News Alert

Continuing its national battle against the federal government’s attempted takeover of public education, the Thomas More Law Center, last week, filed a friend of the court brief in the Missouri Court of Appeals supporting a lower court decision that held the State’s participation and membership in the Smarter Balanced Assessment Consortium (“SBAC”) is illegal and SBAC itself is an “unlawful interstate compact … whose existence and operation violate[s] the Compact Clause of the U.S. Constitution.”

The lower court ruling which stopped Missouri from paying over $4 million in membership fees to SBAC, is being appealed by Missouri state officials, including Governor Jay Nixon.

The original lawsuit was filed by D. John Sauer of the St. Louis, Missouri, firm Clark & Sauer, LLC in September 2014 on behalf of concerned Missouri residents and taxpayers.

The Thomas More Law Center (TMLC), a national public interest law firm based in Ann Arbor, Michigan, joined with Mr. Sauer in filing a similar lawsuit challenging the constitutionality of SBAC in North Dakota. A North Dakota District Judge will hear arguments next week on whether he should stop North Dakota from participating in SBAC. 

The TMLC first became involved in the fight to stop Common Core in response to concerns of parents and teachers over the federal government’s control of curriculum nationwide and the standards themselves. As a result, the TMLC previously developed a Test Refusal and Student Privacy Protection Form and a Common Core Resource Page as a general reference and guide for concerned parents and individuals.

Both SBAC and the Partnership for Assessment of Readiness for College and Careers (“PARCC”) were created in response to a federal Department of Education grant program designed to create academic assessments aligned to the Common Core State Standards. The assessments leave local schools little choice but to align their curriculum to the standards and assessment, allowing the federal Department of Education to effectively control public education.

SBAC’s state membership agreements, executed by officials in Missouri, North Dakota, and several other states, have raised concerns that state officials are handing over local educational decisions to SBAC, and by extension the federal government which violates federal statutes prohibiting the federal government—and, in particular, the federal Department of Education—from controlling educational policy, including curriculum decisions and educational-assessment programs in elementary and secondary education.

The new wave of testing ushered in by SBAC and PARCC sparked a national opt-out movement as students, teachers and administrators grapple with the heavy burden created by these assessments. The looming threat from the Department of Education of the loss of federal funding helped drive the controversy between parents and school administrators over parental opt-outs and test refusal. As a result of these parental opt outs, students across the country were  formally disciplines and subjected to “sit-and-stare” policies; refused admittance to the classroom; lost honors, class trips, and athletic participation; and were even suspended.

 Click here to read the Law Center’s friend of the Court Brief

Responding to the concerns of parents and teachers over the Common Core State Standards and the Federal government’s control of curriculum nationwide, the Thomas More Law Center announced today that it has joined in filing a lawsuit against North Dakota’s governor, state superintendent and other state officials.  The lawsuit claims that North Dakota’s participation in the Smarter Balanced Assessment Consortium (“SBAC”) and its implementation of Common Core is unconstitutional and violates several federal laws that prohibit federal control of our public schools and their curriculum.  

The Thomas More Law Center, a national public interest law firm based in Ann Arbor, Michigan, teamed-up with attorney D. John Sauer of the St Louis, MO firm, Clark & Sauer, to file the lawsuit. This lawsuit follows Sauer’s success in stopping Missouri’s membership in SBAC on similar grounds.  Bismarck, ND Attorney, Arnold Fleck, has agreed to assist in the lawsuit as local counsel.

Plaintiffs in the case, who are all North Dakota residents and state taxpayers, include: Steve Cates, Catherine Cartier, Charles Cartier, and Robert Skarphol, who is also an elected member of the North Dakota House of Representatives.   

The Compact Clause of the United States Constitution provides that “[n]o state shall, without the consent of Congress . . . enter into any agreement or compact with another state.” As the Smarter Balanced Consortium is an interstate compact which Congress did not authorize, its existence is a violation of the Constitution. Accordingly, North Dakota’s membership in the Consortium and membership fee payments of over a half million dollars per year, equate to participation in and funding of an illegal entity. 

 In addition to violations of the Compact Clause, SBAC also violates laws enacted by Congress.  For nearly fifty years, federal statutes have prohibited the Federal Government—and, in particular, the federal Department of Education—from controlling educational policy, including curriculum decisions and educational-assessment programs in elementary and secondary education.

Although an increasing number of governors and state legislatures have expressed reservations about Common Core, a majority of states still belong to either SBAC or the Partnership for Assessment of Readiness for College and Careers (“PARCC”), both directed by the Federal Government.

North Dakota’s agreement to participate in the Smarter Balanced Assessment Consortium leaves North Dakota schools little choice but to align their curriculum to meet the imposed national standards and assessments, allowing the federal Department of Education to effectively control public education in North Dakota.

Click here to read the full complaint

Moreover, mounting criticism by parents, teachers, and a growing number of political leaders, has prompted SBAC, PARCC and the federal Department of Education to make it difficult to withdraw from participation in a testing Consortium and statewide testing by threatening increased restrictions and loss of federal funding. The threat of loss of federal funding helped drive a growing controversy between parents and school administrators over parental opt-outs and test refusal.

Across the country, many parents, after often drawn-out battles, still saw their children subjected to “sit-and-stare” policies; suspensions; loss of honors, class trips, and athletic participation; or refused admittance to the classroom as a result of the opt-out. “Sit-and-stare” is a practice of certain school districts forbidding students who opt-out of testing from working on any schoolwork during testing hours and requiring that the students do nothing and possess no materials.  The students must sit in total silence and do nothing while the testing takes place. 

Richard Thompson, President and Chief Counsel of the Thomas More Law Center, commented on the federalized control of public education: “States have surrendered their sovereignty over public education in exchange for federal dollars.  Membership in SBAC requires the adoption of Common Core; and as the standards are Common Core and the exams are Common Core, so the local curriculum must also be Common Core.”

The testing associated with Common Core and created by SBAC, and its companion consortium PARCC, remains one of the most contentious issues between parents and educators. The tests have been heavily criticized for issues ranging from their lack of validity and transparency to appropriateness and data collection, as well as the amount of stress they inflict upon students and teachers.

 The new wave of testing ushered in by SBAC and PARCC has sparked a national opt-out movement as students, teachers and administrators grapple with the heavy burden created by these assessments. As schools and teachers are evaluated based on these exams, the exam is increasingly becoming the only curriculum.

As a result, the Thomas More Law Center previously developed a Test Refusal and Student Privacy Protection Form and a Common Core Resource Page as a general reference and guide for concerned parents and individuals.

In a nutshell, SBAC’s existence, purpose, function, activities, governance, and manner of operation violates the Compact Clause of the U.S. Constitution, and federal statutes guaranteeing state and local control of curriculum, programs of instruction, and related matters in public schools.

March 30, 2015

This morning the United States Supreme Court declined to hear the Thomas More Law Center’s (TMLC) appeal challenging California’s Morgan Hill Unified School District and its school administrators’ decision to ban American Flag shirts from its high school during the Mexican holiday of Cinco de Mayo, thus ending the Thomas More Law Center’s 5 year battle to ensure patriotic students in California had the same constitutional right to express their patriotism, as pro-Mexican students have to express their support for Mexico.    

Several First Amendment scholars weighed in on the issue, all supporting the Thomas More Law Center’s position in the lawsuit, including Professor Eugene Volkh and Professor Erwin Chemerinsky.  The Tinkers, the plaintiffs in the seminal United States Supreme Court case involving free speech in schools, Tinker v. Des Moines Independent Community School District, submitted a friend of the court brief in support of TMLC’s case.  The Tinkers’ First Amendment challenge is responsible for the famous ruling from the Supreme Court that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

In 2010, the Plaintiffs wore Patriotic, American Flag shirts to their high school on Cinco de Mayo.  Because school officials felt a few pro-Mexican students might react violently, school officials punished the students who wore the American Flag shirts by taking them out of their classrooms and telling them that they either needed to turn their t-shirts inside out or go home. 

In February of 2014, a three-judge panel in the Ninth Circuit in California upheld the School Administrators’ ban of the American Flag shirts stating that it was within the School’s right to silence student speech that had the potential to cause a disturbance on the school campus.                     

In response to the unfavorable ruling, the TMLC requested the matter be heard by the full court of the Ninth Circuit.  The court declined.  However, three judges dissented, stating “The freedom of speech guaranteed by our Constitution is in greatest peril when the government may suppress speech simply because it is unpopular.  For that reason, it is a foundational tenet of First Amendment law that the government cannot silence a speaker because of how an audience might react to the speech.”  The three dissenting judges would have ruled that the School’s ban on the patriotic student speech was unconstitutional.

In its request for the United States Supreme Court to hear its case, the Thomas More Law Center explained that “it is far better in our civilized society to teach students about the First Amendment and why we tolerate divergent views than to suppress speech.  Thus, the better and proper response is for school officials to educate the audience rather than silence the speaker.  By restricting [the students’] speech, [the School District] failed to fulfill this fundamental obligation of our government-operated schools and violated the First Amendment in the process.”

Erin Mersino, Senior Trial Counsel at the Thomas More Law Center involved in the appeal, responded to the Supreme Court’s ruling, “Unfortunately, this is a tremendous blow to the free speech of students everywhere.  The Court, by not taking the case, has enabled the voice of bullies to trump the voice of students who simply wish to express passive, peaceful speech.  The denial of this petition makes the work of the Thomas More Law Center all the more vital to the preservation and the future of our First Amendment freedoms.”

A friend of the court brief supporting Taya Kyle, the widow of Chris Kyle, the American Sniper, was filed yesterday afternoon in the U. S. Court of Appeals for the Eighth Circuit by the Thomas More Law Center (TMLC), a national public interest law firm based in Ann Arbor, Michigan.  In the highly controversial case, a Minnesota jury awarded former Minnesota governor Jesse Ventura $1.8 million in damages in July 2014.  The verdict included $500,000 in damages for defamation and over $1.3 million dollars in “unjust enrichment” from the proceeds of Chris Kyle’s book, American Sniper. 

Richard Thompson, TMLC’s President and Chief Counsel, commented on filing the brief supporting Chris Kyle’s widow: “This is TMLC’s way of saying thank you to Taya. The Law Center, and especially our senior trial counsel Erin Mersino and her husband, Paul, worked together on the brief, not only to honor Chris Kyle’s heroic sacrifices in service to our nation, but also to honor Taya for the many hardships she had to endure while her husband was deployed defending our Nation. Too often we forget to thank the families of our deployed troops for the hardships and emotional strain they silently endure while their loved ones are deployed in harm’s way.”

The unusual case spawns from a brief passage in the book American Sniper, authored by Chris Kyle where he discusses a confrontation with Jesse Ventura in a California bar where the two men were attending a fellow Navy SEAL’s wake.  The book describes how a man (Ventura) was being loud and disrespectful at the wake, and made anti-American comments insulting the Navy SEALs, stating “You deserve to lose a few.”  Although Ventura is never mentioned by name in the book, Ventura sued Chris Kyle for defamation.  Chris Kyle was tragically murdered before the case was tried, but instead of dropping the lawsuit, Ventura went after Chris Kyle’s widow, Taya.  The Court replaced Taya Kyle as the Defendant in the case as the representative of Chris Kyle’s estate. 

Although Chris Kyle could not testify in person on his own behalf due to his tragic death, when Ventura’s lawsuit went to a jury trial last year, his lawyers presented several witnesses who supported the truth of Chris Kyle’s words. The case is now on appeal in the U.S. Court of Appeals for the Eight Circuit.

The Thomas More Law Center filed a motion to be allowed to file the friend of the court brief with the Eighth Circuit Court of Appeals on March 11, 2015.  Taya Kyle’s attorneys consented to the filing, while attorneys for Ventura refused to consent. Yesterday afternoon (March 17^th), the Eight Circuit Court granted the motion.  

While TMLC believes that the entire decision of the lower court should be reversed, its brief specifically focuses on why the $1.3 million dollar award for “unjust enrichment” must be reversed.  The brief describes why the lower court erred by allowing unjust enrichment damages in a defamation lawsuit, and that there have been no other cases in the history of our nation that have allowed such damages for a defamation claim.  Further, the brief states that “the damages award for unjust enrichment amount to an impermissible windfall for Ventura that, if permitted to stand, could create precedent that creates a chilling effect on free speech by expanding defamation damages.”

Chris Kyle is a true American hero. TMLC is proud to support Taya Kyle and to honor the memory of Chris Kyle.    He is considered the most lethal sniper in U.S. military history with 160 confirmed kills.  He bravely served four tours in the Middle East, protecting our country as a Navy SEAL.  Chris Kyle left behind his wife, Taya, and their two children.  Chris Kyle’s book American Sniper was adapted into the popular film released this past December and directed by Clint Eastwood.  The film, which has obtained box office success, makes no mention of the confrontation with Ventura.

TMLC’s brief was written by the husband and wife team of Erin Mersino, Senior Trial Counsel at the Thomas More Law Center, and Paul Mersino, an attorney and Shareholder at the law firm of Butzel Long, P.C. in Detroit, Michigan, who worked pro bono on the brief. 

Click here to read a full copy of the brief