The following is a report from Dr. Mary Byrne on the latest hearing of the Education Appropriations Committee. This is very important information regarding the SBAC tests that are currently scheduled to start next month. Dr. Byrne did not want to report for others present at the hearing as to the nature of their comments so we have included an audio file of the full hearing. Please read to the very bottom an important response from Commissioner Vandeven regarding testing next month.

ByrneOn Wednesday, March 4, 2015 I attended a hearing of the House Appropriations Elementary and Secondary Education Committee. The purpose of the hearing was for committee members to gather information and form a plan for financing K-12 education in Missouri in response to two questions: (1) what are the implications of Judge Green’s ruling for statewide testing, specifically the SBAC tests aligned to the Common Core State Standards, and (2) if not SBAC, what should Missouri do in terms of assessment to focus on education?

Before listening to the audio of the testimonies given at the hearing, a timeline of events and a bit of background information will provide a context for what was said by various attendees.

November 17, 2014, a memo distributed in the Snohomish School District in Washington state (the state that is the Lead Procurement State and oversees all financial procurement on behalf of the SBAC consortium, and which is also scheduled to administer the SBAC in 2015) reported,

The Comprehensive Interim Assessment is scheduled for release January 6, 2015 and the Interim Assessment Blocks are scheduled for release January 27, 2015. In addition, the interim assessments are predicted to be fixed and not computer adaptive for at least the first year until the item bank is adequately large. (

January 9, 2015, Missouri’s Assistant Commissioner of Education Sharon Helwig distributed an administrative memo to school administrators and test coordinators stating that the interim SBAC tests would not be available until the fall of 2015, and that DESE and “our vendor” [McGraw Hill] are “moving focus to the preparation of student practice items and tools for the spring 2015 summative English language arts and mathematics assessments.” (

The Snohomish and DESE memos do not discuss that, initially, the consortium was set to release the interim tests last fall, 2014. The timeline was then delayed to December 2014, and then January 2015.

January 30, 2015 An EdSource article reported,

The Smarter Balanced Assessment Consortium has finally released the “interim assessments” . . . the delay was related to the fact that teachers were not finished vetting the test questions until the end of October.

Test designers also had to respond to late requests by state officials and others about how to fine tune ways to score essay portions of the computer-based tests.

February 5, 2015, Assistant Commissioner Helwig distributes an administrative memo stating,

In order to ensure a smooth administration of the new assessment system, Missouri will administer computerized “fixed form” assessments, much like the EOC model, for the spring 2015 summative assessments for grades 3-8. . . . Test items will be Smarter Balanced items and will be designed according to the Smarter Balanced test blueprint. . . . Missouri remains a part of the Smarter Balanced Assessment Consortium. The change will have no impact on future implementation of a computer adaptive test. Fixed forms will be used for one year, and Missouri will complete implementation of computer adaptive testing in the 2015-16 school year. (

February 24, 2015, Judge Daniel Green, in the Circuit Court of Cole County, Missouri, decided in favor of the plaintiffs in Sauer v Nixon (filed September 12, 2014) and found that,

. . . the Smarter Balanced Assessment Consortium, . . . is an unlawful interstate compact to which the U.S. Congress never consented, whose existence and operation violate the Compact Clause of the U.S. Constitution, Article I, §10, cl.3, as well as numerous federal statutes; . . . Accordingly, the Court DECLARES that any putative obligations, including the obligation to pay membership fees, . . . are illegal and void (

February 25, 2015, The day after the Sauer v Nixon decision was publicized, Speaker Diehl announced the permanent removal of funds from DESE for payment of membership fees to the Smarter Balanced Assessment Consortium and stated, “The House will act immediately to strip all funding SBAC funding from the budget with the goal of ending our membership with this group that is in clear violation of the federal and state constitutions, . . .” (

Also, on

February 25, 2015, DESE released the following statement:

This lawsuit deals with our membership in the Smarter Balanced Assessment Consortium of states that are working together to create common tests. It does not impact the use of the tests themselves. We do not expect this to impact the administration of statewide tests this spring.

The Department’s General Counsel is reviewing the ruling and considering our legal options.

February 26, 2015, over 10 news media outlets reported, “Funding to be cut that provides schools information about Common Core tests,” quoting Advance, Missouri’s Superintendent Dr. Stan Seiler who said

. . .the state will no longer provide funding for schools to get information about what’s on the Common Core standardized tests, leaving schools no way to know how to prepare students. . . . With so much riding on these test scores, Dr. Seiler says going into the tests with little or no information could be detrimental.

Examples of news outlets reporting the story include:

March 4, 2015, the House Appropriations Elementary and Secondary Education Committee met for the first of a series of hearings on the issue of planning for funding of Missouri’s statewide assessments.

Let’s Recap. The SBAC consortium had breached its agreement with states to have interim assessments available in fall 2014 so that districts could prepare their students for the fully operational, summative, computer-adaptive tests scheduled for administration in spring 2015. In response, DESE announced in February (weeks before testing was scheduled to begin) an alternate plan for districts, using practice items and a fixed form test that will “have no impact” on the computer adaptive tests used in the 2015-2016 school year.

About three weeks after DESE announces its alternative plan, a Missouri federal judge determined, the existence and operations of SBAC was unlawful and that any putative obligation, including membership fees are illegal and void. (The total amount recorded on the Member Annual Fee Worksheet for 2014-2015 of the Missouri-SBAC/UCLA Memorandum of Understanding and Agreement is $4,242,000). In response to Green’s decision, Speaker of the House John Diehl instructed the chair of the House Appropriations for Elementary and Secondary Education Committee, Representative Kurt Bahr, to remove the amount of money from the DESE budget equivalent to the Smarter Balanced Assessment Consortium membership fees.

I’m not a lawyer, but it seems clear to me, and apparently to Speaker Diehl who is an attorney by profession, that according to the Sauer v Nixon decision, Missouri’s government must behave as if SBAC doesn’t exist, because government should not be involved in unlawful operations of an unlawful organization constituted through an illegal compact with other states and financed by the U.S. Department of Education that funds assessment development in violation of federal law.

DESE, however, doesn’t read Sauer v Nixon the same way. (It’s not really clear who was the decision-maker at DESE was holding the “buck” when the press release was posted. Sarah Potter is a communications director, not a policy maker; and the owner of the desk on which the buck stopped when the content of the press release was written is not mentioned. Hence, however unfair it is to innocent employees who knew nothing of the decision before it was announced, we’ll make all of DESE the responsible party until further notice). Instead, DESE fixated on the prohibition to pay membership fees and indicated that a relationship with SBAC would continue without so much as a hiccup. Therefore, there will be no change in the schedule to administer SBAC tests this spring.

In other words, in DESE’s highly selective reading and narrow interpretation of the Sauer v Nixon decision, only payment of membership fees is prohibited – never mind why payment is prohibited, that is because the existence of SBAC and its operations are illegal. Perhaps DESE has taken the meaning of Common Core architect David Coleman’s “close reading of the text” too far. Perhaps the Department’s General Counsel will take that up with attorney and Speaker of the House, John Diehl. I wish I were a fly on the wall during that conversation if it happens.

The burning question is, how does DESE continue in its relationship with SBAC without paying for membership? Well, there were some interesting arrangements made last summer. According to a September 4, 2014 SBAC press release Missouri executed an SBAC-UCLA Memorandum of Understanding and Agreement that entitled members to a “Vendor Specification Package.” That is, members received “the set of requirements, analyses, specifications, and other materials that [Smarter Balanced] SB provides to Member for the purpose of facilitating Member’s use of one or more vendors for the implementation, operation, and delivery of the Assessment System.” Members agreed to administer the SBAC developed tests through a vendor and gets the preparation materials as well. (In Missouri, that vendor is McGraw Hill – close reader David Coleman’s previous employer and contributor to Coleman’s Student Achievement Partners, the non-profit Coleman launched to consult to states in the implementation of Common Core – but that’s a story for another time.) So far, so good – membership has its privileges.

Another agreement made last summer was described in an SBAC memo known as the “Freely-Available Policy Rationale Regarding Non-Member Access” (6/26/2014) ( According to the memo,

. . . . the federal government intended that the materials developed using the Race to the Top federal grant would be free to any state. Further, some argue that a state’s prior membership fees should provide continued access to Consortium materials developed in part with those member fees. . . . The Department expects that any state or entity wishing to administer the consortium’s assessment system (either the summative assessments or the entire assessment system) [emphasis added] without modification after the grant period would be permitted to do so, provided they comply with the consortium’s requirements for administering the assessments.

Note that the consortium’s assessment system may include the entire assessment system.

Now it’s getting clearer . . . when Judge Green prohibited Missouri from paying SBAC membership fees, DESE administrators fell back to Plan B, and determined that it could continue to administer the tests as allowed in the Freely-Available Policy which was derived from the 2010 Race to the Top grant condition that said,

Unless otherwise protected by law or agreement as proprietary information, make any assessment content (i.e., assessments and assessment items) developed with funds from this grant category freely available to states, technology platform providers, and others that request it for purposes of administering assessments, provided they comply with consortium or state requirements for test or item security. (

Here’s where it gets very interesting. According to the State of Washington Office of Superintendent of Public Instruction website, as a non-member, Missouri could access the SBAC tests for the same amount of money as the SBAC membership fee, or even become a kind of silent partner in the Consortium through a vendor. The third-party payment strategy is described as follows:

One of the key requirements from the USED is that non-members must not have to incur a greater cost than the Consortium charges members. In general, the policy will allow non-members to access the Smarter Balanced Assessment for the same membership fee charged to members. [emphasis added] Non-members, however, will not have the other benefits of membership.

We anticipate that some states may be able to procure membership in Smarter Balanced through intergovernmental agreements with UCLA. In addition, we anticipate that other states may require that service providers pay the membership fee via their test implementation contracts. [emphasis added]

Similarly, in cases in which a state does not intend to be a member but otherwise wants access to the Consortium’s materials, we anticipate that service providers may procure access to Smarter Balanced materials on behalf of a state with which they are contracting.

This explains why DESE attempted to “repurpose” its membership fee as a test fee. It appears DESE was willing to pay the same price for less perks to keep access to the Consortium tests and materials. What’s more, if it really wanted to, it could regain standing as a member of SBAC through an indirect contract arranged by a third party. Why would DESE consider such an arrangement? Perhaps the standing DESE’s coordinator of assessment,Michael Muenks, has enjoyed in the SBAC executive committee and as Missouri’s K-12 Lead is one incentive.

DESE is attempting every way possible to continue in the implementation of the SBAC assessments, and thereby enforce the implementation of the Common Core State Standards in Missouri, but, compliance with the rule of law by Judge Green and Speaker Diehl have thrown a wrench into the plan.

No wonder Superintendent Seiler was beside himself. Seiler described implementation of the SBAC as “a tough transition” and “. . . going into the test with little or no information could be detrimental.” He’s just trying to do his job, and DESE has tied administrators’ hands behind their backs with the delay of interim test availability in MO until fall 2015, and then insist that Missouri’s children take SBAC assessments without the hoped for support about their content. Add to his frustration the on-again-off-again computer-adaptive to fixed-form to computer-adaptive testing format of the SBAC as described in Assistant Commissioner Helwig’s February 5 administrative memo and it’s quite clear that students in his district, and all Missouri districts are behind the eight ball for showing well.

That said, any attempt at interpreting scores gathered from administration of SBAC and the 2014 UNstandardized test procedures could not be valid, but, they will count for Academic Progress Reporting (APR) scores, nonetheless; and the futures of students, teachers, school administrators and districts will in one way or another be effected by them.

That brings us up to the hearing. Chairman Bahr prepared those who came to give testimony by listing the order in which they would speak, Otto Fajen, Missouri National Education Association; Mike Wood, Missouri STA; Dr. Mary Byrne; Mike Mike Lodewegen, Missouri Association of School Administrators; and Dr. Margie Vandeeven, Commissioner of Education. Then, he opened the hearing.

The hearing lasted 90 minutes. Several attendees expressed their gratitude for the opportunity to speak to an issue, rather than to a bill. As you listen to the audio, know that the committee members were genuinely interested in gathering new information and asking meaningful questions. Note the harmony of ideas expressed by witnesses who were speaking to the needs of those who work with students in schools. You can detect Dr. Vandeeven’s agreement that some turmoil has caused great anxiety in our schools. Also, while you listen, keep this follow-up message that I received from Chairman Bahr’s legislative assistant in mind:

Last night, Rep. Bahr and I were discussing the committee meeting and he was very happy that the representatives were listening to you and that there was a good discussion. Today I sent out an email asking who wanted your packet and more than half the members have already replied with a note that they want to have the whole packet to read. This is not going to be a fast fix but I have great hope that we will actually do something good for the children of Missouri in the next few years.


The following is an audio recording of that hearing. The committee requested that DESE look into applying for a waiver from testing this spring on the grounds that we did not have the interim assessments promised by our vendor McGraw Hill, we do not have the full summative assessment also promised and we have a lawsuit adjudication that prohibits our membership in the testing consortia.

Commissioner Vandeven was asked about the 95% testing requirement in MSIP.  Parents and Superintendents who are locked in a battle now to get their child out of the test in April should note the comment she made at the 1:21:05  mark about student participation in the test.

“If a district does not test 5%, what will happen is on that particular content area it just shows as a non-reportable score…  For an accreditation determination to take place it takes three years so I do not expect to see anything  this year impacted by accreditation determinations on that sort of a situation. It takes multiple years, multiple indicators….”

Embed Music Files – Music podcasts – Ed Approps Hearing 3-4-15

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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