School & District Management

NEA Eyes Congress as High Court Refuses NCLB Case

By Alyson Klein — June 09, 2010 4 min read

Fresh from a snub by the U.S. Supreme Court, the National Education Association is turning to Congress to address its concerns that the Elementary and Secondary Education Act—in the form of the 8-year-old No Child Left Behind Act—is an unfunded mandate.

Alice O’Brien, the general counsel for the 3.2 million-member NEA, said the high court’s June 7 refusal to consider a challenge by the nation’s largest teachers’ union and nine school districts to the NCLB law is the “end of the line” for the lawsuit, but not for the argument that the law places an undue financial burden on states.

“Our schools are now in a terrible economic crisis,” said Ms. O’Brien. Class sizes are ballooning and “we have curriculums that are being slashed,” she said. “To have federal mandates that are unfunded being placed on top of that really results in terrible policy choices.”

In considering the reauthorization of the ESEA, of which No Child Left Behind is the current version, lawmakers “need to think through that issue very clearly, and NEA will encourage them to do so,” Ms. O’Brien said.

The justices issued no comment in declining the appeal in School District of the City of Pontiac v. Duncan (Case No. 09-852).

The full U.S. Court of Appeals for the 6th Circuit, in Cincinnati, deadlocked 8-8 over the case last October. That affirmed a 2005 ruling by the U.S. District Court for the Eastern District of Michigan that dismissed the case.

But seven of the appeals court judges signed on to opinions accepting the union’s view about the law’s “unfunded mandates” language. That gave the union hope that the Supreme Court might take up the case.

In its appeal, the NEA urged the justices to consider whether a provision in NCLB against requiring states or school districts “to spend any funds or incur any costs not paid for under this act” meant that the U.S. secretary of education could not force them to spend their own money to comply with the law’s requirements.

The NEA and its fellow plaintiffs, which included school districts in Michigan, Texas, and Vermont and a number of NEA affiliates, challenged the legislation during the administration of President George W. Bush, who had championed the bipartisan measure and signed it into law. The law was slated to be reauthorized in 2007.

“There is no really recourse; we have to accept it,” Dennis Pollard, a lawyer for the 6,700 student Pontiac, Mich., school district, the lead plaintiff in the case, said of the rebuff by the high court.

The law has “been underfunded right from the get-go,” he said, “and unless the heavens part, schools will end up spending their own resources, which are scarce as can be, to meet the requirements of NCLB.”

Ms. O’Brien, who has worked on the Pontiac case since it was filed in 2005, when she was with Bredhoff and Kaiser, a Washington law firm that helped the NEA with the litigation, said that the lawsuit went farther than many had predicted.

“A lot of people dismissed it out of hand,” she said, but added that the trajectory of the Pontiac case shows that the arguments were able to gain support. “The unfunded mandate [issue] will remain alive and will continue to have a lot of traction.”

Congressional Arena

The debate now moves to Congress, which is likely to weigh such issues as state-federal relations, and other questions in considering the renewal of the ESEA, said Martha Derthink, a retired professor of government at the University of Virginia, in Charlottesville, who has written about court challenges to NCLB, including the Pontiac case.

Other developments, such as the Obama administration’s $4 billion Race to the Top competition, may have shifted the argument on the ESEA’s treatment of the state-federal role in education, said Ms. Derthink, who also co-writes a column on legal issues for the journal Education Next.

“The world has moved on a little bit” since the lawsuit was filed in 2005, Ms. Derthink said. “Issues have changed, and people are talking about things other than NCLB and the unfunded mandate. I think this issue will shift from the courts to Congress.”

The administration, which earlier this year unveiled a blueprint for renewing the ESEA, has indicated it doesn’t agree with the union’s arguments.

In a brief filed in May by U.S. Solicitor General Elena Kagan on behalf of Secretary of Education Arne Duncan, Ms. Kagan urged the justices not to hear the union’s appeal. She argued that the NCLB law allows districts to target federal money toward state and local priorities.

“The act moves from a dollars-and-cents approach to education policy to a results-based approach that allows local schools to use substantial additional federal dollars as they see fit in tackling local educational challenges in return for meeting improved benchmarks,” Ms. Kagan wrote in the brief.

Ms. Kagan, who has been nominated to succeed retiring Supreme Court Justice John Paul Stevens, has since stepped aside from the solicitor general’s post.

Contributing Writer Mark Walsh provided material for this story.
A version of this article appeared in the June 16, 2010 edition of Education Week as NEA Eyes Congress as High Court Refuses NCLB Case

Events

School & District Management Webinar What's Ahead for Hybrid Learning: Putting Best Practices in Motion
It’s safe to say hybrid learning—a mix of in-person and remote instruction that evolved quickly during the pandemic—is probably here to stay in K-12 education to some extent. That is the case even though increasing
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Mathematics Webinar
Building Equitable Systems: Moving Math From Gatekeeper to Opportunity Gateway
The importance of disrupting traditional American math practices and adopting high-quality math curriculum continues to be essential for changing the trajectory of historically under-resourced schools. Building systems around high-quality math curriculum also is necessary to
Content provided by Partnership for L.A. Schools
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Student Well-Being Webinar
Measuring & Supporting Student Well-Being: A Researcher and District Leader Roundtable
Students’ social-emotional well-being matters. The positive and negative emotions students feel are essential characteristics of their psychology, indicators of their well-being, and mediators of their success in school and life. Supportive relationships with peers, school
Content provided by Panorama Education

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

School & District Management Opinion Pandemic Recovery Will Be Complex. We’ll Need the Best School Leaders
To face the education challenges of today and tomorrow, we must invest in the principal pipeline, writes Michael J. Petrilli.
Michael J. Petrilli
4 min read
Leader pointing hand forward, directing boat forward through corona virus crisis
iStock / Getty Images Plus
School & District Management Opinion The Year of Scourges: How I Survived Illness and Racism to Find My 'Tribe'
A Black school leader reflects on the hardest year of her professional life.
Reba Y. Hodge
4 min read
new growth on a bare tree
Vanessa Solis/Education Week & Getty Images
School & District Management From Our Research Center How the Pandemic Is Shaping K-12 Education (in Charts)
Surveys by the EdWeek Research Center show how schools have changed during the pandemic and what adjustments are likely to stick.
Eric DiVito gives breathing instructions as he teaches a remote music class at the Osborn School on Oct. 6, 2020, in Rye, N.Y.
Eric DiVito gives breathing instructions as he teaches a remote music class at the Osborn School in Rye, N.Y., last fall.
Mary Altaffer/AP
School & District Management Opinion Ed. Leaders: Discuss Race, Call Out White Supremacy
Downplaying the realities of racism leads to misunderstanding school problems and developing inadequate solutions.
John B. Diamond & Jennifer Cheatham
5 min read
Hand writing the word racism on blackboard. Stop hate. Against prejudice and violence. Lecture about discrimination in school.
Tero Vesalainen/iStock/Getty