FULTON - The state appeals court must decide if there's anything left to decide, in the case of making payments to support the controversial Common Core education standards.
That was one of the messages to a three-judge appeals court panel during oral arguments Thursday morning at Fulton's Westminster College.
The state Elementary and Secondary Education department (DESE) appealed last February's ruling by Cole County Circuit Judge Dan Green that payments to the Smarter Balanced Assessment Consortium, or SBAC, violate the U.S. Constitution.
In a case filed by three Missouri taxpayers, including one-time governor candidate Fred Sauer, Green blocked the state's payments to the California-based SBAC because the consortium is "an unlawful interstate compact to which the U.S. Congress has never consented."
After Green's ruling, lawmakers passed - and Gov. Jay Nixon signed - a state budget for the 2015-16 business year that eliminated the authority for making those payments.
So, lawyer John Sauer argued in written briefs and in Thursday's oral arguments, the case now is moot because Missouri is out of the consortium - so DESE's appeal should be dismissed.
But state Solicitor General James Layton told the court, "The state still has an interest in these issues. We still have to have (testing) assessments, under both state and federal law.
"There still are economies of scale in doing assessments for a broader population than just our students - and it will still be to our advantage to work with other states to develop assessments."
Thursday's hearing was part of the Western District appeals court's regular schedule of holding some arguments on college campuses around the district, so people who don't usually see appeals courts at work can watch.
Lawyers for both sides are given a chance to explain to the audience what the background and legal issues are before they present their legal arguments to the court.
Layton told about 30 students at Westminster's Hunter Activities Center that Missouri's involvement in the now-controversial Common Core debate actually began when lawmakers passed the Outstanding Schools Act in 1993, "which brought us into, kind of, the age of school accountability."
That law required the development of education standards for each grade level and for the creation of tests to show how students were learning.
Later, he noted, "The National Governors Association put together an effort to develop academic standards of some sort that would be common across various states - so, if you tested a third-grader in Arkansas, a third-grader in Iowa and a third-grader in Missouri, you would be testing on the same things and you could compare across state lines."
Though not developed or required by the federal government, he said, the U.S. Education department said those Common Core standards met its criteria for states and schools to get federal education dollars.
Missouri chose to join one of two national agreements among the states - the Smarter Balance consortium.
Layton said the only commitment Missouri made to the consortium was being "subject to the direction and oversight of the board of governors, with respect to products and services to be provided by Smarter Balance to the members."
And that's the same commitment Missouri must make if it buys any standardized test from another entity, Layton argued, like the Iowa Test of Basic Skills that most Missouri districts will end up using because lawmakers said they can't use the Smarter Balance test.
"Missouri, of course, engages in these kinds of agreements all the time," Layton told the judges, "and perhaps the most interesting parallel these days is that we have agreements with other states to buy pharmaceuticals. ...
"But we don't have Congressional approval for states to get together and do that - because Congressional approval isn't required," and the courts since the 1890s "have never said that this kind of an instance requires Congressional approval."
John Sauer told the students their original lawsuit raised four legal issues, including a complaint the federal government was illegally getting involved in state education decisions, and the 1993 Outstanding Schools Act limits Missouri to no more than 75 standards, when the Common Core has more than 100.
Sauer urged the appeals court to declare the case moot and not consider the other arguments.
He said several U.S. Supreme Court cases, and others, support that position.
"In every case that has considered this issue, when there's a challenge to a government action and when the government loses and (then) repeals the action that was challenged," Sauer told the appeals court judges, "the court has decided that vacating is the proper action."
He said DESE doesn't have an independent right to pursue its appeal after the Legislature ended the funding for the payments to the consortium.
Sauer agreed if Green's injunction isn't vacated because the case is moot, it will remain in effect - and the state couldn't resume payments to the consortium if the Legislature voted to resume those payments.
The appeals court gave no indication how long it will take to decide the case.