Stateline Story

Schools Lose Round in NCLB Challenge

  • November 30, 2005
  • By Kavan Peterson
Efforts to force the federal government to shoulder the entire cost of education programs required by the No Child Left Behind law have suffered a major legal setback. 
It came in the dismissal last week of a Michigan lawsuit alleging that President George W. Bush's signature education program imposed massive illegal unfunded mandates on states and local school districts.
The case was the first of two lawsuits challenging the education law on the grounds that a provision in the law itself forbids the federal government from forcing states to spend their own money to implement the law. A lawsuit filed by Connecticut still is pending.
In the Michigan case, a federal judge said it was clear Congress didn't intend to pay for all the programs required by No Child Left Behind (NCLB). "If Congress meant to prohibit 'unfunded mandates' in the NCLB, it would have phrased (the law) to say so clearly and unambiguously," he wrote.
The National Education Association (NEA), the nation's largest teachers' union, which had argued the case on behalf of school districts in Michigan, Texas and Vermont, said it will appeal the decision.
U.S. Education Secretary Margaret Spellings called the Michigan ruling a "victory for children and parents" and said it "validates our partnership with states to close the achievement gap, hold schools accountable, and to ensure all students are reading and doing math at grade-level by 2014."
It was not clear what impact the ruling might have on the Connecticut lawsuit, which was filed in August.
 Connecticut Attorney General Richard Blumenthal said in a written statement the ruling was "in no way legally binding" on his state's lawsuit and pledged to "continue to pursue our claims vigorously."
Blumenthal said Connecticut's case differs from Michigan's because it is based on specific claims that federal officials illegally imposed unfunded mandates by refusing to grant the state waivers or show flexibility for certain NCLB requirements.
At issue in both lawsuits is Section 9257(a) of the No Child Left Behind Act, which states: "Nothing in this act shall be construed to authorize an officer or employee of the federal government to mandate ... a local education agency ... to spend any funds or incur any costs not paid for under the act."
Reg Weaver, president of the 2.7-million-member NEA, told the ruling was "obviously disappointing," and said he was surprised by the judge's finding of fact.
"It says right there in the law that if you're going to force schools to meet your regulations then you're going to have to compensate them," he said.
Some education experts also were baffled by the judge's interpretation of Section 9257 (a), which does not exist in other major federal education laws, such as Individuals with Disabilities Act and the Higher Education Act.
They said the provision was intended to curb federal control over state education policy.
"What's surprising is that conservatives (in Congress) added this provision because they were really worried that the federal government was overstepping its bounds in what was considered a local issue," said Melissa Junge, a lawyer for the Washington, D.C. law firm Brustein and Manasevit, which represents several state education departments.
The Michigan ruling came on the heels of efforts by federal education officials to mollify state unrest over NCLB mandates by easing key rules in student testing and teacher-quality requirements. The increased flexibility is intended to respond to critics who call NCLB rigid and unworkable.
Taken together, these developments mark a new phase in the battle between states and the federal government over how school improvements will continue to be implemented. The stakes are high for the Bush administration, which is seeking to protect the law from being overhauled when Congress renews it in 2007.
"Spellings is doing her best to quiet the political storm by appearing to be more flexible in carrying out the law. But federal education aid is steadily shrinking and that means it's going to be harder for her to control things politically," said Jack Jennings, executive director of the nonpartisan Center on Education Policy in Washington, which has done extensive studies on NCLB.
Passed in 2002, NCLB is intended to raise student learning standards nationwide and close achievement gaps between different racial and demographic groups. The law requires states to test all children in grades 3 to 8 in reading and math, and penalizes schools that fail to improve test scores. Penalties include potential loss of funding, replacement of school staff and eventually school closure. 
Other states considering challenging NCLB in court now are taking a wait-and-see approach. Maine lawmakers recently passed a bill ordering their state attorney general to sue the federal government if the state determines NCLB is not fully funded. A spokesperson for Maine Attorney General Steven Rowe said "the facts do not support a lawsuit at this time."

Besides Connecticut, Utah has been a leader of the state-led rebellion against NCLB. Last April, state lawmakers passed a law authorizing schools to ignore NCLB mandates that conflict with the state's own testing regimen or that require state dollars to meet them. 

In a maneuver seen as an attempt to avoid a showdown with Utah, Spellings announced this month that up to 10 states will be granted permission to adopt a "growth-based" assessment plan that is similar to Utah's testing system. The new system would allow states to credit schools for the academic growth of individual students even if the schools overall test scores fall short of state standards.

Several states, including Utah, had previously unsuccessfully requested permission to use such a system. Utah Superintendent of Schools Patti Harrington said she hopes Utah will be one of the 10 states selected for the pilot program.

States have until February to apply, but federal officials said that currently there are no states that have met all the conditions required to be eligible for the pilot program.