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Published in Print: October 4, 2006, as 3 of 4 Claims in Conn.’s NCLB Suit Dismissed

3 of 4 Claims in Conn.’s NCLB Suit Dismissed

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A federal judge last week dismissed three of the four claims in Connecticut’s lawsuit challenging the No Child Left Behind Act, largely on procedural grounds.

The Sept. 27 ruling by Judge Mark R. Kravitz of the U.S. District Court in Hartford, Conn., left both the state and the U.S. Department of Education claiming a victory of sorts.

Connecticut sued U.S. Secretary of Education Margaret Spellings last year in a bid to force the federal government to increase its funding to a level that the state contends would be sufficient to meet the education law’s mandates, which include yearly testing of most students between grades 3 and 8 and once during high school.

“An alternative would be to afford greater flexibility” in implementing the law, Connecticut Attorney General Richard Blumenthal said of the state’s goals, in a statement after the ruling.

Ruling on the Education Department’s motion to dismiss the lawsuit, Judge Kravitz concluded that he lacked jurisdiction to decide the merits of three of the state’s claims. For two of those, it was on the basis that the claims were premature because the secretary has not taken any enforcement action against the state.

Formative Tests

In its first claim, the state sought a declaration of the meaning of the No Child Left Behind law’s language barring “unfunded mandates.” The state contends that it is not required to spend its own funds to comply with the education law as the federal Education Department has interpreted it.

And the state disputes those interpretations, which undergird the department’s mandate that states do annual assessments of special education students at the students’ grade levels rather than at the students’ instructional levels, the state’s preference. The state also disagrees that the law requires that students who are not native speakers of English must take math assessments in their first year after arriving in the country and must take reading assessments the following year. The state wants to wait three years before beginning such tests.

The state, in its lawsuit, also disputes the federal requirement that “nonformative” annual testing occur annually from grades 3 to 8. The state wants to administer what are known as formative tests—tests designed specifically to help teachers measure students’ progress—to students in alternate years. Connecticut argues that such tests are more useful and less expensive than the nonformative tests.

In practice, however, to avoid penalties that could include the loss of federal aid, Connecticut has obeyed the federal interpretations of the education law.

Thus, Judge Kravitz concluded that he could not properly make a “pre-enforcement declaration” about whether the the secretary of education’s interpretation of the unfunded-mandate provision was correct.

“The word ‘pre-enforcement’ is used because, at this point, the state continues to comply with the act,” the judge wrote.

For similar reasons, the judge also dismissed the state’s claims based on the spending clause in Article I of the U.S. Constitution, which authorizes spending by Congress and is the hook by which the federal government requires states to accept obligations in exchange for federal funds.

Judge Kravitz also threw out the state’s claim that the Education Department’s denial of the state’s request for waivers was “arbitrary and capricious” under the federal Administrative Procedure Act, which sets ground rules for reviews of executive-branch decisions.

On that claim, the judge found no clear legal standards for weighing the state’s contention that Secretary Spellings failed to “meaningfully consider” one of the state’s waiver requests when she announced that she would refuse to consider any waivers that sought approval of formative testing in alternate grades.

“To be sure, the secretary and the state disagree about how best to implement the goals of the [NCLB] act,” the judge wrote. “But that policy disagreement can hardly be labeled an abdication of the secretary’s responsibilities.”

Suit ‘Alive and Well’?

But the judge kept alive the state’s claim that the Education Department acted “arbitrarily and capriciously” in denying the state’s request for amendments to its plan for complying with the education law’s provisions on testing non-native speakers of English and special education students.

The judge said deciding that question would require him to examine the administrative record on those matters. He set Oct. 16 as the deadline for the two sides to agree on a schedule for filing relevant information and for others to file motions and relevant papers to intervene in the case.

In a statement posted on his Web site, Attorney General Blumenthal said his state’s case against the NCLB law was “alive and well.”

Acknowledging that the judge had dismissed part of the state’s claims, Mr. Blumenthal said, “This ruling is solely on technical jurisdictional issues: The judge made clear that he has not ruled on the core legal issues of our case.”

The federal Education Department also considered the ruling a win. Katherine McLane, the press secretary for Secretary Spellings, said in a statement, “Importantly, the judge agreed that the secretary has discretion to deny a waiver request and that her decision is not reviewable by a court.”

“The remaining issues in this case have been reserved for another day, after the court considers other information,” Ms. McLane added.

Vol. 26, Issue 06, Pages 16,19

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