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IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI

FRED N. SAUER, )ANNE GASSEL, and )GRETCHEN LOGUE, )

) Cause No. 14AC-CC00477Plaintiffs, )

) Division IIvs. )

))

JEREMIAH W. (JAY) NIXON, et al., ))

Defendants. )

MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FORPRELIMINARY 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. SBAC’s 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 SBAC’s attempt to “radically reshape” Missouri’s

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.

SBAC’s 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”) unilaterally—without authorization from the Missouri General

Assembly—executed 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 Missouri’s behalf, including adopting the Common Core assessment

standards—as developed by SBAC—and submitting to SBAC’s 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 Washington—purportedly acting on behalf of SBAC and its

member states—submitted 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 SBAC’s 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

SBAC’s primary media contact, once SBAC’s 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 [SBAC’s] 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 Education’s (“DESE’s”) 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 funds—as “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

movant’s 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 injunction’s 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 Ass’n, 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 Missouri’s 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 Missouri’s 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) Missouri’s 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 Missouri’s purported participation therein are unlawful and void.

1. SBAC requires Congressional authorization under the Compact Clause becauseit 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 Clause—and thus require congressional

authorization—only 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 Comm’n, 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 Comm’n, 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 Congress’s constitutionally allocated authority and therefore falls

squarely within the scope of the Compact Clause. In short, SBAC’s 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 becauseit threatens the sovereignty of both member and non-member states to controleducational 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 Constitution—A 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 Comm’n, 434 U.S. at 485

(White, J., dissenting)). These recent pronouncements accord with the Court’s 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.

SBAC’s 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 tests—such as the SAT, ACT, and

Advanced Placement exams—have 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 becauseit 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 compact’s 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,

SBAC’s 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 SBAC’s operations can be made by the organization’s Executive Committee,

without approval or input by member states. Id. at 9-10. Thus, SBAC’s 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 SBAC’s 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 Comm’n, 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 SBAC’s

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 consortium’s 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

Consortium”—decisions such as prescribing the details of the educational-assessment system

that member states must adopt—often can be made by SBAC’s 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 Comm’n, 434 U.S. at 473;

Northeast Bancorp, 472 U.S. at 175. Here, SBAC’s 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 SBAC’s 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, SBAC’s

Governance Structure Documents specifically requires “approval” of SBAC’s Executive

Committee before a state can withdraw from the consortium. Pet., Ex. 4, at 14. Thus, under

SBAC’s governance structure, SBAC’s 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 Comm’n, 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

consortium’s policies. See SBAC Governance Document, Exhibit 4 to Plaintiffs’ Petition, at 4

(requiring member states to support SBAC’s decisions and adopt the standards established by

SBAC); id. at 9-10 (authorizing decision making by SBAC’s 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 historicalpractice, as similar compacts in the past were submitted to Congress’s consent.

It is also instructive that SBAC’s 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 Missouri’s 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. SBAC’s existence and Missouri’s purported participation in SBAC violatenumerous federal statutes prohibiting the Federal Government from controllingcore aspects of education.

SBAC’s existence and Missouri’s 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 SBAC’s

activities, has unlawfully sought to prescribe even minute details of the curricula of America’s

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 ofany educational institution, school, or school system, or over the selection of libraryresources, textbooks, or other printed or published instructional materials by anyeducational 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 theDepartment shall be construed to authorize the Secretary or any such officer to exerciseany direction, supervision, or control over the curriculum, program of instruction,administration, or personnel of any educational institution, school, or school system, overany 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 orschool 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 school’s 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

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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

Education—with the cooperation of state officials such as Governor Nixon and Commissioner

Nicastro—induced 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” standards—that is, the standards described in the RTTT grant-

application invitations—the 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 standards—that is, the Common Core

standards—the 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 school’s 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, California’s 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 Education’s 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 (“DESE’s”)

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 Missouri’s 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 Nicastroto SBAC, as well as the state Board of Education’s adoption of the Common Coreassessment 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 Education’s 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 Education’s adoption of the Common Core

assessment standards clearly violates § 160.514.1 and therefore is void.

Because Missouri’s purported participation in SBAC is premised on the implementation

of unlawful educational standards, Missouri’s continued involvement with SBAC—especially

the impending payment of $4.3 million to SBAC in the form of membership fees—also 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, 2014Respectfully submitted,

CLARK & SAUER, LLC

/s/ D. John SauerD. John Sauer, #58721Michael Martinich-Sauter, #660657733 Forsyth Blvd., Suite 625St. Louis, MO 63105Telephone: (314) 332-2980Facsimile: (314) 332-2973jsauer@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 Court’s electronic filing

system upon the following:

James R. LaytonSolicitor General207 West High StreetJefferson City, Missouri 65101James.Layton@ago.mo.gov

/s/ D. John Sauer