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NCLB Outrages

Courtside: Unfunded Mandate?

Ohanian Comment: Is the Sixth Circuit Court of Appeals January ruling a "bolt of legal lightning" igniting resistance to NCLB or isn't it? The situation for teachers and parents seems to be :Don't rely on the courts to solve your problems. Instead, take to the streets. Now is the time for revolution against NCLB. They are your kids being abused by corporate scripts. It is your profession that's swirling down the sewer.

by Perry A. Zirkel

ON 8 January 2002, President Bush
signed into law the No Child Left Behind
(NCLB) Act. Including various
federal grant programs headed by Title
I, NCLB allows states not to participate
if they forgo the significant funds available
under the Act.

Early in 2005, eight school districts
from various states, including Pontiac School District
in Michigan; a Vermont intermediate unit that contains
11 school districts; and the National Education Association
along with 10 state and local NEA affiliates
filed suit against Margaret Spellings, the secretary of the
U.S. Department of Education, in federal district
court in Michigan. Their alternative claims were that
1) the Act does not require states and districts to comply
with NCLB’s educational requirements if doing so
would necessitate the expenditure of extra local funds
to cover the additional costs of compliance and 2) the
Act is ambiguous regarding whether districts are required
to spend their own funds, thus violating the
Constitution’s spending clause. The plaintiffs alleged
that in the years following the enactment of NCLB,
Congress had not provided states and districts with
sufficient federal funds to comply fully with the law.

In seeking a declaratory judgment that states and
districts are not required to spend non-NCLB funds
to comply with NCLB mandates and an injunction prohibiting
the secretary of education from withholding
any federal funds under NCLB due to noncompliance,
the plaintiffs relied on the so-called unfunded mandate
provision of NCLB, which states: “Nothing in this Act
shall be construed to authorize an officer or employee
of the Federal Government to mandate, direct, or control
a State, local educational agency, or school’s curriculum,
program of instruction, or allocation of State
or local resources, or mandate a State or any subdivision
thereof to spend any funds or incur any costs not
paid for under the Act.”

On 23 November 2005, the federal district court
granted the secretary’s motion to dismiss, concluding
that the words “an officer or employee of ” showed
that Congress intended this prohibition to apply only
to said individuals, not to the administering agency
— the U.S. Department of Education. The plaintiffs
promptly sought review by the Sixth Circuit Court of

On 7 January 2008, a panel of three members of
the Sixth Circuit, in a 2-to-1 decision, reversed the
lower court’s dismissal.1 First, the majority addressed
the threshold issue of standing, which requires a plaintiff
to show that it has suffered an injury in fact that
is 1) particularized and not hypothetical, 2) fairly traceable
to the challenged action, and 3) likely to be redressed
by a favorable decision. The majority concluded
that the school districts met these three essential elements
because they must spend state and local funds to
pay for NCLB compliance. Thus, finding that one or
more plaintiffs met the requirements, the court ducked
deciding whether the NEA and its affiliates had standing
in this case.

Next, the majority addressed the merits of the case,
concluding that the plaintiffs had stated a triable claim
that they were not liable for the additional costs of complying
with the NCLB requirements. The majority
based its conclusion on the clear-notice requirement
that the Supreme Court had established for congressional
enactments under the spending clause — specifically
that when Congress attaches conditions to a
state’s acceptance of federal funds, these conditions
must be set forth unambiguously so that the state can
make an informed choice.

The defendant secretary of the U.S. Department of
Education proffered two interpretations of the text of
the so-called unfunded mandate provision. The first,
which the lower court adopted, is that this section merely
prevents officers and employees of the federal government
from imposing additional, unauthorized requirements
on the participating states. The second is
that said provision simply emphasizes that a state’s participation
in NCLB is entirely voluntary but that once
a state chooses to participate, it must fully comply with
NCLB requirements regardless of the extent of federal

In response, the court concluded that neither of these
interpretations was clearly evident in the text of the
disputed provision. One of the problems with the first
interpretation, which is that Congress merely aimed
the provision at rogue federal officers or employees, is
that the language “officer or employee” could be reasonably
read either as referring to the final clause,
which concerns additional costs, or as modifying only the middle
clause, which concerns curriculum control. The
problems with the second interpretation stem from the
ambiguous meaning of “mandate” in the context of
the disputed provision. Although relying on the text
of the provision, the majority noted that the legislative
history of the Act is at best unclear and, to the extent
that it supports either party, it bolsters the plaintiffs’ contention.

The majority also noted that the former secretary
of education, Rod Paige, supported the plaintiffs’

In concluding that the secretary’s interpretations violate
the clear-notice requirement of the spending clause,
the majority clarified its acceptance of the plaintiffs’
claim that their obligation to incur additional costs for
compliance was not evident, as distinguished from the
Act’s clear notice that the states and school districts
participating in NCLB must fulfill the Act’s various
educational and accountability requirements, such as
submitting plans to the secretary and effectively tracking
student achievement.

In remanding the case back to the trial court for
further proceedings, the majority commented that if
indeed Congress intends for states and districts to be
liable for the additional costs of compliance, “the ball
is properly left in its court to make that clear.”

The dissenting judge forcefully argued that the majority’s
interpretation is contrary to the consistent historical
understanding for centuries that the federal government
has contributed a relatively small amount for
its various education reform enactments. Accusing the
majority of ducking the plaintiffs’ principal argument
by “creating ambiguity where none exists,” the dissent
first focused on the Act as a whole, advancing several
reasons for its conclusion that said plaintiffs’ claim was
disingenuous. For example, the dissent asserted: “It
simply defies common sense to suggest that Congress
intended to relieve States and school districts from compliance
when the cost of compliance — which Congress
does not control — exceeds appropriations, but
not when the amounts appropriated — over which
Congress has total control — fall below the amounts
school districts are eligible to receive.”

Next, addressing the basis for the majority’s decision,
the dissent countered that “any reasonable State
official, reading . . . NCLB with a clear eye, would understand
that there was no guarantee that federal funds
would match all of the costs controlled and incurred by
States and local school districts.” Specifically, the dissent
relied on 1) the Unfunded Mandates Reform Act
of 1995, which provides a definition of “mandate”; 2)
the Perkins Vocational Education Act, which has a
parallel provision but distinguishable statutory scheme;
and 3) the context of NCLB as a whole, which makes
clear that its various requirements apply beyond the
schools that receive its funds. As for the majority’s additional
rationale, the dissent concluded, “assuming
arguendo that . . . NCLB’s legislative history is even
relevant in this case, it lends little or no support to
Plaintiffs’ argument.”

THE result of the decision by the Sixth Circuit
panel is fluid at this point, for several
reasons. First, the effect of the decision is
not crystal clear. Reversing a dismissal typically
means merely preserving the issue for
trial, but in this case the facts are beyond dispute that
Congress has not provided close to the funding for
compliance with the Act, and the appellate panel has
effectively decided the issue of the ambiguity of the
unfunded-mandates provision as a matter of law. Nevertheless,
the district court on remand would at least
have to decide whether to grant the requested injunctive
relief barring the secretary from withholding federal
funds for noncompliance.

Second, the secretary of education has already filed
a request for a hearing by the entire membership of
the Sixth Circuit, thus putting the matter in abeyance
until the Sixth Circuit either denies the motion or
proceeds to review the matter en banc.2

Third, even though the NEA’s legal counsel, Robert
Chanin, who was the chief architect of the suit, expressed
the view that the panel’s decision provides persuasive
legal grounds for districts beyond the Sixth
Circuit to refuse to use their own funds to pay for
NCLB obligations not covered by their allocation of
federal aid, most districts are taking a wait-and-see approach.3
One contributing factor may be Secretary
Spellings’ stern letter to all chief state school officers,
alluding to Chanin’s comments and warning: “No state
or school district should regard the ruling as a license
to disregard NCLB’s requirements.”4

Fourth, this decision represents a marked departure
from the trend of previous litigation under NCLB —
including the lower court’s decision in this case—
that ended various suits at the dismissal stage.5 Connecticut
Attorney General Richard Blumenthal, who
lost one of these previous lower court cases and who
plans to appeal it based on the panel’s ruling, characterized
its decision as “a bolt of legal lightning igniting
a new powerful momentum to our No Child Left Behind
case and congressional reform.”6 Yet, although it
cited the Sixth Circuit’s decision, the Seventh Circuit
has since affirmed the dismissal of a suit by two Illinois
districts based on the purported conflict between
NCLB and the Individuals with Disabilities Education
Act (IDEA).7 Moreover, although the NEA and
the National School Boards Association (NSBA) are
lobbying for dramatic increases in NCLB Title I funding
before the current Congress, the many forces seeking
modification or elimination of NCLB have largely
created a stalemate with regard to the future of the
Act, pending the next Presidential elections.8

Thus NSBA spokesperson Marc Egan’s diagnosis
seems to be on the mark: “There’s no firm resolution
legally coming down the pike anytime soon.” In the
meantime, while we await the Sixth Circuit’s discretionary
determination as to whether to reconsider the
panel’s decision, a few other quick clarifications warrant

First, the panel’s decision did not validate the plaintiffs’
primary claim; rather, the majority based its decision
on the perceived ambiguities in the unfundedmandate
provision. Although this provision is obscured
by its legal gobbledygook, the clear-notice requirement
would appear to apply to the Act as a whole, not to this
one provision in isolation. In any event, one option for
resolution would be for Congress to either clarify or
eliminate this provision.

Second, the inevitable question of whether IDEA
is similarly vulnerable because of its far-from-full funding
is easily answerable; unlike NCLB and some other
statutes originating in 1994-95,9 IDEA does not contain
the unfunded-mandate language.10 Finally, it is
not at all clear what the majority meant by its dictum
that NCLB provides clear notice that participating
states and schools districts must fulfill the Act’s various
educational and accountability requirements. In
any event, if anything is clear, this new decision is not
the end of a nationally significant story.


1. Sch. Dist. of City of Pontiac v. Sec’y of the U.S. Dep’t of Educ., 512 F.3d 252
(6th Cir. 2008). Due to their heavy caseload, the federal appellate courts
customarily use three-judge panels for their decisions. The Sixth Circuit
covers Kentucky, Michigan, Ohio, and Tennessee.
2. Mark Walsh, “Spellings Asks 6th Circuit to Reconsider NCLB Ruling,”
Education Week, 13 February 2008, p. 26.
3. Mark Walsh, “Court Ruling in NCLB Suit Fuels Fight Over Costs,”
Education Week, 16 January 2008, pp. 1, 19.
4. David Hoff and Mark Walsh, “Sparring on NCLB Legal Ruling
Continues,” Education Week, 30 January 2008, p. 19.
5. See, for example, Connecticut v. Spellings, 453 F. Supp. 2d 459 (D.
Conn. 2006) (dismissed pre-enforcement challenge for lack of subjectmatter
jurisdiction); Alliance for Children, Inc. v. City of Detroit Pub.Sch., 475 F. Supp. 2d 655 (E.D. Mich. 2007); Fresh Start Acad. v. Toledo
Bd. of Educ., 363 F. Supp. 2d 910 (N.D. Ohio 2005) (dismissed tutor)

n PERRY A. ZIRKEL is University Professor of Education and Law,
Lehigh University, Bethlehem, Pa.

— Perry A. Zirkel
Phi Delta Kappan


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