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Published in Print: March 2, 2011, as High Court Refuses to Hear Conn. Challenge to NCLB Law

High Court Refuses to Hear Conn. Challenge to NCLB Law

Separately, court rules in vaccine-liability dispute, tax case of interest to K-12

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Putting an end to the last broad lawsuit against the No Child Left Behind Act, the U.S. Supreme Court last week declined to hear Connecticut’s challenge to the federal education law.

Meanwhile, in a caseRequires Adobe Acrobat Reader being watched closely in the autism community, the court ruled 6-2 that a federal law preempts all design-defect claims brought in state courts by plaintiffs seeking compensation for injuries allegedly caused by a vaccine’s side effects.

And, separately, the court ruled 7-2 that a railroad may challenge sales and use taxes charged by the state of Alabama on diesel fuel used by railroads, while motor and water carriers are exempt. The challenged taxes were defended by the state as critical to the funding of its education system.

In the NCLB case, the justices declined without comment on Feb. 22 to take up the only legal challenge to the 9-year-old law brought by a state. Connecticut’s lawsuitRequires Adobe Acrobat Reader, filed in 2005, alleged that the federal government could not require states to spend their own money on the law’s accountability requirements because of the statute’s language barring unfunded mandates.

No Waiver Granted

The U.S. Department of Education, under the administration of President George W. Bush, had refused to grant Connecticut a waiver of annual testing requirements. The state claimed it had spent at least $41.6 million of its own money from 2002 to 2008 to comply with the law, the current version of the Elementary and Secondary Education Act.

A three-judge panel of the U.S. Court of Appeals for the 2nd Circuit decided last year that the central claim of the case was premature because the Education Department had not taken enforcement action against the state.

“The 2nd Circuit’s decision defies the law and common sense,” then-Connecticut Attorney General Richard Blumenthal argued in the Supreme Court appeal filed last October in State of Connecticut v. Duncan (No. 10-489). Mr. Blumenthal, a Democrat, was elected to the U.S. Senate in November.

The Obama administration defended the lawRequires Adobe Acrobat Reader, saying in its high court brief that Connecticut never raised its funding claims when it sought waivers from the testing requirements. In June 2010, the justices declined to hear an appeal stemming from the National Education Association’s challenge to NCLB, which was also based on the unfunded-mandates provision. ("Focus Turns to Congress After High Court's Denial of Challenge to NCLB Law," June 16, 2010.)

In the vaccine case, Bruesewitz v. Wyeth LLCRequires Adobe Acrobat Reader (No. 09-152), the court had to decide whether a provision of the National Childhood Vaccine Injury Act of 1986 precludes liability for certain claims against vaccine manufacturers even if a vaccine’s side effects were avoidable.

The case was brought on behalf of Hannah Bruesewitz, now 19, who suffered seizures and has had developmental disabilities since having a bad reaction to a diphtheria-tetanus-pertussis (DPT) vaccine known as Tri-Immunol as an infant in 1992.

Lawyers for the family argued that the vaccine, developed in the 1940s, had long been superseded by a more modern design, but that the drug manufacturer declined to change its DPT vaccine’s design because it viewed the economic costs as outweighing any potential gain in market share. Wyeth, now part of Pfizer Inc., withdrew Tri-Immunol from the market in 1998.

Related Blog

Justice Antonin Scalia said in the majority opinion that Congress set up a special vaccine court to compensate injured children without driving vaccine makers from the market.

“Vaccine manufacturers fund from their sales an informal, efficient compensation program for vaccine injuries,” Justice Scalia said in the opinion joined by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas, Stephen G. Breyer, and Samuel A. Alito Jr.

Justice Sonia Sotomayor wrote a dissent joined by Justice Ruth Bader Ginsburg. Justice Elena Kagan did not participate in the case.

In a lengthy footnote, Justice Sotomayor noted the 5,000 pending claims in the special vaccine court alleging a link between certain vaccines and autism. She suggested the majority was swayed by the vaccine industry’s fears of a crushing wave of state tort litigation.

Respected studies have strongly rebutted claims of a vaccine-autism link.

In the tax case, CSX Transportation Inc. v. Alabama Department of RevenueRequires Adobe Acrobat Reader (No. 09-520), Alabama education groups filed a friend-of-the-court briefRequires Adobe Acrobat Reader on the side of the state, arguing that the tax on railroads is critical because it helps finance the state’s Education Trust Fund, to the tune of about $20 million a year.

But the court, while not addressing whether the railroad should prevail, sent the case back to lower courts for further proceedings.

Vol. 30, Issue 22, Page 19

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