Last week, an interesting federal lawsuit was filed challenging Idaho’s involvement in the Smarter Balanced Assessment Consortium (SBAC) for allegedly violating the “Compact Clause” of the United States Constitution.
Brought on behalf of 10 Idaho taxpayers and filed by Eagle attorney Christ Troupis and Idaho Falls attorney Bryan Smith, the complaint names Gov. Butch Otter, Idaho Superintendent of Public Instruction Sherri Ybarra and the president of the Idaho State Board of Education as defendants. A copy of the complaint can be viewed here (courtesy of Idaho Education News).
Troupis unsuccessfully ran as a Republican against Idaho Attorney General Lawrence Wasden in the 2014 GOP primary. Bryan Smith similarly failed in a challenge to Rep. Mike Simpson in the Idaho Second Congressional District in that election.
The constitutional provision at issue is Article I, § 10 which states that “[n]o State shall, without the Consent of Congress, ... enter into any Agreement or Compact with another State.”
The lawsuit asserts that Idaho’s Memorandum of Understanding with SBAC, which developed common standards for English language arts and mathematics (often called “Common Core” standards) and the accompanying assessment tests, amounts to the creation of an interstate compact which, lacking congressional approval, violates this constitutional provision.
In an interview with KTVB in Boise, Troupis asserted that the lawsuit "would also serve as a definitive statement to states elsewhere that Common Core is unconstitutional and would strengthen the grassroots movement we've seen to get rid of Common Core."
Supporters of the lawsuit have pointed to a favorable lower state court decision in Missouri finding a violation of the Compact Clause by that state’s participation in Common Core. That decision is now on appeal to the Missouri Court of Appeals. Another similar lawsuit has been filed in North Dakota.
But, a review of the applicable federal court precedence on the Compact Clause may indicate that the Plaintiffs are being overly optimistic as to their chances of prevailing.
In 1985, Justice Rehnquist wrote a decision for a unanimous United States Supreme Court analyzing the validity of Massachusetts and Connecticut banking statutes which had been coordinated between the states to restrict acquisition of banking institutions in those states by entities located elsewhere.Northeast Bancorp, Inc v. Board of Governors of Federal Reserve System, 472 U.S. 159, 105 S.Ct. 2545, 86 L.Ed.2d 112 (1985).
He noted that “even if we were to assume that these state actions constitute an agreement or compact, not every such agreement violates the Compact Clause.”
Most important, Rehnquist pointed out that “[t]he application of the Compact Clause is limited to agreements that are '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.'” 472 U.S. at 175, citing New Hampshire v. Maine, 426 U.S. 363, 369, 96 S.Ct. 2113 2117, 48 L.Ed.2d 701 (1976) (citation omitted).
Under that analysis, SBAC would only violate the Compact Clause if it increased the political power of the states at the expense of the federal government. The mere creation of an agreement between states is not enough. Yet, the complaint alleges the reverse, namely that, through SBAC, the Department of Education exerts influence over the states.
My reading of the case law is that the lawsuit, as pled, may be vulnerable to a motion to dismiss, in particular the counts focused on the Compact Clause. I’m also surprised that the plaintiffs did not include a count arguing that the involvement of the U.S. Department of Education with SBAC violates federal statutes limiting the federal role in education (there is extensive language about such violations but they are not the basis of a claim for relief).
But, the complaint does assert another legal basis for terminating Idaho’s relationship with SBAC, specifically alleging a violation of Idaho parents’ right to control the education of their children under the Due Process Clause of the Fourteenth Amendment. Perhaps that claim will have more legs than the Compact Clause counts.
The next step will be for the State of Idaho to file an answer to the lawsuit. I presume that the Idaho Attorney General’s Office will vigorously contest the matter given Idaho historic backing of Common Core.
The ultimate decision maker will be Idaho Federal District Court Judge Lynn Winmill who is currently burdened with an extraordinary workload. He is Idaho’s only fulltime federal district judge with the retirement of Judge Edward Lodge on July 3rd. This is one more interesting item on his plate.