Education Spending Raised in Arguments on Health-Care Law

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For the U.S. Supreme Court, the closely watched six hours of arguments last week were all about the Patient Protection and Affordable Care Act. So how did the Elementary and Secondary Education Act, teacher tenure, curriculum, Title IX, and other education topics become part of the discussion?

They came up as the justices debated whether the health-care law's expansion of the Medicaid program would give the federal government limitless powers to impose conditions on the states when they accept money in other areas, such as education.

The Medicaid question was the last one to be tackled by the justices in three historic days of arguments over the 2010 law championed by President Barack Obama. In related cases, the high court is also weighing the constitutionality of the law's individual mandate, which would require most uninsured Americans to obtain health-care coverage or pay a penalty, and whether the rest of the law could survive if that provision were invalidated.

The issue in the Medicaid case, Florida v. Department of Health and Human Services (No. 11-400), is the scope of the authority of Congress to set conditions for the states when they accept federal money. In addition to the huge federal health-insurance program for the poor, the case has implications for other aid programs that come with conditions.

The health-care overhaul calls for Medicaid to expand to cover larger numbers of the poor. The federal government initially would cover 100 percent of the costs, but that would eventually drop to 90 percent.

A group of 26 states, led by Florida, is challenging the expansion as unconstitutionally coercive.

"There has to be some limit on coercion," the states' lawyer, Paul D. Clement, said during the March 28 arguments.

'Take It or Leave It'

The Obama administration argues that the states' theory would lead to legal challenges of other federal spending programs as too coercive. The administration noted in its brief in the case that Florida in 2008 received $728 million in federal Title I aid under the ESEA. In exchange for such funds, Florida and other recipients must comply with federal laws such as Title VI of the Civil Rights Act of 1964, which bars race discrimination in federal education programs, and Title IX of the Education Amendments of 1972, which bars discrimination based on sex.

During the arguments, Justice Samuel A. Alito Jr. offered U.S. Solicitor General Donald B. Verrilli Jr., who was defending the Medicaid expansion, a hypothetical example with echoes of the administration's Race to the Top program, which requires states to adhere to certain school overhaul priorities as a condition of receiving competitive grants.

Justice Alito suggested a "federal education tax" that would return to the states in grant form as much as they now spend on schooling.

"Now, this is a great offer, and we think you will take it," Justice Alito said. "But of course, if you take it, it's going to have some conditions because we are going to set rules on teacher tenure, on collective bargaining, on curriculum, on textbooks, class size, school calendar, and many other things. So take it or leave it."

The states could say no, but they would have to pay the federal education tax, plus come up with their own money to replace the federal dollars they declined, the justice added.

"Would that be the point where financial inducement turns into coercion?" Justice Alito said.

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Mr. Verrilli said no, because the states would have the choice of whether to participate in such a program.

Meanwhile, Justice Ruth Bader Ginsburg pressed Mr. Clement, the states' lawyer, on whether Title IX's application to colleges and universities was coercive.

"Most colleges and universities are heavily dependent on the government to fund their research programs and other things," Justice Ginsburg said. "And then Title IX passes, and a government official comes around and says to the colleges, 'You want money for your physics labs and all the other things you get it for, then you have to create an athletic program for girls.'

"And the recipient says, 'I am being coerced, there is no way in the world I can give up all the funds to run all these labs that we have; I can't give it up, so I'm being coerced to accept this program that I don't want.' "

The states argue that the Medicaid program is uniquely massive, and that other federal aid programs, including in education, do not lend themselves to coercion claims.

Lots of Coercion?

Some backers of the health-care law are not as convinced.

"The No Child Left Behind Act operates in a similar way to Medicaid," said Douglas T. Kendall, the president of the Constitutional Accountability Center, a think tank in Washington that supports the law and the Medicaid expansion. "Every use of conditions on federal spending involves efforts to ensure that the states participate. If that is coercion, then a lot of things could be considered coercion. We hope the court does not go down that road."

Some conservatives have raised coercion concerns about the NCLB law, though the two main lawsuits that broadly challenged the law a few years ago—one by Connecticut and another backed by the National Education Association—were based on a theory that the federal government was requiring states to spend their own money to comply. Both suits failed.

The health-care cases are expected to be decided by the end of the court's term in late June.

Vol. 31, Issue 27, Page 19

Published in Print: April 4, 2012, as Education Spending Raised in Arguments on Health-Care Law
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