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MIRS, January
8, 2008
A school district does not have to spend state or local money to
comply with a federal "No Child Left Behind" (NCLB) requirement
that isn't completely paid for with federal money, the U.S.
Court of Appeals ruled Monday.
In Pontiac v Secretary of the U.S. Department of Education (No.
05-2708), eight school districts led by the Pontiac School
District, the National Education Association and several other
state teachers unions sued the federal government over what it
claimed was an unfunded mandate.
The school districts and union groups claim Congress has not
given the states and school districts the federal money to
improve year after year in how it teaches the poor to read and
the non-English speakers to learn English. Under NCLB, school
districts also required to make sure its students, as a whole
and in specific student subdivisions, make "adequate yearly
progress" in math, reading and other fields of study.
The groups point to a section in NCLB that reads, "Nothing in
this Act shall be construed to authorize … the federal
government to mandate … a state or any subdivision thereof to
spend any funds or incur any costs not paid for under this act."
They also note that former Secretary of Education Rod PAIGE said
in 2003 that nothing in NCLB "prohibits requiring anything that
is not paid for."
They note that the federal money from NCLB was meant for
specific purposes, not to be used for general operations and
programming so it's not realistic to believe state and local
money used to pay for general operations and programming should
be used for NCLB-mandated programs.
The Court of Appeals agreed in a split decision. Since Congress
enacted NCLB under the "Spending Clause," that any money given
to states for specific purposes be set out "unambiguously." In
this case, the law doesn't specifically make it clear that if a
school district agrees to participate in NCLB that it will be on
the hook to pay for whatever the federal funds doesn't cover in
delivering the mandated programs.
"A state official deciding to participate in NCLB could
reasonably read (the bill) to mean that her state need not
comply with requirements that are 'not paid for under the act'
through federal funds," the court majority ruled. Appellate
judges Guy COLE and Daniel BREEN signed the opinion.
In his dissenting opinion, Judge David McKEAGUE wrote that
school districts had a clear vision of what Congress was
offering them by way of NCLB. The districts could take the extra
federal money and the corresponding extra duties or not take the
money but have fewer duties. It's the way the nation's education
system works, he wrote.
"What I have described is not the Emerald City in the Land of
Oz, bur rather this country's primary and secondary education
system," he wrote. "Many of them could not bring themselves to
pass up the federal funds, but simply hoped that someone or
something would save them at the end of the road. Today the
majority does exactly that."
McKeague wrote that the majority's decision allows state and
local school officials to design education programs required
under NCLB. They decide how federal money is going to be spent
and if one of their education programs is "fully funded" with
federal dollars.
But if they find a student failing in one program, rather than
redoubling their efforts, trying something different, or asking
the state or local citizenry for more funding, they can simply
divert federal money away from the program, declare it "underfunded"
and wipe their hands of the situation without paying back the
federal dollars.
"Viola, problem solved," McKeague wrote. "If not for the
struggling students. This, of course, is exactly the opposite of
what Congress intended to accomplish with NCLB."
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