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Published in Print: October 28, 2009, as NCLB Suit's Dismissal Intact After Deadlock by 6th Circuit Judges

NCLB Suit Dismissal Stands as Appeals Court Deadlocks

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A deadlock by a federal appeals court over a key legal challenge to the No Child Left Behind Act means that a lower court’s dismissal of the case still stands.

The full U.S. Court of Appeals for the 6th Circuit, in Cincinnati, spent 10 months deliberating over the case involving a suit filed by nine school districts in Michigan, Texas, and Vermont, backed by the National Education Association, that challenges the federal K-12 education law as an unfunded mandate.

The court issued 93 pages’ worth of opinions on Oct. 16 in Pontiac School District v. Secretary of the U.S. Department of Education, with eight judges accepting one of the NEA’s arguments against the 2002 law, and eight judges backing various arguments supporting dismissal of the case.

“Consequently, the judgment of the district court is affirmed,” said a short order that accompanied the appellate court’s opinions.

As of last week, the NEA had not said whether it would appeal to the U.S. Supreme Court.

Provision on Spending

Central to the case is a provision in the NCLB law that says, “Nothing in this act shall be construed to ... mandate a state or any subdivision thereof to spend any funds or incur any costs not paid for under this act.”

Such language was added to a number of federal education laws in 1994, including the reauthorization of the Elementary and Secondary Education Act, of which NCLB is the latest version.

In the case before the 6th Circuit court, Judge R. Guy Cole Jr. wrote an opinion, signed by seven other judges, that agreed at least in part with the school districts and the NEA that the so-called unfunded-mandates provision in the NCLB law meant that states and districts could not be required to spend their own money to comply with it.

“NCLB rests on the most laudable of goals: to ‘ensure that all children have a fair, equal, and significant opportunity to obtain a high-quality education,’ ” wrote Judge Cole, who was the author of a three-judge panel decision in the case that revived the NEA’s suit last year. “Here, nobody challenges that aim. But a state official deciding to participate in NCLB reasonably could read [the unfunded-mandates provision] to mean that the state need not comply with requirements that are ‘not paid for under the act’ with federal funds.”

Falling Short

Judge Cole’s opinion, however, fell one vote short of controlling the outcome of the case.

Judge Jeffery S. Sutton, joined by five other judges, wrote an opinion that disagreed with Judge Cole’s view on the merits of the NCLB arguments.

“Depending on whom you ask, the No Left Child Behind Act might be described in many ways: bold, ground-breaking, noble, naive, oppressive, all of the above and more,” Judge Sutton wrote. “But one thing it is not is ambiguous, at least when it comes to the central trade-off presented to the states: accepting flexibility to spend significant federal funds in return for (largely) unforgiving responsibility to make progress in using them.”

In all, a total of eight judges supported dismissal of the case, albeit on differing grounds. The 8-8 deadlock let stand the 2005 dismissal of the case by a federal district judge in Detroit.

Vol. 29, Issue 09, Page 8

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