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NCLB Outrages

Decision of En Banc Court in School District of the City of Pontiac v. Secretary of the U.S. Department of Education

by Robert Chanin, NEA General Counsel

Today, the en banc U.S. Court of Appeals for the Sixth Circuit issued its opinions and order in School District of Pontiac v. Secretary, U.S. Department of Education, the challenge by NEA and other plaintiffs to the "unfunded mandates" in the No Child Left Behind Act (“NCLB”)—i.e., the Secretary of Education’s interpretation of NCLB as requiring states and school districts to use their own funds to comply with federal NCLB mandates when federal funding is insufficient to pay for those mandates.

Sixteen judges participated in the proceedings, and they divided eight-to-eight on the ultimate question of whether the trial court's dismissal of the case should be affirmed or reversed. The rules concerning the effect of an evenly divided court require affirmance of the trial court—which means we lost. That said, seven judges agreed with plaintiffs on the merits, while only five agreed with the Secretary’s merits position. The opinions of the sixteen judges break down as follows.

Eight of the sixteen judges voted to reverse the trial court's dismissal of the case:

Seven judges joined an opinion agreeing with NEA and the other plaintiffs on the threshold issues and on the merits. More specifically, those seven judges concluded that (1) the case is justiciable, meaning that at least some plaintiffs have standing and the case is suitable for resolution by the court, and (2) the Secretary’s interpretation of NCLB violates the Spending Clause of the United States Constitution. One judge voted to reverse the trial court's dismissal of the case on a different ground—i.e., that it was too early in the litigation for the court to provide an ultimate answer to the statutory and constitutional issues raised by the lawsuit, and that the case should be sent back to the trial court for further proceedings.

The remaining eight judges voted to affirm the trial court's dismissal of the case:

Five of those judges agreed that the case is justiciable, but concluded that plaintiffs' case fails on the merits. Stated otherwise, these five judges concluded that the case is fit for judicial resolution and that the Secretary’s interpretation of the NCLB did not violate the Spending Clause of the U.S. Constitution. The other three judges concluded that the case is not justiciable. Those judges joined an opinion concluding that plaintiffs had failed to exhaust necessary administrative remedies and that the case could not be decided in the absence of participation by the affected states (although one of those three also concluded that plaintiffs were wrong on the merits).

There are four separate opinions, covering 93 pages. We will analyze the opinions further over the weekend and send you a more detailed memorandum as soon as possible. This memorandum will, among other things, discuss the options that are available to plaintiffs.

— Robert Chanin


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