Mauricio v. Daugaard

#27931, #27936-a-GAS
2017 S.D. 22
IN 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.
#27931, #27936

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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