Published Online: April 26, 2005
Published in Print: April 27, 2005, as Union, States Wage Frontal Attack on NCLB

Union, States Wage Frontal Attack on NCLB

Pressure Rises: While Utah passes bill, NEA files suit, and Connecticut prepares to do same.

Widespread sniping at the Bush administration’s centerpiece education law escalated into a frontal attack last week as the nation’s largest teachers’ union and several school districts sued federal officials over the measure, just a day after the Utah legislature approved a bill challenging the reach of the law.

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The National Education Association’s suit follows an announcement by the Connecticut attorney general this month that his state plans litigation similar to the union’s.

Observers are divided on how formidable the legal and legislative assaults might prove. But they are largely united on the political symbolism of so much happening at once: Resistance to the law is growing.

“It seems like there’s this mounting movement against the law,” said Perry Zirkel, a professor of education and law at Lehigh University in Bethlehem, Pa. “Two years ago, I thought [the Bush administration] was getting away with implementation of the law, because lots of states were backing down, but now with what’s happening, I’m not sure.”

When it arrived last week, the NEA’s long-awaited legal challenge to the No Child Left Behind Act garnered plenty of attention.

Suing along with the 2.7 million-member labor behemoth and 10 of its affiliates are school districts in Pontiac, Mich.; Laredo, Texas; and south-central Vermont. They have asked the U.S. District Court in Detroit to free schools from having to comply with any parts of the No Child Left Behind law on their own tab.

The suit charges that the sweeping federal education law—passed at the end of 2001 and signed by President Bush in January 2002—is being implemented illegally because billions of dollars worth of federal underfunding has forced states to use their own money to carry out its mandates.

Reg Weaver

According to the NEA, that financial burden is contrary to a provision in the law itself that states: “Nothing in this act shall be construed to … mandate a state or any other subdivision thereof to spend any funds or incur any costs not paid for under this act.”

The idea behind the challenge is simple, said NEA President Reg Weaver: “If you regulate, you must pay.”

Debating the Numbers

Federal education officials have repeatedly countered arguments about inadequate funding by pointing to what they say are “historic” levels of money budgeted to ensure that the law’s goals are met. And in theory, states could forgo federal education aid if they wished to be free of the mandates.

Education Department spokeswoman Susan Aspey called the suit “regrettable” in a statement last week and urged the NEA to “join us in helping children who need our help the most in classrooms, instead of spending its time and members’ money in courtrooms.”

Observers had predicted that more signs of resistance to the federal law would surface as states and districts moved from the costs of planning, data collecting, and testing to those of trying to meet the student-performance levels required. The law, a reauthorization of the 40-year-old Elementary and Secondary Education Act, calls for increased testing, particularly in grades 3-8, with the aim of getting all students to a “proficient” level by 2014; higher teacher qualifications; and increasingly severe consequences for schools that fail to meet the academic standards.

According to the NEA suit, the gap between the spending authorized by the law and the actual amount that goes to the states has been growing. Further, a number of calculations by the states show that even the authorized amount would fall billions short of providing the tutoring and greater school time that low-achieving students would minimally need to reach the bar.

President Bush’s proposed $13.34 billion in spending next year on the law’s Title I—the biggest federal program in precollegiate education—is more than $9 billion less than the authorized amount, the court papers say.

In addition, the suit argues, to meet federal mandates, states and districts have had to siphon money away from programs that education officials say would help students more in the long run.

The national union is footing the bill for the legal challenge, though officials declined to estimate the cost at a press conference last week.

The NEA’s general counsel, Robert H. Chanin, said the plaintiff districts were chosen because they represent a cross section of those the law is especially harming. The 10,900-student Pontiac district mainly enrolls African-American students, while Laredo’s 23,500 students are mostly of Hispanic descent. The six small school systems within Vermont’s umbrella Rutland Northeast Supervisory Union are rural.

Even with the national union’s deep pockets, the suit will not be easy to win, experts agreed.

“NEA and the school districts have a case to be made, but I don’t know that they’ll prevail in court,” said Jack Jennings. The president of the Center on Education Policy, a policy and research group in Washington, Mr. Jennings was a longtime senior aide to House Democrats on education. “There could be endless arguments,” he said, “about what is really required by the legislation.”

Bush administration officials have often pointed out, for example, that it’s common for Congress to appropriate less than the full amount of funding that is authorized under a particular law.

Political Purposes

Just inducing a court to get to the merits of the arguments could be difficult, several lawyers concluded.

“The federal courts have not shown a great deal of willingness to get into NCLB issues,” said John W. Borkowski, a lawyer with the Washington-based firm of Hogan & Hartson. Nonetheless, he said, many districts will be watching the suit closely with an eye to supporting it or filing their own.

Mr. Zirkel, the Lehigh University professor and a lawyer, agreed that even getting the court to take the case might not be easy.

“I’m not betting my money on the NEA and the school districts,” considering the outcomes of the few suits on the law that have already had their day in court, he said. “If the court can get out of this case, it will get out of it because this is a huge political hot potato not very amenable to court resolution.”

Still, observers agreed that the suit could serve the political purposes of those who dislike the law or believe districts should get more money.

“You get public attention mobilized, and the Education Department may decide it makes political sense to strengthen the funding of the act,” said Larry Sabato, the director of the University of Virginia’s Center for Politics.

But, he added, the union could lose as well as gain in challenging the law. “They don’t want to give Americans the impression they are always saying no to reform,” he said.

Indeed, Ross Wiener, the policy director for the Education Trust, a Washington research and advocacy organization that promotes academic achievement for disadvantaged students, predicted that the suit would “almost certainly” be dismissed before going to trial. He said that the NEA was making itself look bad with the effort.

“This lawsuit is a cynical publicity stunt for the NEA,” Mr. Wiener wrote in an e-mail. The fact that the union for months unsuccessfully sought a state to join the suit, he added, “speaks volumes about how extreme and marginalized the leadership of the NEA has come to be seen.”

But the superintendent of the Laredo school district, one of those suing along with the NEA, views the union as a champion of students who, she believes, are being harmed by the law.

“We’re already having to live by an accountability system that is not sound, and on top of that, we don’t have enough money to live up to the mandate,” said Sylvia Bruni. “I’m hoping that if enough attention is paid to [the effects of the law], it will lose its partisan aspect, and we can get fair testing and fair funding.”

State Resistance

Meanwhile, actions by three states have made good on threats to distance themselves from at least some aspects of the law.

Rep. Margaret Dayton

Most notably, the Utah legislature voted overwhelmingly last week to allow its state accountability laws to supersede the federal mandates. The bill, which the governor has said he will sign, also would direct Utah education officials to ignore any provision of the law that was not paid for by federal funds.

The move means the state could face losing nearly three-quarters of its federal education aid. (“Utah Passes Bill to Trump ‘No Child’ Law,” this issue.)

Other states and analysts were closely watching the move by the legislature, particularly because it pits some of President Bush’s strongest supporters against his administration and its hallmark education plan, which they view as federal interference.

Utah’s action also forged, at least in theory, unlikely alliances between the Republican-dominated state and Democrats and liberal groups that want more education funding.

While the U.S. Department of Education and most conservative-leaning groups focused their attention on the NEA’s lawsuit, the Democratic National Committee waved Utah’s action as another example of a backlash against the level of No Child Left Behind funding.

On another state front, Texas’ top education official, in a letter to the federal Education Department, defended her decision to grant a slew of appeals that ensured large numbers of schools and districts made adequately yearly progress, or AYP, in the 2003-04 school year.

Dr. Shirley Neeley

Texas Commissioner of Education Shirley Neeley in February said she accepted the appeals of 431 districts and 1,312 schools for failing to make AYP because they followed state law on the testing of students with disabilities. ("Texas Stands Behind Own Testing Rule," March 9, 2005.)

In her April 19 letter to federal officials, Ms. Neeley wrote that she made that decision because the federal department released rules governing the testing of such students just one month before Texas was scheduled to give its tests. The schools tested students under existing state law, which allows for greater leniency in giving alternative tests to students with disabilities and still count students as proficient for accountability purposes.

“It was not remotely possible to develop statewide alternate achievement standards through a documented and validated process in time for these assessments,” Ms. Neeley wrote in response to a federal monitoring report on Texas’ compliance with the law. “Nor was it possible to undo instantly the assessment arrangements that had been made” for students with disabilities.

As a consequence of that decision, U.S. Secretary of Education Margaret Spellings has threatened to withhold up to $12 million of the state’s grants under the No Child Left Behind Act.

‘A Positive Step’

Richard Blumenthal

And in Connecticut, Attorney General Richard Blumenthal announced plans this month to file a lawsuit against the federal Education Department, maintaining that it had created “unfunded mandates imposed unlawfully on Connecticut and other states.”

The lawsuit, to be filed in federal court, would argue that the NCLB law illegally forces states to use their own money to carry out testing requirements. Last week, the attorney general’s office was unable to comment on when the suit might be filed.

Mr. Blumenthal applauded the NEA’s lawsuit, saying it would add weight to Connecticut’s endeavor.

“This action is a powerful, positive step,” he said in a statement, “in stopping illegal federal unfunded mandates under No Child Left Behind.”

Vol. 24, Issue 33, Pages 1,18

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