School & District Management

NEA Eyes Congress as High Court Refuses NCLB Case

By Alyson Klein — June 09, 2010 4 min read
  • Save to favorites
  • Print

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

Student Well-Being & Movement K-12 Essentials Forum How Schools Are Teaching Students Life Skills
Join this free virtual event to explore creative ways schools have found to seamlessly integrate teaching life skills into the school day.
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
Special Education Webinar
Bridging the Math Gap: What’s New in Dyscalculia Identification, Instruction & State Action
Discover the latest dyscalculia research insights, state-level policy trends, and classroom strategies to make math more accessible for all.
Content provided by TouchMath
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
School & District Management Webinar
Too Many Initiatives, Not Enough Alignment: A Change Management Playbook for Leaders
Learn how leadership teams can increase alignment and evaluate every program, practice, and purchase against a clear strategic plan.
Content provided by Otus

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 On Capitol Hill, Relieved Principals Press for Even More Federal Support
With the fiscal 2026 budget maintaining level K-12 funding, principals look to the future.
7 min read
In this image provided by NAESP, elementary school principals gathered on Capitol Hill recently to meet with their state's congressional delegations in Washington
Elementary school principals gathered on Capitol Hill on Feb. 11, 2026,<ins data-user-label="Madeline Will" data-time="02/12/2026 11:53:27 AM" data-user-id="00000175-2522-d295-a175-a7366b840000" data-target-id=""> </ins>to meet with their state's congressional delegations in Washington. They advocated for lawmakers to protect federal K-12 investments.
John Simms/NAESP
School & District Management Q&A Solving Chronic Absenteeism Isn't 'One-Size-Fits-All,' This Leader Says
Proactive, sensitive communication with families can make a big difference.
7 min read
Superintendent Mary Catherine Reljac walks around the exhibition hall of the National Conference on Education in Nashville, on Feb. 12, 2026. Reljac is the superintendent for Fox Chapel Area School District in Pennsylvania.
Mary Catherine Reljac walks around the exhibition hall of the National Conference on Education in Nashville on Feb. 12, 2026. Reljac, the superintendent for Fox Chapel Area school district in Pennsylvania, is working to combat chronic absenteeism through data analysis and tailored student support.
Kaylee Domzalski/Education Week
School & District Management Opinion The News Headlines Are Draining Educators. 5 Things That Can Help
School leaders can take concrete steps to manage the impact of the political upheaval.
5 min read
Screen Shot 2026 02 01 at 8.23.47 AM
Canva
School & District Management Q&A When Should a School District Speak Out on Thorny Issues? One Leader's Approach
A superintendent created a matrix for his district to prevent rash decisions.
5 min read
Matthew Montgomery, the superintendent of Lake Forest schools in Ill., during the AASA conference in Nashville on Feb. 11, 2026.
Matthew Montgomery, the superintendent of Lake Forest schools in Illinois, is pictured at the AASA's 2026 National Conference on Education in Nashville, Tenn., on Feb. 11, 2026. The Lake Forest schools established a decisionmaking matrix that informs when the district speaks out on potentially thorny topics.
Kaylee Domzalski/Education Week