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.
[¶ 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
[¶ 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 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.
[¶ 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 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.
[¶ 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).
[¶ 11.] The Compact Clause of the United States Constitution, Article I, Section 10, Clause 3, provides:
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 S.Ct. 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.").
[¶ 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:
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 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
[¶ 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
[¶ 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[
[¶ 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
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.
[¶ 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:
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
[¶ 23.] Plaintiffs' reliance on assessment and test being synonyms is misplaced. They conflate test with questions. SDCL 13-3-55 does not require that 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.
[¶ 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 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.