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 . . .