Top State Lawyer’s Analysis

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Peggy A. Lautenschlager

In her May 12, 2004, legal analysis of the federal No Child Left Behind law, a reauthorization of the Elementary and Secondary Education Act, Wisconsin Attorney General Peggy A. Lautenschlager raises questions about whether the law and its mandates are adequately funded. Much of her analysis centers on the following provision:

20 U.S. Code, Chapter 7907
(a)General Prohibition. Nothing in this act shall be construed to authorize an officer or employee of the federal government to mandate, direct, or control a state, local educational agency, or school’s curriculum, program of instruction, or allocation of state or local resources, or mandate a state or any subdivision thereof to spend any funds or incur any costs not paid for under this act.

The following are excerpts from the state attorney general’s analysis:

  • The states are entitled to take Congress at its word that it did not intend to require state and local governments to expend their own funds to comply with the detailed and proscriptive federal mandates in the ESEA.
  • The issue is not about the importance of educational progress, proficiency, and testing; the critical question is whether the esea pays for them.
  • [The Wisconsin Department of Public Instruction] and other state agencies will need to conduct a detailed analysis to determine the precise amount of state funds that currently are being used to defray the esea mandates. The only real question, however, appears to be just how much additional state funding already has been required and how quickly that amount will increase.
  • Many educators fear that the ESEA testing mandates may force states to alter radically their educational curriculum and programs to focus almost exclusively on improving test scores of underperforming students. … Requiring such significant changes in a state’s educational system and ‘values’ also may be beyond Congress’ legislative powers, regardless of whether adequate funds are provided, or even whether such changes, in the federal government’s view, are desirable.
  • Although a court could wait for specific sanctions against a specific school, the delay would cause only additional harm to our students. The need by school districts to prepare budgets and curriculum, it seems to me, may well be sufficient to determine that the claims are ripe.
  • Litigation is always uncertain. I do not, however, presently perceive insurmountable hurdles to a court reaching the merits of an action seeking a declaration about the meaning and effectof 20 USC [Chapter] 7907(a).

SOURCE: Wisconsin Department of Justice

Vol. 23, Issue 38, Page 20

Published in Print: May 26, 2004, as Top State Lawyer’s Analysis
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