North Dakota Attorney Contradicts Himself In Argument Against Common Core Lawsuit


Back in June a group of opponents of the controversial Common Core standards, a group including state Rep. Bob Skarphol (R-Tioga), filed a lawsuit arguing that the State of North Dakota entered into an unconstitutional interstate compact when it embraced the policy. Interstate compacts are allowed by the states, but must be ratified by Congress, which this one wasn’t.

A similar lawsuit in Missouri has met with some success, leading to that state ending its relationship with the Smarter Balanced Consortium, though that case is currently on appeal.

Anyway, North Dakota’s case got a hearing in court yesterday and the attorney for the state offered what seemed to this observer to be a completely contradictory argument against the notion that the state’s membership in the Smarter Balanced Consortium (basically the interstate compact in question) is not unconstitutional.

See if you can spot the problem:

Solicitor General Douglas Bahr countered that the state has retained its sovereignty and can withdraw from the consortium at any time. He warned that an injunction would force the state to secure new testing contracts and would have a domino effect for years to come even if the state wins the case.

“The harm is there. We can’t take it back,” he said.

So the consortium is not an illegal interstate compact because the state has retained its sovereignty and can withdraw from it “at any time.” But the state also can’t abide withdrawal prompted by an injunction because there would be “harm.”

Which sort of makes it sound like North Dakota really¬†can’t just withdraw from the consortium at any time. Which, in turns, makes it sound like maybe Bahr is all wet when he says the state has retained its sovereignty.

I don’t really have a dog in this hunt. A state leader told me earlier this year that Americans fall into two groups when it comes to Common Core: Those that hate it, and those that don’t care.

I find myself in the latter camp, but in the early running it does seem as though this lawsuit isn’t going to end well for Superintendent Kirsten Baesler, the chief proponent of Common Core in North Dakota, who has already been plagued by a shoddy roll out of Common Core testing at the end of the last school year.

UPDATE: Here’s a really good point from the comments. Common Core supporters, up to and including Superintendent Kirsten Baesler, have insisted over and over again that Common Core is not curriculum. But before the court yesterday Bahr argued that an injunction would be too costly for the state…because of all the curriculum changes it would require.