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Published in Print: July 12, 2006, as Conn. Sees Legal Boost for Its NCLB Suit

Conn. Sees Legal Boost for Its NCLB Suit

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The state of Connecticut is seizing on language in a recent U.S. Supreme Court opinion on special education, saying it bolsters the state’s challenge to the federal No Child Left Behind Act. Several independent legal experts agree, although not without some cautionary notes.

“We think it could be profoundly significant to our case,” Connecticut Attorney General Richard Blumenthal said in an interview last week, referring to the high court’s decision in Arlington Central School District v. Murphy (Case No. 05-18).

The court ruled 6-3 on June 26 that the Individuals with Disabilities Education Act does not authorize parents who win disputes with school districts over their children’s special education plans to recover the costs of experts.

In his majority opinion, Justice Samuel A. Alito Jr. said the spending power outlined in Article I of the U.S. Constitution requires Congress to give the states clear notice of their obligations under a spending-clause statute such as the IDEA.

Justice Alito noted court precedents that say federal legislation under the spending clause “is much in the nature of a contract, and therefore, to be bound by federally imposed conditions, recipients of federal funds must accept them voluntarily and knowingly.”

“States cannot knowingly accept conditions of which they are unaware or which they are unable to ascertain,” Justice Alito said. He went on to conclude that state officials would not have clearly understood when they accepted IDEA money that one of the conditions was that parents could be reimbursed for experts’ fees.

“In a spending-clause case, the key is … what the states are clearly told regarding the conditions that go along with the acceptance of [federal] funds,” Justice Alito said.

‘Adequate Notice’

Mr. Blumenthal, the Connecticut attorney general, said in the July 5 interview that state lawyers filed papers soon after the Supreme Court’s ruling to notify the federal district judge hearing the state’s challenge to the No Child Left Behind law.

“The court states very clearly that conditions attached to federal funds have to be unambiguous and provide adequate notice to the states as a requirement under the spending clause,” he said.

Connecticut contends in its suit, which is pending in the federal district court in Hartford, that the U.S. Department of Education’s refusal to fully fund the testing system it is requiring of the state or else waive the requirement violates both the spending clause and language in the NCLB law itself against unfunded mandates.

The Bush administration has sought dismissal of the state’s suit. A Department of Justice spokeswoman said last week that lawyers were reviewing the implications of the high court’s ruling.

Justice Alito’s discussion of the spending clause in the Arlington Central case caused a bit of a stir among legal commentators.

Drew S. Days III, a Washington lawyer who filed a friend-of-the-court brief in the IDEA case in support of the parents, said Justice Alito’s language suggested new life for legal arguments that some states had been offering in recent years without much success.

“I’m not sure where it’s going,” but it was notable, said Mr. Days, who was a U.S. solicitor general under President Clinton.

Thomas Hutton, a staff lawyer with the National School Boards Association, said the opinion might indeed aid Connecticut.

“I think their position is bolstered,” he said. “Clearly, the [Supreme] Court has signaled that this spending-clause argument is one that it has embraced.”

Samuel R. Bagenstos, a law professor at Washington University in St. Louis, said Justice Alito’s spending-clause discussion was potentially significant, although he wasn’t sure lower courts would rush to employ it.

“The argument that Congress needs to provide clear notice of every detail at the time a state accepts federal funds is one that is potentially very far-reaching,” said Mr. Bagenstos, who was a law clerk to Supreme Court Justice Ruth Bader Ginsburg. “This gives Connecticut another arrow in its quiver. But it’s not clear it changes the result.”

Vol. 25, Issue 42, Page 34

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