In the case  14AC-CC00477 Sauer et al v Jeremiah Nixon et al, the judge issued a Temporary Restraining Order on November 25, 2014  prohibiting the state from making payments to SBAC for membership dues.

“The Court Orders that until further order, decree, or judgment of the Court, Defendants, and each of them, and all those in active concert or participation with them are enjoined and restrained from making any payments in the form of membership fees to the Smarter Balance Assessment Consortium, the University of California, or the National Center for Research on Evaluation, Standards and Student Testing, whether directly or indirectly, including but not limited to disbursements pursuant to “Invoice #1” issued to the State by “Smarter Balanced at UCLA” and dated September 29, 2014. Unless otherwise provided by this Court, this temporary restraining order will expire fifteen days from the date on which it it entered.”

The Solicitor General, in arguing for the state defendant, argued that  if the fees were not paid, there would be no assessments available in Missouri schools this year at all.  This contradicts what an SBAC spokesperson said on the phone to legal counsel for the plaintiff when she said  that the membership fees are separate and distinct from the charge for using the assessments.  It also seems to contradict provisions of federal regulations that require the assessments developed by the consortia to be generally available to non-member states. Neither the TRO nor the suit itself would bar the state from purchasing the SBAC test outright. However, if other states were to withdraw their membership based on the same grounds, this would require a significant reorganization of the test supplier into a commercial venture as opposed to a testing consortia of states.  As such it would weaken the federal government’s requirement that states use the consortia tests in order to comply with federal regulation or waivers, because then the federal government would be granting a monopoly to a particular private company.

This ruling is a sign that the court sees some merit in the case, that SBAC may be an illegal interstate compact and thus the state’s membership in it should be null and void.


Published November 26, 2014

Anne Gassel

Anne has been writing on MEW since 2012 and has been a citizen lobbyist on Common Core since 2013. Some day she would like to see a national Hippocratic oath for educators “I will remember that there is an art to teaching as well as science, and that warmth, sympathy and understanding are sometimes more important than policy or what the data say. My first priority is to do no harm to the children entrusted to my temporary care.”

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