Appeals Court Upholds Dismissal of NCLB Suit

By Mark Walsh — October 17, 2009 2 min read

A federal appeals court deadlocked over a key legal challenge to the No Child Left Behind Act, resulting in the affirmance of a lower court’s dismissal of the case.

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.

On Friday, the court issued 93 pages worth of opinions 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 NCLB, 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 court’s opinions.

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.”

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 school districts could not be required to spend their own money to comply with the law.

“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 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.”

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, naïve, 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 tradeoff presented to the states: accepting flexibility to spend significant federal funds in return for (largely) unforgiving responsibility to make progress in using them.”

Judge David W. McKeague, joined by two other judges, said in an opinion that he would not rule on the merits because he believed the NEA’s suit lacked necessary plaintiffs--the states of Michigan, Texas, and Vermont.

That meant a total of eight judges supported dismissal of the case, albeit on differing grounds, and that deadlock meant that a federal district judge in Detroit’s dismissal of the case was upheld.

I haven’t seen any reaction on the Web yet from the U.S. Department of Education or from the NEA. It is noteworthy that arguments by NEA General Counsel Robert H. Chanin made more headway with the 6th Circuit than seemed evident after oral arguments.

I reported in the blog here on the en banc oral arguments in the case last December (with a slightly revised story appearing in Education Week here.)

A version of this news article first appeared in The School Law Blog.

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