NO CHILD LEFT BEHIND - districts claim they are not liable for cost of complying

[Guest guest]

NO CHILD LEFT BEHIND

The U.S. Court of Appeals for the Sixth Circuit (KY, MI, OH, TN) has ruled

that a group of school districts from several states, the National Education

Association (NEA), and ten NEA-affiliate education associations have stated

a valid legal claim that they are not liable for the costs of complying with

mandates under the No Child Left Behind Act (NCLB) in excess of the federal

funding provided. Because of the act's " Unfunded Mandates Provision " (UMA),

at 20 U.S.C. § 7907(a), the court held that states did not have the clear

notice of their liabilities under NCLB that is required by the Spending

Clause of the U.S. Constitution. The provision reads: " 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. " The ruling reverses a

U.S. district court's dismissal of the suit and remands the case to that

court for further proceedings. The lower court accepted the federal

government's interpretation of § 7907(a) as merely prohibiting a federal

officer and employee, not Congress, from imposing unfunded mandates.

On appeal, the Sixth Circuit first found that the school districts had

legal standing to bring suit because their need to spend state and local

funds on NCLB compliance can was an " injury in fact " that can be redressed

by a favorable decision. The court then rejected the district court's

conclusion that § 7907(a) merely prevents " rogue officers " from imposing

requirements not authorized by NCLB. First, even if Congress intended this

meaning, the interpretation would not comply with the Spending Clause

because it falls " short of being so evident that a State would clearly

understand it to be the interpretation Congress intended. " Second, § 7907(a)

is reasonably read merely to prohibit federal officers from " controlling

school curriculum and allocation of local funds, " but may say " nothing about

these officers mandating States to spend funds or incur costs for

unauthorized obligations. " Third, if Congress truly were " concerned about

this sort of ultra vires conduct by federal officers and employees, it could

have said so expressly. "

Turning to ED's argument that the final clause of § 7907(a) simply

emphasizes that state participation is voluntary, the court found it

unsupported by the provisions plain language. Moreover, the court found the

use of the exact language of § 7907(a) in the Perkins Vocational Education

Act, 20 U.S.C. §§ 2301–2471 (1988), which unlike NCLB then specifies some

exceptions for which states must pay, was inconsistent with ED's

interpretation. The court also rejected ED's reliance on the definition of

the word " mandate " in the Unfunded Mandate Act, which excludes costs

entailed in complying with voluntary programs. The court noted that " (1)

NCLB makes no reference to the UMA's definition of ‘mandate,' which excludes

voluntary participation in federal programs, and (2) the label ‘mandate' is

often applied to obligations that states assume voluntarily in order to

qualify for federal funds. " As for NCLB's legislative history, the court

found it at best unclear in regard to § 7907(a), " and to the extent it

supports either party, it bolsters Plaintiffs' interpretation. " Finally, the

court noted that former ED Secretary Rod Paige's interpretation of §

7907(a), that " if it's not funded, it's not required, " is at odds with the

current secretary's interpretation, which the court found demonstrates that

" NCLB does not provide clear notice that their interpretation (and,

apparently, the former Secretary's) is somehow misplaced. "

School Dist. <http://www.ca6.uscourts.gov/opinions.pdf/08a0006p-06.pdf> of

the City of Pontiac v. Spellings, No. 05-2708 (6th Cir. Jan. 7, 2008)

[Editor's Note: The decision prompted a hard-hitting dissent also worth

reading. A summary of the district court opinion in the case is below. The

Sixth Circuit relied for its Spending Clause analysis in part on the U.S.

Supreme Court's ruling in a 2006 case, also summarized below, that Congress

could have, but did not, specify that school districts must pay for experts

used by plaintiff parents who prevail in a special education dispute. For

more on the NCLB decision, the sixth anniversary of NCLB's enactment, and

the latest on the prospects for the act's reauthorization, see the BoardBuzz

blog postings. The Hartford Courant reports that Connecticut Attorney

General Blumenthal " lauded the ruling Monday and said he plans to

ask the U.S. District Court to rule on the merits of a similar lawsuit the

State of Connecticut filed. " In a ruling in that case summarized at the last

link below, a U.S. district court dismissed three out of four counts, but

Mr. Blumenthal says " he will ask the court to rule on the case's merits or

allow it to go to the appeals court. " ]

NSBA School Law <http://www.nsba.org/site/view.asp?CID=1047 & DID=37409>

pages on School Dist. of the City of Pontiac v. Spellings

NSBA School Law <http://www.nsba.org/site/view.asp?CID=441 & DID=38694> pages

on Arlington Cent. Sch. Dist. Bd. of Educ. v.

BoardBuzz on court <http://boardbuzz.nsba.org/archives/025324.php> decision

BoardBuzz on NCLB at six <http://boardbuzz.nsba.org/archives/025322.php>

years

Hartford

<http://www.courant.com/news/local/hc-ctnochild0108.artjan08,0,3870237.story

> Courant By staff and wire services

NSBA School <http://www.nsba.org/site/view.asp?CID=1047 & DID=39323> Law

pages on Connecticut v. Spellings

Amy A. Sosa

amy.sosa@...

Coppell, Texas

Home/Office -

Fax -

Cell -