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NCLB Outrages

The real No Child Left Behind scam

Ohanian Comment: I like exposing the Feds as weasels but the "full funding" issue worries me.

By Jac Wilder VerSteeg, Deputy Editor of the Editorial Page

Some people think that the feds can't be trusted on education because they haven't provided enough money to pay for the mandates in the No Child Left Behind law. And, granted, being cheap contributes to doubt about the federal commitment to education.

But there's an even bigger reason to doubt the feds' sincerity. Their main argument isn't that they are providing enough money. Their argument is that they don't have to provide enough money. Considering the language of the law and statements by a couple of federal education bigwigs, which will be discussed in more detail below, that's a pretty cynical argument.

Back in 2005, a teachers union and school districts in Michigan, Texas and Vermont sued the federal government over the No Child Left Behind law, which President Bush signed into law six years ago.

The plaintiffs' argument was that since the federal government had failed to pay all the expenses associated with NCLB, states did not have to comply with the law. The plaintiffs based this claim on a provision in the NCLB law itself. That provision is known as the Unfunded Mandates Provision, which as noted in a court ruling that, coincidentally, was issued this week, "provides that '[n]othing in this act shall be construedto ... mandate a state or any subdivision thereof to spend any funds or incur any costs not paid for under this act.''"

That sounds pretty straightforward doesn't it? If the feds require states to spend money to comply with NCLB, then the feds have to provide the money to comply.

There is no doubt that the NCLB imposes a lot of costs on a state. Students in grades three through eight have to be tested every year for proficiency in math and reading. Students also have to be tested in those subjects at least once in high school.

Beyond that, states are required to provide high-quality teachers and implement programs that will have every child reading and calculating on grade level by 2014. Moreover, when schools don't make adequate yearly progress toward that goal, they can face all kinds of expensive consequences, from providing tutors to transporting students to a better school nearby to replacing all the teachers in the failing school to turning the whole operation over to a charter school or even the state department of education.

Expensive, right? But not to worry. Any high school student who could read well enough to pass a standardized test could tell from reading the law that the feds would have to bear the burden. To repeat, "nothing in this act" shall require a state or school district "to spend any funds or incur any costs not paid for under this act."

The plaintiffs then submitted to the court evidence that "for the five years from fiscal year 2002 to fiscal year 2006, Congress appropriated $30.8''billion less for ... grants to school districts than it authorized in NCLB."

In other words, the feds were requiring states to subsidize NCLB to the tune of $30.8 billion.

Instead of arguing about the evidence - for example, by providing a different accounting that showed the feds were keeping their promise to pay for NCLB - the Bush administration's Department of Education argued that the law did not actually require the feds to pay the costs of NCLB.

They made that argument even though liberal lawmakers such as cosponsor Sen. Edward Kennedy, D-Mass., backed the NCLB law because the feds promised to pay. They made that argument even though then-Education Secretary Rod Paige had said in 2003: "If it's not funded, it's not required. There is language in the bill that prohibits requiring anything that is not paid for."

Current Education Secretary Margaret Spellings claims those were just "stray comments." What the law really means, she and education department lawyers said, is that no federal official could require the states to pay for anything not authorized by the act.

A lower court actually dismissed the lawsuit in 2005. But, this week, the U.S. Appeals Court for the Sixth Circuit reinstated the lawsuit.

The reargument won't be a slam dunk. The appeals court didn't provide a binding interpretation.

No matter what, though, the feds clearly are trying to get out of any requirement that they pay for the law. In my book, that doesn't make them education advocates. It makes them weasels

— Jac Wilder VerSteeg
Palm Beach Post


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