Updated: January 30, 2008

Sparring Continues Over NCLB Legal Ruling

Spellings warns states, districts to continue obeying law’s mandates.

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A court ruling that revived a major legal challenge to the No Child Left Behind Act is drawing sharply differing interpretations from Secretary of Education Margaret Spellings and advocates for states and school districts.

“No state or school district should regard the ruling as license to disregard NCLB’s requirements,” Ms. Spellings wrote in a letter this month to all chief state school officers.

The U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled Jan. 7 that the states were not on clear notice of their financial obligations when they agreed to accept federal money under the NCLB law. In a 2-1 panel decision, the majority ruled that state and local officials could “reasonably read” the law’s unfunded-mandate provision to conclude the federal government would pay for all costs associated with complying with the law. ("Court Ruling in NCLB Suit Fuels Fight Over Costs," Jan. 16, 2008.)

Secretary Spellings’ Jan. 18 letter seemed in part a response to comments by Robert H. Chanin, the general counsel of the National Education Association, that the ruling meant states and districts could not be compelled to use their own resources to comply with the law’s mandates on testing and school improvement. The 3.2 million-member NEA organized the lawsuit on behalf of several of its affiliates and nine school districts in three states.

Ms. Spellings wrote that she strongly disagreed with the 6th Circuit court’s ruling and was “exploring all legal remedies to overturn the decision.” In the meantime, she added, state and local officials should fully comply with the law, which requires states to assess students’ reading abilities and mathematics skills in grades 3-8 and once in high school. If schools fail to meet annual achievement goals, they must provide tutoring to students in those schools or provide transportation to schools that do meet their achievement targets.

Even if the court’s interpretation stands,Ms. Spellings said, the ruling “would only provide a limited defense in future enforcement proceedings” under the NCLB law.

Connecticut’s View

The secretary’s letter was disconcerting to an official of one state who has been closely involved in the legal debate over the 6-year-old law, an overhaul of the Elementary and Secondary Education Act.

Connecticut Attorney General Richard Blumenthal, who has filed a lawsuit on behalf of his state challenging the federal law on the same grounds, said: “In our view, she has an obligation to follow the 6th Circuit’s ruling. It’s binding on her.”

Mr. Blumenthal, a Democrat who is elected to his office, said he would not go as far as advising districts that they shouldn’t spend their own money on NCLB obligations where the federal government’s funding falls short.

“I’m not providing legal advice to school districts in the 6th Circuit, but I am calling on the secretary of education to obey the law as it has been clearly and emphatically interpreted by the highest federal court [to consider it] so far,” Mr. Blumenthal said in an interview this week.

The 6th Circuit covers Kentucky, Michigan, Ohio, and Tennessee.

Connecticut’s lawsuit is pending before a federal district judge in Hartford. Mr. Blumenthal intends to make new arguments based on the 6th Circuit ruling, and he hopes to be able to advance his case to the U.S. Court of Appeals for the 2nd Circuit, in New York City.

Meanwhile, a lobbyist for the National School Boards Association agreed this week that the 6th Circuit decision does not relieve states and schools from using their own money to comply with the NCLB law. But the decision puts new pressure on President Bush and Congress, the lobbyist argued, to ensure that they provide enough money to cover the costs of annual testing, free tutoring, and other obligations under the act.

“There’s no firm resolution legally coming down the pike any time soon,” said Marc F. Egan, the director of federal affairs for the Alexandria, Va.-based NSBA. “We hope this will bring both the [Bush] administration and Congress together so they realize that they have to do their part” by dramatically increasing federal financing for the law, he said.

Spending Cycle

Mr. Egan said that the NSBA is advising districts to continue spending their own money for the law’s requirements that their federal grants don’t cover. At the same time, the NSBA and other national education groups are mounting an aggressive effort to lobby Congress for additional funds for the law’s programs.

In December, Congress passed a spending bill providing a 9 percent increase for the Title I program for fiscal 2008, increasing funding for the law’s largest program—aimed at disadvantaged students—to $13.9 billion. The NCLB law authorized up to $25 billion to be spent on Title I in fiscal 2007, which ended Sept. 30, but did not set such a level for the current fiscal year.

The 6th Circuit decision “raises the issue … that the federal government has fallen down on its responsibility for funding NCLB,” Mr. Egan said.

President Bush will propose his fiscal 2009 budget early next month, and Congress will begin working on appropriations bills to finance education and other programs shortly thereafter. The fiscal year begins Oct. 1.

Vol. 27, Issue 21, Page 19

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