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Published in Print: May 26, 2004, as Wis. Review Invites ‘No Child’ Lawsuit

Wis. Review Invites ‘No Child’ Lawsuit

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Wisconsin’s attorney general has added new steam to discussions of how the federal No Child Left Behind Act might be derailed by states unhappily tied to the law’s dictates.

Peggy A. Lautenschlager, the top lawyer for Wisconsin, wrote this month that, in her view, state and local education officials could make a strong case against the law in court, and all but invited them to explore the possibility of doing so.

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Read the accompanying story, "Top State Lawyer's Analysis."

Her 11-page legal analysis is the closest a senior state official has come to challenging the law in court since the National Education Association said it hoped to find a state willing to join such a lawsuit. Union leaders hailed her review, though other observers and Wisconsin officials said it was unlikely to trigger a lawsuit.

Attorney General Lautenschlager argued in the review that state and local education officials "were in a position to develop the detailed information" showing that federal aid is not keeping pace with efforts to meet the law’s requirements in the state, thus violating a provision of the law that prohibits unfunded mandates.

Such arguments did not move Wisconsin’s state schools chief, Elizabeth Burmaster, who said last week that she would rather continue discussions over funding with federal officials than file a lawsuit.

Under the far-reaching education act signed by President Bush in 2002, Wisconsin, along with many other states, must broaden its testing program, help schools that are not making adequate academic progress, and by the 2013- 14 school year ensure that all public school students are proficient in reading and mathematics.

The law came with an authorization of additional federal money. Critics contend that the appropriated funding has not been enough, while defenders of the law say the money has been adequate.

A spokeswoman for the U.S. Department of Education wrote in an e-mail last week that President Bush has made "historic funding investments" to help ensure the law’s goals are met. The spokeswoman, Susan Aspey, also wrote that the state attorney general’s opinion "appears to be politically driven and based on flawed reasoning."

Growing Costs

In her May 12 letter to fellow Democrat Sen. Fred A. Risser, the attorney general wrote that she does not "presently perceive insurmountable hurdles" to a court ruling in favor of those protesting the costs and the reach of the federal law.

The letter responded to a request from Mr. Risser for a "constitutional analysis" of Wisconsin’s spending obligations under the federal law.

"I’m a state legislator, my wife happens to be a teacher, we’ve heard lots of stories about this [No Child Left Behind] program, and I thought I’d check it out," Mr. Risser said last week.

He also said that the state’s largest teachers’ union, the Wisconsin Education Association Council, an NEA affiliate, "had sort of suggested it would be nice to have an opinion."

In her letter, the attorney general said the costs of the federal law were likely to "grow dramatically over the next few years." She also examined the legal arguments she said the federal government would be likely to use in court—specifically, that there is not enough evidence that harm is being inflicted on school districts, and that if there is harm, administrative avenues are open for redress.

"The largest impact [of the law] is likely to fall on the shoulders of Wisconsin’s largest and smallest school districts, or those most affected by the state’s revenue controls," which already limit growth in education spending, Ms. Lautenschlager predicted.

NEA Lawsuit Stalled

Leaders of the 2.7-million-member NEA announced last July that the union intended to fight the law in court on behalf of states, school districts, and teachers, but the plan stalled when no state agreed to sign on as a plaintiff. ("NEA Seeks Allies to Bring Lawsuit on ESEA Funding," Aug. 6, 2003.)

The Wisconsin attorney general’s letter in effect examines the NEA’s announced legal strategy, which turns on the claim of illegal unfunded mandates in the measure, a revision of the Elementary and Secondary Education Act.

Reg Weaver, the NEA’s president, said last week that a suit against the No Child Left Behind law remained "a viable option" that his organization was pursuing "with interested states."

He added that fear of losing federal education aid has kept state leaders away from pursuing legal action.

And while the Wisconsin union hailed the state attorney general’s opinion as "a national precedent" and urged school districts or the state government to go to court, key officials appeared unwilling to do so.

Ms. Burmaster, the elected schools superintendent, said the state education department did not intend to work toward a lawsuit.

"We believe it is too early in the implementation process to have hard facts, especially from local school districts, that would support legal action," she said. "A better route is … really working with Congress and President Bush about the need to fund the law."

Many local school officials in the state are still figuring out the demands of the law, according to Ken Cole, the executive director of the Wisconsin Association of School Boards. "The attorney general’s opinion was comforting, but it’s early," he said. "We’re all unsure of how much relief we need."

The office of Gov. James Doyle, a Democrat with close ties to WEAC, did not return a phone call seeking comment.

Sen. Risser said he was not prepared to go to court, and he did not know of anyone working on a lawsuit in the state as of late last week. "Let it percolate a little and see what happens," he said. "It’s created more interest than I anticipated."

Observers outside Wisconsin cautioned that even if there is solid ground for claiming the law prohibits unfunded mandates, at least equally important are the downsides of suing.

The first state to step out in protest "risks isolating itself and irritating the Department of Education and, moreover, of offending people in Congress who worked very hard to get the legislation passed," said Lisa E. Soronen, a lawyer with the National School Boards Association in Alexandria, Va.

David L. Shreve, an education analyst and lobbyist for the Denver-based National Conference of State Legislatures who has studied legal options available to states in responding to the federal law, predicted that more signs of resistance to the statute would surface as states move from planning and testing to working on remedies for underperformance.

"What I fear," he said, "is the courts are the only way the issue of funding could be settled."

Vol. 23, Issue 38, Pages 1,20

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