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Published in Print: August 31, 2005, as Connecticut Files Court Challenge to NCLB

Connecticut Files Court Challenge to NCLB

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Connecticut last week became the first and, so far, only state to sue over the federal No Child Left Behind Act, a move that some analysts say could embolden policymakers elsewhere to step up their varied challenges to the Bush administration’s signature education law.

The suit, filed in U.S. District Court in Hartford on Aug. 22, argues that federal funding to Connecticut falls far short of what is needed to meet the law’s testing and accountability requirements, a violation of the U.S. Constitution and provisions in the nearly 4-year-old statute itself.

“Our message today is: Give up the unfunded mandates, or give us the money,” Connecticut Attorney General Richard Blumenthal said at a press conference.

The action came nearly five months after he first announced plans to sue over the law. Mr. Blumenthal had said one of the reasons he waited was to give other states the chance to join the suit, but none had done so as of late last week.

The No Child Left Behind law calls for high standards for academic achievement, testing of all pupils in grades 3-8 in reading and mathematics, and intervention in low-performing schools.

More Suits Coming?

At an Aug. 24 press event in Atlanta, Secretary of Education Margaret Spellings called the unfunded-mandate argument a “red herring,” asking why Connecticut was afraid to assess its performance as the law requires. U.S. Department of Education spokeswoman Susan Aspey added in a statement that “nearly every state is on board and working with us to help their students.”

A report this month sponsored by an activist group called the Civil Society Institute countered that lawmakers in 21 states have considered—although not necessarily passed—bills critical of the federal education law, and that 40 states have sought federal waivers or exemptions from some of its provisions.

Chuck Dow, a spokesman for the state attorney general’s office in Maine, said last week that a lawsuit by his state challenging the No Child Left Behind law remained “an open possibility.”

Kristen Tosh Cowan, a San Francisco-based lawyer who advises states and districts on federal education issues, said that state attempts to temper or resist provisions of the law could be even more likely in the wake of Connecticut’s court action, even if others don’t pursue legal challenges.

“I don’t know that we’ll see a lot more litigation,” said Ms. Cowan, a partner with the law firm Brustein & Manasevit. “I think you could maybe see states being a little more aggressive in what they ask for informally, and perhaps more political pressure.”

Connecticut’s 28-page complaint recounts how its attempts to get waivers of some of the student-assessment provisions in the federal law have been repeatedly denied in recent months by Secretary Spellings.

In particular, Connecticut education officials sought unsuccessfully to get out of the requirement that they expand their testing in core subjects—which they have in grades 4, 6, and 8—to cover the entire span of grades 3-8.

An estimate by the Connecticut education department pegs the cost of providing those and additional assessments called for in the law at $41.6 million by 2008, compared with $33.6 million that the state is slated to receive from the federal government by then for test implementation.

The legal case rests largely on a provision in the No Child Left Behind Act stating that “nothing in this chapter shall be construed to authorize” the federal government to “mandate a state or any subdivision thereof to spend any funds or incur any costs not paid for under this chapter.”

The complaint also cites the spending clause in Article I of the Constitution, which has been construed by the courts as requiring Congress to make unambiguous any conditions attached to states’ acceptance of federal money.

Similar arguments are made in a separate lawsuit filed in April by the National Education Association. The U.S. Education Department has asked a judge in U.S. District Court in Detroit to dismiss that case, arguing that the law is not an unfunded mandate because states need not take the federal money allocated for it. ("U.S. Asks Court to Dismiss Lawsuit Over NCLB," July 13, 2005.)

Other State Action

Connecticut’s lawsuit specifically seeks a court order to bar the federal Education Department from withholding funds from the state for failing to comply with what the complaint calls “a rigid, arbitrary, and capricious interpretation” of the No Child Left Behind Act.

“That’s money that goes to schools that serve our neediest children,” Mr. Blumenthal said.

States are voicing their objections to the law in other ways, as noted by the Civil Society Institute. Released by the Newton Centre, Mass.-based organization this month, “NCLB Left Behind” catalogs recent state legislation, including Utah’s passage of a measure that gives state education law precedence over federal rules, and a Colorado law offering financial protection to districts that opt out of the No Child Left Behind law’s requirements.

Vol. 25, Issue 01, Pages 23,27

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