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Putting NCLB to the Test

Washington, we have a problem. By now, everyone knows that No Child Left Behind’s (NCLB) testing and reporting requirements are ambitious. Many claim that the law is too ambitious, and that is now being tested in the courts and in state legislatures.

The court test will begin in Connecticut where the state Attorney General, Richard Blumenthal, stated that he will initiate “legal action against the US Department of Education (US DOE) over No Child Left Behind” because the law imposes costs on the state that are not “educationally sound and fiscally responsible.” It is, they argue, an unfunded mandate which the US Department of Education has forcefully imposed without “substantive, thoughtful discussion” with the CT Department of Education. [1]

The legal case is not yet defined but it’s likely to rest on a statutory and/or a Constitutional argument. The statutory argument is found in NCLB section 9527(a) which states:

SEC. 9527. PROHIBITIONS ON FEDERAL GOVERNMENT AND USE OF FEDERAL FUNDS. (a) GENERAL PROHIBITION.—Nothing in this Act shall be construed to authorize an officer or employee of the Federal Government to mandate, direct, or control a State, local educational agency, or school’s curriculum, program of instruction, or allocation of State or local resources, or mandate a State or any subdivision thereof to spend any funds or incur any costs not paid for under this Act.

Section 9527 is the unfunded mandate section and in order to challenge the US DOE on this matter the plaintiff must show that it has been harmed, must evidence that harm, and must have exhausted all administrative avenues to redress that harm.[2] In Connecticut’s case, the Department of Education claims that NCLB is harming its education program, that attempts to address their concerns have been futile and that it has the numbers to prove it. The State Department of Education just released an NCLB cost study that finds a “state-level deficiency over time of more than $18 million.”[3] In short, they are ready to file suit.

A Constitutional argument is also possible. It would be based on the Article I spending clause, which allows the Federal government to attach requirements to its spending/grants. The Supreme Court established this in South Dakota v. Dole (1987) where highway funds were attached to raising the state drinking age to 21. Under Dole, allowable requirements must meet four conditions:

(1) Congress’ use of the spending power must be in pursuit of the “general welfare”;

(2) If Congress conditions the States’ receipt of federal funds, it must do so unambiguously;

(3) Congress can’t place conditions on funding if those conditions are not related to “particular national projects or programs” and;

(4) Congress cannot use its spending power to induce states to perform actions that are unconstitutional.

According to the National Counsel of State Legislatures Task Force on NCLB, the law may be Constitutionally vulnerable because it is too ambiguous (point 2) and because it uses naked coercion and not financial inducement (implied in point 3). [4]

As NCLB faces legal trouble, it faces political trouble. State legislature backlash has begun in Utah (UT). On Tuesday April 19, the UT legislature rejected NCLB by ordering state educators to ignore federal law when it conflicts with state law and to spend as little state money as possible to comply with its programs. Representative Steven R. Mascaro told the New York Times exactly how he and others felt. "I wish they'd take the stinking money and go back to Washington."[5]

The next day it became clear that this was a coordinated rebellion. On Wednesday, The National Education Association expanded the CT suit to nine school districts in Michigan, Texas and Vermont, plus 10 NEA chapters in those three states and Connecticut, Illinois, Indiana, New Hampshire, Ohio, Pennsylvania and Utah. "The principle of the law is simple” said NEA President Reg Weaver, “if you regulate, you have to pay."[6]

So Secretary of Education Margaret Spelling and her NCLB team begins its most significant legal and political challenge to date. This is a good thing. As put by the late Justice William Douglas, "The great and invigorating influences in American life [are those who] challenge an existing institution or way of life, or say and do things that make people think.” The difficulty is that, in this case, it’s not very clear which side is challenging the institution. Both make that claim.

David A DeSchryver
Issue 5.16
comments encouraged: info@thedoylereport.com


[1] “Education Commissioner Responds to NCLB Lawsuit Planned by Attorney General,” NEWS, Connecticut Department of Education, April 5, 2005.

[2] See Memorandum: Legal Questions Regarding the No Child Left Behind Act, National Conference of State Legislatures, prepared by Brustein & Manasevit, July 2003. See also Brustein & Manasevit, http://www.bruman.com/, April 20, 2005.

[3] Cost of Implementing the Federal No Child Left Behind Act in Connecticut, Connecticut State Department of Education, March 2, 2005, http://www.state.ct.us/sde/NCLB_Study_2_28_05.pdf, visited April 20, 2005.

[4] “State Legislators Offer Formula for Improving No Child Left Behind Act: Task Force on No Child Left Behind Final Report,” National Conference of State Legislatures, http://www.ncsl.org/programs/educ/nclb_report.htm, visited April 20, 2005.

[5] Sam Dillon, “Utah Vote Rejects Parts of Education Law,” New York Times, April 20, 2005, http://www.nytimes.com/2005/04/20/national/20child.html, visited April 20, 2005.

[6] “NEA Stands Up for Children and Parents, Files First-Ever National Lawsuit Against Administration for Not Paying for Education Regulations,” National Education Association, Press Center, 4/20/2004, http://www.nea.org/newsreleases/2005/nr050420.html, visited April 20, 2005.

— David A DeSchryver
The Doyle Report


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