The future of the biggest legal challenge to the No Child Left Behind Act is now in the hands of the federal appeals court based here.
The question before the full U.S. Court of Appeals for the 6th Circuit revolves around whether a group of school districts backed by the National Education Association has a case in challenging the federal education law as an unfunded mandate.
“States and school districts are prisoners of this law,” Robert H. Chanin, the general counsel of the NEA, told the court during oral arguements on Dec. 10.
“There are obligations that are placed on them by the No Child Left Behind Act, but the money is not enough to implement those requirements,” said Mr. Chanin, who represents the Pontiac, Mich., school district and eight other districts in Michigan, Texas, and Vermont in their challenge to the law.
Alisa B. Klein, a U.S. Department of Justice lawyer from Washington representing Secretary of Education Margaret Spellings, told the court that the federal government “doesn’t impose mandates one way or another on how a state spends its money” under the law.
She said the school districts’ argument that a provision of the law meant states and districts were not required to spend their own money to comply with the law’s mandates was untenable.
“No one thought Congress was going to pay the full cost of what the No Child Left Behind Act was meant to do,” she said.
Spending Clause at Issue
The full 6th Circuit court agreed in May to rehear the case of Pontiac School District v. Spellings.
Bush administration lawyers sought the rehearing after a three-judge panel of the 6th Circuit court ruled on Jan. 7 that the states were not on clear notice of their financial obligations when they agreed to accept federal money under the NCLB law.
Central to the case is a provision in the 7-year-old 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.”
Such language was first added to several federal education statutes in 1994, including to that year’s reauthorization of the Elementary and Secondary Education Act, of which the NCLB law is the latest version.
The teachers’ union’s case against the law was bolstered by a 2006 U.S. Supreme Court decision. In Arlington Central School District v. Murphy, a case dealing with a legal-fees issue under the Individuals with Disabilities Education Act, the high court reiterated in strong terms a doctrine that in spending-clause legislation, Congress must clearly express its intent to impose conditions on the grant of federal aid so the states may knowingly decide whether to accept the money.
Congress enacted the No Child Left Behind law, like the IDEA, under its spending-clause power. The 6th Circuit panel cited the Arlington Central ruling in holding that the NCLB act does not give the states clear notice of their obligations, in large part because the unfunded-mandate language sends the message that states and districts would not have to spend their own money.
But that view did not appear to be getting as much traction before the full 6th Circuit court in the Dec. 10 arguments. Some judges questioned whether the unfunded-mandates provision cited by Mr. Chanin applied to NCLB’s Title I, the main source of funding for disadvantaged students.
‘Linchpin is Ambiguity’
Judge David W. McKeague suggested to Mr. Chanin that a slightly more softly worded provision on mandates in Title I “would seem to suggest Congress anticipated there may well be costs not reimbursed” for districts and states under the law.
Judge Jeffrey S. Sutton suggested to Mr. Chanin at one point that “your linchpin is ambiguity” in the unfunded-mandates provision.
“Ambiguity suggests the agency gets to fill in the gaps,” the judge said, referring to the idea that the federal Education Department’s interpretation would get deference.
But the judges also questioned Ms. Klein about why Congress would have included the unfunded-mandates provision in the manner it did.
She answered that the provision applied to sections of NCLB other than Title I that gave grants to the states.
“It keeps the Department of Education from attaching strings that would cost [states] more funds,” Ms. Klein said of the mandates provision.
Fourteen of the appeals court’s 16 active judges participated in oral arguments here. The other two judges will participate in the outcome of the case after listening to a recording of the oral arguments.
The judges asked several basic questions about the complex law, such as under what circumstances states would take over schools, and whether the federal government was dictating matters such as the frequency of testing.
The judges also noted that while Connecticut has filed a lawsuit against the federal government over the NCLB law, raising some of the same arguments, no state in the 6th Circuit had joined the school districts’ suit. Those states are Kentucky, Michigan, Ohio, and Tennessee.
A version of this article appeared in the January 07, 2009 edition of Education Week as Federal Appeals Court Weighs Union’s Suit Over NCLB