When cobbling together the landmark No Child Left Behind Act in 2001, Congress quietly tacked on an unusual provision that says the law does not require states or school districts 鈥渢o spend any funds or incur any costs not paid for under this act.鈥�
Little noticed at the time and lifted directly from an earlier version of the law enacted in 1994, the clause was originally pushed by Republican legislators wary of federal intrusion into schools by the Democratic administration of President Bill Clinton.
In a historical twist, the language has now become the main legal weapon brandished by those hoping to prove in the courts that the Republican administration of President Bush has overstepped its authority in carrying out the law he championed.
鈥淭his whole situation is replete with irony,鈥� said William Galston, who was a top domestic-policy aide to President Clinton and is now the interim dean of the University of Maryland鈥檚 school of public policy.
Whatever the political ironies of its origins, the provision has emerged as the mainstay of a high-profile legal challenge to the No Child Left Behind Act spearheaded by the National Education Association, and a similar lawsuit that the state of Connecticut has said it intends to file shortly.
At the heart of both disputes is a fairly straightforward argument: Washington is breaching its promise not to make the No Child Left Behind Act an 鈥渦nfunded mandate.鈥� But whether Washington actually made that promise, and whether it is now being broken, may prove anything but straightforward in a court of law.
See the accompanying item,
Table: Hear Ye, Hear Ye: The No Child Left Behind Act in Court
Legal experts agree that the suit against U.S. Secretary of Education Margaret Spellings by the NEA, 10 of its affiliates, and several school districts faces procedural hurdles that could prevent it from ever being considered on its merits. The suit that Connecticut Attorney General Richard Blumenthal has declared he intends to file, possibly with other states, may face procedural obstacles of its own.
If either or both cases go anywhere, though, the price tag of complying with the far-reaching law is likely to be a critical question. That means an issue that has become a staple of the highly charged political and policy debate over the law may get hashed out in the legal arena as well.
鈥淚f this case does nothing else, it will at least allow us to have an objective forum to decide which statements are correct鈥攐ur statements that say it is underfunded or the Department of Education鈥檚 that says that it鈥檚 adequately funded,鈥� said Robert H. Chanin, a Washington lawyer who is the general counsel of the 2.7 million-member NEA.
Cost Concerns Mount
The legal action against the Bush administration鈥檚 implementation of the No Child Left Behind Act comes as complaints about the costs of complying with the 3-year-old law are mounting.
A revision of the Elementary and Secondary Education Act of 1965, the law requires states to set up school accountability systems tied to standards-based tests and imposes new teacher-quality standards, among other mandates. It also sets up progressive consequences for schools and districts that fail to make adequate yearly progress, or AYP, toward a goal of having all students achieve academic proficiency in core subjects by the 2013-14 school year.
Most money under the law comes from the federal Title I program for disadvantaged children. Although Title I funding has climbed from $10.3 billion in fiscal 2002 to $12.7 billion this fiscal year, critics contend that the increase does not cover the costs of meeting the law鈥檚 mandates, and that states and districts, therefore, are having to spend their own money to do so.
At the crux of both the NEA suit and Connecticut鈥檚 expected challenge is the claim that such state and local spending runs afoul of the law鈥檚 鈥渦nfunded mandate鈥� clause.
According to the Congressional Research Service, the clause was put into three major education bills enacted in 1994. They were the Goals 2000: Educate America Act, the School-to-Work Opportunities Act, and the Improving America鈥檚 Schools Act, a five-year reauthorization of the ESEA from which the language was carried over into the No Child Left Behind law.
The provision states: 鈥淣othing 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鈥檚 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.鈥�
鈥淐ongress said this is not an unfunded mandate,鈥� Mr. Chanin said, 鈥渂ut that word doesn鈥檛 seem to have gotten through to the Department of Education.鈥�
Unfunded Mandate?
Connecticut Attorney General Blumenthal, a Democrat, made a similar argument in announcing his plan to sue last month. He said the state would need to spend $8 million by 2008 to comply with the testing requirements of the law. (鈥淐onnecticut Pledges First State Legal Challenge to NCLB Law,鈥� April 13, 2005.)
That spending, he contended, represents 鈥渁n illegal, unconscionable unfunded mandate.鈥�
Connecticut and the NEA concede that under court rulings interpreting the spending clause in Article I, Section 8, of the U.S. Constitution, Congress is allowed to attach certain conditions to federal funding.
Noting that the U.S. Supreme Court has held that such conditions must be clear to recipients upfront, however, they argue that by effectively requiring additional state and local spending, the administration is going back on one of the conditions under which states took the money鈥攖he unfunded-mandate clause of the NCLB law itself.
鈥淭he states and districts have a right to rely on the conditions that Congress set forth for participation in the program,鈥� Mr. Chanin said.
A spokeswoman for the Education Department said last week that the agency would not discuss legal details of the NEA case or Connecticut鈥檚 expected challenge. But both the department and its allies have often stressed that states that don鈥檛 like the requirements of the law are free to avoid them by simply turning down the funding.
鈥淣o state is compelled to take this money,鈥� said Brian W. Jones, who stepped down as the department鈥檚 general counsel in January. 鈥淲hat the union and the state of Connecticut are basically doing is putting their hand out to the federal taxpayer and saying, 鈥楶ut up and butt out.鈥� 鈥�
Neither the department nor its supporters concedes that the government is requiring states and districts to spend money above what they are getting from Washington. Among other evidence, they point to studies by the Government Accountability Office, Congress鈥檚 investigative arm, that found NCLB funding to be keeping pace with the cost of compliance.
But even if extra spending were needed, they say, the larger point is that states can walk away.
As David M. Schnittger, the spokesman for Republicans on the House Education and Workforce Committee, put it: 鈥淭he clause is trumped by the basic, more obvious fact that no state is required to accept the funding that triggers the requirements in the first place.鈥�
States Weigh Action
Whether a judge ever gets to ponder the merits of such arguments remains to be seen.
Some legal experts say the NEA suit, which was filed in U.S. District Court in Detroit, may not get past square one because of procedural questions, including whether the national teachers鈥� union and several state affiliates have the legal standing to bring such a case.
Joining the union鈥檚 suit are the districts of Pontiac, Mich.; Laredo, Texas; and a cluster of tiny rural districts outside Rutland, Vt. (鈥淯nion, States Wage Frontal Attack on NCLB,鈥� April 27, 2005.)
Some see those districts鈥� legal footing as more solid than the union鈥檚, but perhaps not as strong as that of individual states, which are the direct recipients of federal funds under the law and the front-line targets of most of its requirements.
After first announcing its intention to challenge the No Child Left Behind Act in court in 2003, the NEA unsuccessfully sought states willing to join such a case.
One was Connecticut, which decided to move ahead without the union. Connecticut鈥檚 suit is expected to focus heavily on the costs of expanding the state鈥檚 testing program, which now assesses students every other year, to meet the federal law鈥檚 mandate to test annually in grades 3-8 and once in high school. As of late last week, Mr. Blumenthal was still trying to recruit other states to join his suit, which he had not yet filed.
Another state that has talked with the NEA is Maine, which has been gathering data about the costs of complying with the law in anticipation of a possible lawsuit. The Democratic-controlled legislature is considering a bill to authorize such action. And last week, Gov. John Baldacci, a Democrat, said he wanted his state鈥檚 attorney general to consider legal action over the federal law.
Meanwhile, Wisconsin Attorney General Peggy A. Lautenschlager said last week that her office was 鈥渃ommunicating with Connecticut with regard to its complaint.鈥� A year ago, she wrote an advisory legal opinion concluding that her state was being illegally required to spend much more to comply with the NCLB law than it was getting from Washington.
Unlike in Connecticut, though, Ms.Lautenschlager said she would need the governor, the legislature, or the state superintendent of public instruction to ask her to take legal action, and 鈥渢o date, we have not had that request.鈥�
