In a big victory for opponents of Common Core, the Missouri court of appeals dismissed the State’s appeal, leaving in place a lower court decision that blocked Missouri’s membership in the Smarter Balanced Assessment Consortium (“SBAC”). The ruling, issued on November 17th, dismissed as moot an appeal by Missouri Governor Jay Nixon, and thereby upheld the lower court’s decision that Missouri’s participation in SBAC was a violation of the Compact Clause of the U.S. Constitution and numerous federal and state statutes.
The Compact Clause challenge to SBAC was first conceived and implemented by Missouri attorney, D. John Sauer, of the James Otis Law Group, based in St. Louis, who brought the action on behalf of state taxpayers. The Thomas More Law Center (TMLC), a national public interest law firm based in Ann Arbor, MI, filed a friend of the court brief supporting the lower court decision in that case.
Since then, the Thomas More Law Center and the James Otis Law Group have joined forces to bring similar challenges to the constitutionality of the Common Core testing consortia in several other states, including North Dakota, South Dakota and West Virginia. Erin Mersino, TMLC senior trial counsel, has worked alongside Sauer in developing the three additional lawsuits.
Richard Thompson, President of the Thomas More Law Center, commenting on the collaboration between the two firms. “John Sauer is an extraordinary attorney. We are privileged to work alongside John. In this truly cooperative effort, several other attorneys have donated their time as local co-counsel: Arnold Fleck, of Bismarck, ND, Jeffrey Kimble and Ryan Kennedy of Robinson & McElwee, PLLC, in Charleston, WV, and Robert J. Rohl of Johnson Eiesland Law Offices, PC, in Rapid City, SD.”
John Sauer obtained his law degree from Harvard Law School where he graduated magna cum laude. He clerked for U.S. Supreme Court Justice Antonin Scalia before becoming an assistant U.S. attorney. He eventually entered into private practice and recently founded the James Otis Law Group. Prior to his law degree, Sauer attended Duke University before attending Oxford University as a Rhodes Scholar. He subsequently received his Masters from the University of Notre Dame.
Thompson, commenting on the appeals court ruling, said “The effect of the court of appeals ruling is to leave in place the first and only state court ruling that tears down the Common Core edifice constructed by the federal government.”
Shortly after the lower court decision holding SBAC unconstitutional, the Missouri General Assembly passed House Bill 2, later signed by Governor Nixon, which expressly prohibits the Missouri Department of Elementary and Secondary Education (DESE) from using funds to pay SBAC license fees or membership dues. An opinion from DESE General Counsel stated that the language contained in H.B. 2 specifically prohibited the state from participating as a member or as a licensee of SBAC and recommended that Missouri’s membership in SBAC be terminated immediately.
As a part of its continuing efforts to help parents combat Common Core, the Thomas More Law Center developed a Test Refusal and Student Privacy Protection Form and a Common Core Resource Page as a general reference and guide.