NCLB and State Education Finance Remedies
Scott Bauries on Monday, June 1, 2009 at 3:32PM Several states have complained about the No Child Left Behind Act (NCLB) and its tendency to cause states to incur expenses they would not have incurred absent the law. This tendency is troubling because NCLB appears to explicitly forbid the creation of any unfunded mandates in the law (and two states have sought to remind the Department of Education of this through lawsuits). However, it may be troubling for another, unforeseen reason.
Multiple states have had their state education finance systems held unconsitutional due in part to their failure to provide adequate or substantially equal funding. The states typically defend these suits first on procedural grounds (e.g., standing, separation of powers), and then on the basis that either (1) local control prevents the state from equalizing expenditures; (2) the constitutional standard in the education clause is met; or (3) the state simply is unable to increase or equalize funding due to lack of available revenues.
The first two of these defenses are well-worn, and I do not seek to comment on them here, but the third defense appears to collide directly with the "unfunded mandates" argument under NCLB. That is, if NCLB, a federal law under which states can choose to be bound simply by accepting federal funds, can cause state expenditures to increase or be diverted, such that revenue that could have been used to equalize spending (or increase total spending to an adequate level) is instead committed to funding the unfunded mandate, is not NCLB at least one proximate cause of the alleged funding inequality or inadequacy?
If this link were to be proved in court (and I'm sure it would not be that difficult if NCLB does indeed create unfunded mandates), then it appears that the court would be presented with a ready remedy. Enjoin the state education board from complying with the unfunded portions of NCLB until such time as state general education funding is rendered equal or adequate, as the case may be. I wonder what the DOE would do about that . . .
Reader Comments (2)
Can someone (a state in this instance) "choose" to incur proximate cause liability on someone else? It doesn't really make sense to me that one could. Doesn't the choice become the new, intervening proximate cause of the injury?
Great question! And complicated for at least two reasons. First, I think part of my post may have been confusing. In these cases, the state is always the liable party, so the state's choice only confers liability on the state itself. not any third party. It is not at all clear that a state must, in accepting NCLB funds, accept conditions that create unfunded mandates. If the two states currently litigating the issue are right (and the text clearly supports their arguments), then no conditions creating unfunded mandates are compulsory, so in accepting NCLB funds, states have not "caused" the diverting of funding unless they also choose to comply with the unfunded mandates.
If they do so choose, then of course the state has "caused" its education finance system to be unconsitutional by choosing to fulfill the unfunded mandate (if simple lack of funding is the problem). Like any defendant on the wrong side of a liability determination, then, it has acted to cause such liability by choosing to fulfill an unfunded federal mandate, rather than meet more immediate state constitutional funding requirements.
What's really interesting from a federalism perspective, though, is the potential for a remedy. States generally feel that they do not legally have to comply with unfunded mandates in federal spending power legislation, but they also generally feel that their hands are tied, and while they have no legal need to comply, there is a practical one--to prevent the DOE, based on a overzealous interpretation of the law, from clawing back ALL funds from the state. If the link between this practical compulsion to comply with unfunded mandates and a lack of adequate funding in other (constitutionally compelled) areas could be shown, then a state court could conceivably enjoin the state education board from complying with the unfunded federal mandates.
This makes me wonder whether the DOE would attempt to punish the state for complying with a court order requiring it not to comply with a federal mandate conditioned on funding (in this case, mostly Title I funding).