The Edjurist - Information on School and Educational Law

Well, tomorrow is the birthday of NCLB. It is officially 6 years old and lots of folks have a something to say about it, as BoardBuzz notes (also, Alexander Russo, Cato). President Bush, for his part, went to a Chicago elementary school to celebrate and there he issued a fact sheet touting NLCB's achievements and reiterating his proposals for reauthorization (audio of an NPR summary of potential changes). Sen. Kennedy also had something to say.

Well, almost as if it was fate, today there is word that the Pontiac v. Spellings lawsuit is back on after the Sixth Circuit court of appeals reversed a district court ruling finding for the Department of Education. The case concerns the "unfunded mandate" provision of NCLB which states, “[n]othing in this Act shall be construed to . . . mandate a State or any subdivision thereof to spend any funds or incur any costs not paid for under this Act,” 20 U.S.C. § 7907(a). The eight school districts and National and State Educational Associations contend that this provision does not require compliance with NCLB if doing so would force the school to spend additional local or state dollars. Alternatively, the U.S. Department of Education argues that the Spending Clause of the U.S. Constitution requires schools to follow all of the law, regardless of complete federal dollars. It is no secret that Congress has not allocated all the dollars that were authorized for the law. Over the course of five years, the difference between the actual expenditure and the authorization has totaled over 30 billion dollars. Schools have had to cover the difference between what the law costs to implement and what the Federal government appropriates with state and local dollars. This difference is the central issue in this case and the schools sought a declaratory judgment stating that they need not use state and local dollars for this supplemental purpose and that other federal funding cannot be withheld for failures to implement where Federal dollars are insufficient. The District Court denied the request.

On appeal in the Sixth Circuit, the court used the recent special education case, Arlington v. Murphy, to illustrate that the central question was whether a reasonable state official would have believed that their obligation under the Act included following the all the provisions, even when the money was insufficient. The court said:

a state official would not clearly understand that obligation to exist. To the contrary, based on this text, a state official could plausibly contend that she understood exactly the opposite—that her State need not comply with NCLB requirements for which federal funding falls short.

The District Court concluded that this provision only meant to stop rogue federal officials from enacting new provisions, but the Appeals Court disagreed. After reviewing the legislative history of the law and interpreting the plain meaning of the statute, the court concluded:

a state official deciding to participate in NCLB could reasonably read § 7907(a) to mean that her State need not comply with requirements that are “not paid for under the Act” through federal funds. Thus, Congress has not “spoke[n] so clearly that we can fairly say that the State[s] could make an informed choice” to participate in the Act with the knowledge that they would have to comply with the Act’s requirements regardless of federal funding. Of course, if that ultimately is what Congress intended, the ball is properly left in its court to make that clear.

While this is only the opinion of the Sixth Circuit and clearly does not put an end to NCLB (remember if there are federal dollars to cover the laws provisions, they must be implemented), this is a major victory for states and schools that are struggling to pay for the implementation of NCLB out of their own pockets.

[Crossposted At the Schoolhouse Gate]