Widespread sniping at the Bush administration鈥檚 centerpiece education law escalated into a frontal attack last week as the nation鈥檚 largest teachers鈥� union and several school districts sued federal officials over the measure, just a day after the Utah legislature approved a bill challenging the reach of the law.
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The National Education Association鈥檚 suit follows an announcement by the Connecticut attorney general this month that his state plans litigation similar to the union鈥檚.
Observers are divided on how formidable the legal and legislative assaults might prove. But they are largely united on the political symbolism of so much happening at once: Resistance to the law is growing.
鈥淚t seems like there鈥檚 this mounting movement against the law,鈥� said Perry Zirkel, a professor of education and law at Lehigh University in Bethlehem, Pa. 鈥淭wo years ago, I thought [the Bush administration] was getting away with implementation of the law, because lots of states were backing down, but now with what鈥檚 happening, I鈥檓 not sure.鈥�
When it arrived last week, the NEA鈥檚 long-awaited legal challenge to the No Child Left Behind Act garnered plenty of attention.
Suing along with the 2.7 million-member labor behemoth and 10 of its affiliates are school districts in Pontiac, Mich.; Laredo, Texas; and south-central Vermont. They have asked the U.S. District Court in Detroit to free schools from having to comply with any parts of the No Child Left Behind law on their own tab.
The suit charges that the sweeping federal education law鈥攑assed at the end of 2001 and signed by President Bush in January 2002鈥攊s being implemented illegally because billions of dollars worth of federal underfunding has forced states to use their own money to carry out its mandates.
According to the NEA, that financial burden is contrary to a provision in the law itself that states: 鈥淣othing in this act shall be construed to 鈥� mandate a state or any other subdivision thereof to spend any funds or incur any costs not paid for under this act.鈥�
The idea behind the challenge is simple, said NEA President Reg Weaver: 鈥淚f you regulate, you must pay.鈥�
Debating the Numbers
Federal education officials have repeatedly countered arguments about inadequate funding by pointing to what they say are 鈥渉istoric鈥� levels of money budgeted to ensure that the law鈥檚 goals are met. And in theory, states could forgo federal education aid if they wished to be free of the mandates.
Education Department spokeswoman Susan Aspey called the suit 鈥渞egrettable鈥� in a statement last week and urged the NEA to 鈥渏oin us in helping children who need our help the most in classrooms, instead of spending its time and members鈥� money in courtrooms.鈥�
Observers had predicted that more signs of resistance to the federal law would surface as states and districts moved from the costs of planning, data collecting, and testing to those of trying to meet the student-performance levels required. The law, a reauthorization of the 40-year-old Elementary and Secondary Education Act, calls for increased testing, particularly in grades 3-8, with the aim of getting all students to a 鈥減roficient鈥� level by 2014; higher teacher qualifications; and increasingly severe consequences for schools that fail to meet the academic standards.
According to the NEA suit, the gap between the spending authorized by the law and the actual amount that goes to the states has been growing. Further, a number of calculations by the states show that even the authorized amount would fall billions short of providing the tutoring and greater school time that low-achieving students would minimally need to reach the bar.
President Bush鈥檚 proposed $13.34 billion in spending next year on the law鈥檚 Title I鈥攖he biggest federal program in precollegiate education鈥攊s more than $9 billion less than the authorized amount, the court papers say.
In addition, the suit argues, to meet federal mandates, states and districts have had to siphon money away from programs that education officials say would help students more in the long run.
The national union is footing the bill for the legal challenge, though officials declined to estimate the cost at a press conference last week.
The NEA鈥檚 general counsel, Robert H. Chanin, said the plaintiff districts were chosen because they represent a cross section of those the law is especially harming. The 10,900-student Pontiac district mainly enrolls African-American students, while Laredo鈥檚 23,500 students are mostly of Hispanic descent. The six small school systems within Vermont鈥檚 umbrella Rutland Northeast Supervisory Union are rural.
Even with the national union鈥檚 deep pockets, the suit will not be easy to win, experts agreed.
鈥淣EA and the school districts have a case to be made, but I don鈥檛 know that they鈥檒l prevail in court,鈥� said Jack Jennings. The president of the Center on Education Policy, a policy and research group in Washington, Mr. Jennings was a longtime senior aide to House Democrats on education. 鈥淭here could be endless arguments,鈥� he said, 鈥渁bout what is really required by the legislation.鈥�
Bush administration officials have often pointed out, for example, that it鈥檚 common for Congress to appropriate less than the full amount of funding that is authorized under a particular law.
Political Purposes
Just inducing a court to get to the merits of the arguments could be difficult, several lawyers concluded.
鈥淭he federal courts have not shown a great deal of willingness to get into NCLB issues,鈥� said John W. Borkowski, a lawyer with the Washington-based firm of Hogan & Hartson. Nonetheless, he said, many districts will be watching the suit closely with an eye to supporting it or filing their own.
Mr. Zirkel, the Lehigh University professor and a lawyer, agreed that even getting the court to take the case might not be easy.
鈥淚鈥檓 not betting my money on the NEA and the school districts,鈥� considering the outcomes of the few suits on the law that have already had their day in court, he said. 鈥淚f the court can get out of this case, it will get out of it because this is a huge political hot potato not very amenable to court resolution.鈥�
Still, observers agreed that the suit could serve the political purposes of those who dislike the law or believe districts should get more money.
鈥淵ou get public attention mobilized, and the Education Department may decide it makes political sense to strengthen the funding of the act,鈥� said Larry Sabato, the director of the University of Virginia鈥檚 Center for Politics.
But, he added, the union could lose as well as gain in challenging the law. 鈥淭hey don鈥檛 want to give Americans the impression they are always saying no to reform,鈥� he said.
Indeed, Ross Wiener, the policy director for the Education Trust, a Washington research and advocacy organization that promotes academic achievement for disadvantaged students, predicted that the suit would 鈥渁lmost certainly鈥� be dismissed before going to trial. He said that the NEA was making itself look bad with the effort.
鈥淭his lawsuit is a cynical publicity stunt for the NEA,鈥� Mr. Wiener wrote in an e-mail. The fact that the union for months unsuccessfully sought a state to join the suit, he added, 鈥渟peaks volumes about how extreme and marginalized the leadership of the NEA has come to be seen.鈥�
But the superintendent of the Laredo school district, one of those suing along with the NEA, views the union as a champion of students who, she believes, are being harmed by the law.
鈥淲e鈥檙e already having to live by an accountability system that is not sound, and on top of that, we don鈥檛 have enough money to live up to the mandate,鈥� said Sylvia Bruni. 鈥淚鈥檓 hoping that if enough attention is paid to [the effects of the law], it will lose its partisan aspect, and we can get fair testing and fair funding.鈥�
State Resistance
Meanwhile, actions by three states have made good on threats to distance themselves from at least some aspects of the law.
Most notably, the Utah legislature voted overwhelmingly last week to allow its state accountability laws to supersede the federal mandates. The bill, which the governor has said he will sign, also would direct Utah education officials to ignore any provision of the law that was not paid for by federal funds.
The move means the state could face losing nearly three-quarters of its federal education aid. (鈥淯tah Passes Bill to Trump 鈥楴o Child鈥� Law,鈥� this issue.)
Other states and analysts were closely watching the move by the legislature, particularly because it pits some of President Bush鈥檚 strongest supporters against his administration and its hallmark education plan, which they view as federal interference.
Utah鈥檚 action also forged, at least in theory, unlikely alliances between the Republican-dominated state and Democrats and liberal groups that want more education funding.
While the U.S. Department of Education and most conservative-leaning groups focused their attention on the NEA鈥檚 lawsuit, the Democratic National Committee waved Utah鈥檚 action as another example of a backlash against the level of No Child Left Behind funding.
On another state front, Texas鈥� top education official, in a letter to the federal Education Department, defended her decision to grant a slew of appeals that ensured large numbers of schools and districts made adequately yearly progress, or AYP, in the 2003-04 school year.
Texas Commissioner of Education Shirley Neeley in February said she accepted the appeals of 431 districts and 1,312 schools for failing to make AYP because they followed state law on the testing of students with disabilities. (鈥淭exas Stands Behind Own Testing Rule,鈥� March 9, 2005.)
In her April 19 letter to federal officials, Ms. Neeley wrote that she made that decision because the federal department released rules governing the testing of such students just one month before Texas was scheduled to give its tests. The schools tested students under existing state law, which allows for greater leniency in giving alternative tests to students with disabilities and still count students as proficient for accountability purposes.
鈥淚t was not remotely possible to develop statewide alternate achievement standards through a documented and validated process in time for these assessments,鈥� Ms. Neeley wrote in response to a federal monitoring report on Texas鈥� compliance with the law. 鈥淣or was it possible to undo instantly the assessment arrangements that had been made鈥� for students with disabilities.
As a consequence of that decision, U.S. Secretary of Education Margaret Spellings has threatened to withhold up to $12 million of the state鈥檚 grants under the No Child Left Behind Act.
鈥楢 Positive Step鈥�
And in Connecticut, Attorney General Richard Blumenthal announced plans this month to file a lawsuit against the federal Education Department, maintaining that it had created 鈥渦nfunded mandates imposed unlawfully on Connecticut and other states.鈥�
The lawsuit, to be filed in federal court, would argue that the NCLB law illegally forces states to use their own money to carry out testing requirements. Last week, the attorney general鈥檚 office was unable to comment on when the suit might be filed.
Mr. Blumenthal applauded the NEA鈥檚 lawsuit, saying it would add weight to Connecticut鈥檚 endeavor.
鈥淭his action is a powerful, positive step,鈥� he said in a statement, 鈥渋n stopping illegal federal unfunded mandates under No Child Left Behind.鈥�
