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Mauricio v. Daugaard

Supreme Court of South Dakota

May 3, 2017

AMBER MAURICIO and SHELLI GRINAGER, Plaintiffs and Appellants,
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.

          ARGUED FEBRUARY 14, 2017


          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.

          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.

          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.


         [¶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 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 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.

         [¶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 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 ...

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