, 691, 98 L. Ed. 873 (1954)(“Today,
education is perhaps the most important function of state and local governments.”).
Congress has made it clear that the DOE has no authority to nationalize curricula. 4
But it has not banned efforts by the states to regionalize or nationalize certain
aspects of educational policy; nor could it.
[¶17.] Even Plaintiffs admit that educational policy is a sovereign power of
the state. In order to determine that Congress must approve or disapprove of
SBAC, Plaintiffs would need to identify federal authority in this area, which they
have not done. Allowing Congress to determine this issue would be granting the
federal government expanded power by giving it authority over administrative
educational decisions, in direct contravention of the power reserved to the states in
the Tenth Amendment of the United States Constitution. U.S. Const. amend. X.
Although SBAC no longer receives federal funds, there is no question that the
federal government can incentivize, to a degree, certain educational goals.
However, the federal government does not have the authority to prohibit the states
from working together to create educational assessments geared towards the
content standards that each state has independently decided to adopt. Accordingly,
there is no impact, actual or potential, on federal supremacy resulting from the
4. Included within Plaintiffs’ argument of circumvention of congressional policy
is their argument that DOE has coerced states into adopting national
education standards. As the circuit court noted, we have no jurisdiction to
pass judgment on the actions of DOE; it is not a party to this lawsuit.
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states working together to create certain curricula or assessments. See U.S. Steel
Corp., 434 U.S. at 472, 98 S. Ct. at 812 (holding that the inquiry is one of potential,
rather than actual impact upon federal supremacy).
[¶18.] Next, Plaintiffs maintain that SBAC’s existence threatens the
sovereignty of its member states because it binds states to educational policy
decisions of SBAC’s governing board and executive committee. Plaintiffs contend
that interstate compacts that threaten the sovereignty of member states or non-
member states also require congressional approval. Plaintiffs simultaneously
assert that SBAC also enhances state power beyond what each state could exercise
individually. According to Plaintiffs, SBAC allows governing members to dictate
the educational decisions of non-governing members. Although the United States
Supreme Court has considered in dicta arguments concerning the effect that a
compact may have on the sovereignty of member and non-member states, it is
unclear how those issues relate to the test that the Court has established, which
considers whether state power is enhanced “at the expense of federal supremacy.”
See U.S. Steel Corp., 434 U.S. at 472, 477, 98 S. Ct. at 813, 815 (considering
whether there was a delegation of sovereign power under the Multistate Tax
Compact).
[¶19.] Nevertheless, we note that the Governing Board is not concerned with
dictating educational policy. According to the terms of the MOUA, “[t]he Governing
Board will provide direction and oversight with respect to Products and Services[ 5]
5. The MOUA, in paragraph 1.21, states that:
(continued . . .)
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to be provided by SB to the Members. The Governing Board will be responsible for
approving the Planning Documents[ 6] annually and otherwise as required by this
MOU or by the Governing Board Procedures.” MOUA paragraph 3.1 (defining the
“Role of Governing Board Generally”) (emphasis added). A review of Exhibit B to
the MOUA, which lists the “Products and Services” available to a member for the
fiscal year 2014-2015, confirms that SBAC is providing assessment packages and
relevant services such as project management and technical support.
[¶20.] Accordingly, SBAC is not concerned with dictating educational policies.
Instead, it is concerned with developing and providing assessments to measure
student performance and developing relevant tools and services necessary to
administer those assessments. It is important to note, as the circuit court did, that
_________________________________________________
(. . . continued)
‘Products and Services’ means, those products and services that
Member obtains from UC pursuant to this MOU, which will include
(without limitation): general operational support; assessment and item
design; interoperability and certification assistance; applications
development and maintenance pursuant to agreed upon milestones
and service levels; access to and use of the SB Website; reporting
services; and, to the extent included in or otherwise relevant to the
foregoing, the Consortium Assets, the SB Materials, and the UC
Materials. The specific Products and Services available to Member at
the Effective Date are set forth in Exhibit B. The Products and
Services are subject to change from time to time as set forth in Section
5.5(a) below. Section 5.5(a) also sets forth the process by which
Member will identify Products and Services for purchase under this
MOU.
6. The MOUA, in paragraph 1.20, states that “‘Planning Documents’ means,
with respect to SB, the annual budget (including Annual Operating Expenses
for each fiscal year), staffing plans, project schedules, descriptions of Products
and Services to be offered to Members, and such other planning and
management documentation as the Governing Board determines for each
fiscal year.”
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South Dakota was not forced by SBAC to adopt Common Core State Standards. It
chose to do so and entered into a contract to ease the financial burden of developing
assessments aligned with those educational goals. The same thing can be said for
other member states. Each state has the power to contract with a provider of
assessments. By participating in SBAC, the member states have eased the
financial burden of meeting their assessment needs. As the United States Supreme
Court has stated:
The Constitution did not purport to exhaust imagination and
resourcefulness in devising fruitful interstate relationships. It
is not to be construed to limit the variety of arrangements which
are possible through the voluntary and cooperative actions of
individual States with a view to increasing harmony within the
federalism created by the Constitution.
U.S. Steel Corp., 434 U.S. at 470, 98 S. Ct. at 811.
[¶21.] Due to the above factors, SBAC is not a compact or agreement that
requires the consent of Congress. It does not enhance the states’ power quoad the
national government. South Dakota, along with other states, decided to implement
Common Core State Standards and properly entered into an agreement to develop
assessments with respect to those standards.
Whether SBAC assessments violate SDCL 13-3-55.
[¶22.] Finally, Plaintiffs assert that the SBAC assessments are in violation of
South Dakota law due to their computer-adaptive nature. SDCL 13-3-55 provides:
Every public school district shall annually administer the same
assessment to all students in grades three to eight, inclusive,
and in grade eleven. The assessment shall measure the
academic progress of each student. Every public school district
shall annually administer to all students in at least two grade
levels an achievement test to assess writing skills. The
assessment instruments shall be provided by the Department of
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Education, and the department shall determine the two grade
levels to be tested. The tests shall be administered within
timelines established by the Department of Education by rules
promulgated pursuant to chapter 1-26 starting in the spring of
the 2002-2003 school year. Each state-designed test shall be
correlated with the state’s content standards. The South Dakota
Board of Education may promulgate rules pursuant to chapter
1-26 to provide for administration of all assessments.
According to Plaintiffs, same assessment means that every student must receive the
same test. The assessment adjusts the difficulty of questions as a student
progresses in the assessment. Students who correctly answer a question will then
receive a more challenging question while those who answer incorrectly will receive
an easier question. Plaintiffs note that assessment is a synonym of test and cite to
a dictionary definition of test defining it as “an examination to determine factual
knowledge or mental proficiency esp. given to students during the course of a school
term and covering a limited part of the year’s work.” Webster’s Third New
International Dictionary 131 (2002). They also provide us with definitions of same
which include “resembling in every way” and “conforming in every respect.” Id. at
2007. According to Plaintiffs, SBAC clearly fails to satisfy this requirement because
of the tailored set of questions that each student receives. This, Plaintiffs state,
prevents direct comparisons of an individual student’s result with his or her peers,
and thus circumvents the “fairness in student assessments.” The State asserts that
reading the statute in such a literal way would require that each student, in every
grade to be tested, must answer the same questions, i.e. third graders must answer
the same English and math questions as the eighth graders.
[¶23.] Plaintiffs’ reliance on assessment and test being synonyms is
misplaced. They conflate test with questions. SDCL 13-3-55 does not require that
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every student answer identical questions in order to determine his or her academic
progress. Even if we only use Plaintiffs’ provided dictionary definition of test, the
assessment clearly meets the requirement. Test and assessment are broader terms
than questions. And same is also commonly understood to mean “similar in kind,
quality, quantity, or degree.” The American Heritage College Dictionary 1205 (3d
ed. 1993). Each student receives an SBAC examination that operates according to
an overall blueprint, which specifies the number of and types of questions
associated with each section of the assessment. The assessment draws the
questions from a bank of potential questions, and each test must meet the
requirements of the test blueprint. The assessment is meant to gain a more
complete picture of an individual’s educational progress. There is little logic behind
Plaintiffs’ assertion that academic progress can only be measured if all students
answer the same questions so that individual results can be compared to that of
other students. In such a comparison, all students may fail certain educational
benchmarks but one or more students may appear to succeed simply because his or
her failure was less severe than other students. If the Legislature wanted to ensure
that each student answered identical questions to determine academic progress, it
could have defined assessment or test in such a way.
Conclusion
[¶24.] Article I, Section 10, Clause 3 of the United States Constitution
requires congressional consent of those interstate agreements and compacts that
enhance state power at the expense of the just supremacy of the federal
government. Regardless of whether SBAC constitutes an interstate agreement or
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compact, it does not enhance state power quoad the national government and
therefore does not need congressional approval. Based on this conclusion we need
not decide the State’s question on notice of review whether SBAC constitutes an
interstate compact. In addition, SBAC assessments do not violate SDCL 13-3-55.
Therefore, we affirm the circuit court’s grant of summary judgment in favor of the
State.
[¶25.] GILBERTSON, Chief Justice, and ZINTER, WILBUR, and KERN,
Justices, concur.
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