Published Online: August 6, 2003
Published in Print: August 6, 2003, as State Journal


State Journal

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Legal Threats

There seem to be two reactions to a recent letter in which the National Conference of State Legislatures warns that a wave of lawsuits over the 2001 federal education law may be in the offing.

Some see political posturing. Others see pragmatic concern. Regardless of how the letter is read, though, the legal questions it raises over the "No Child Left Behind Act" of 2001 are not likely to disappear.

"If you like No Child Left Behind, you don't like the letter," said David Shreve, the NCSL's education expert and lobbyist in Washington. "If you don't like No Child Left Behind, you like the letter."

Mr. Shreve said the point of the July 7 letter to state lawmakers and staff members was to point out where the federal government and states may be exposed to legal arguments that they're not adequately funding schools to meet the law's requirements.

The letter explains that the NCSL responded to queries from lawmakers by commissioning a Washington law firm to study legal questions around the law.

Specifically, the firm studied a provision of the No Child Left Behind law that prohibits it from imposing unfunded mandates on states—a legal argument some cash-strapped states have expressed interest in using. The National Education Association is hoping to recruit some states to challenge aspects of the law in court. ("NEA Seeks Allies to Bring Lawsuit On ESEA Funding," this issue.) An NCSL spokesman said that his group was not part of the NEA's efforts.

In requiring "that every child receives an adequate education by reaching a state standard of proficiency in 12 years," the letter said, the law has the potential to "initiate state-by-state adequacy litigation nationwide."

The leader of another national group that represents state education officials isn't buying it.

Lisa Graham Keegan, the chief executive officer of the Washington-based Education Leaders Council and a former Arizona state schools chief, said the letter is a distraction. "I think it's a sad statement about how you weasel out of what should be a moral response," she said last week. She argued that federal funding is adequate to meet the law's demands, and urged the NCSL to put more effort into promoting the goals of the law rather than fanning the flames of possible litigation.

"Maybe I'm being overly negative, but I'm trying to remember the memo about what a great idea this is and how we have a moral imperative to make it a reality," she added. "That memo never got sent."

—Robert C. Johnston

Vol. 22, Issue 43, Page 24

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