Ruling: NCLB an unfunded mandate

A federal court has ruled that mandates under the federal No Child Left Behind Act are, indeed, unfunded mandates and therefore in violation of the law.

The U.S. Court of Appeals for the Sixth Circuit ruled Jan. 7 that the law’s mandates violate the “Unfunded Mandates Provision.” The provision states that “Nothing in this Act shall be construed to…mandate a State or any subdivision thereof to spend any funds or incur any costs not paid for under this Act.”

ACSA’s NCLB Task Force Chair Steve Betando said the ruling is good news for California schools and districts, and confirms what ACSA has been saying for years: that the federal law needs to be fully funded.

“I believe that educational leaders are encouraged by this ruling,” he said. “The money may be recoverable. Because the act was signed but not fully funded, administrators have been diverting funds from other programs for NCLB.”

In fact, Congress has failed to fully fund NCLB for five years, from 2002-06, appropriating $30.8 billion less than is authorized by NCLB. What this means is that school districts are picking up the difference, and that $30.8 billion is coming out of their own pockets. In light of the ruling, school districts must now try to figure out exactly how much of this was theirs.

“We need to evaluate in our own districts, and in the state, the costs that were involved in this and put in a claim,” Betando said.

Because NCLB – or the Elementary and Secondary Education Act – was not reauthorized before the deadline late last year, the ruling gives education groups such as ACSA leverage in advocating for full funding next Congressional session.

“This ruling is consistent with the recommendations of ACSA and the Task Force and clearly communicates to our lawmakers that NCLB needs to be fully funded,” Betando said. “It supports the arguments we’ve been making since 2002, and sends a clear message to Congress and the secretary of education.”

The ruling comes from a case brought against the secretary of the U.S. Department of Education by a Michigan school district and others in November of 2006, appealing an earlier ruling by a lower court.

In the earlier ruling, the district court dismissed the complaint for failure to state a claim upon which relief can be granted. The district court focused on the clause stating, “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 this Act.”

The court concluded that by including the words “an officer or employee of,” Congress clearly meant to prohibit federal officers and employees from imposing additional, unfunded requirements, beyond those provided for in the statute.

Other plaintiff-appellants in the case include school districts in Michigan, Vermont and Texas, the National Education Association and NEA-affiliates in Connecticut, Illinois, Michigan, Ohio, Indiana, Texas, New Hampshire and Vermont.

The plaintiffs alleged that NCLB does not require school districts to comply with NCLB educational requirements if doing so would require the expenditure of state and local funds to cover the additional costs of compliance. Their position is simply that the secretary of education may not require states and school districts to take actions mandated by the NCLB that the states and school districts would not undertake absent the NCLB’s mandates, if doing so would require the states or school districts to spend any funds or incur any costs not paid for under NCLB.

The complaint alleged in the alternative that the act is ambiguous regarding whether school districts are required to spend their own funds, and that imposing such a requirement would therefore violate the Spending Clause of the United States Constitution.

The plaintiffs sought a declaratory judgment to the effect that states and school districts are not required to spend non-NCLB funds to comply with the NCLB mandates, and that a failure to comply with the NCLB mandates for this reason does not provide a basis for withholding any federal funds to which they otherwise are entitled under the NCLB.

Plaintiffs also sought an injunction prohibiting the secretary of the U.S. DOE from withholding from states and school districts any federal funds to which they are entitled under NCLB because of a failure to comply with the mandates of NCLB that is attributable to a refusal to spend non-NCLB funds to achieve such compliance.

In the federal court’s reversal of the original case, it opined:

?“Because the statutes enacted under the Spending Clause of the United States Constitution must provide clear notice to the State of their liabilities should they decide to accept federal funding under those statutes, and because we conclude that NCLB fails to provide clear notice as to who bears the additional costs of compliance we REVERSE the judgment of the district court and REMAND this case for further proceedings consistent with this opinion.”

The Court of Appeals concluded that NCLB fails to provide clear notice of states’ obligations to incur additional costs to comply with its mandates, as required by the Spending Clause. Further, the court ruled: “The No Child Left Behind Act rests on the most laudable of goals: to ‘ensure that all children have a fair, equal, and significant opportunity to obtain a high-quality education.’ Nobody challenges that aim. But a state official deciding to participate in NCLB could reasonably read (that) to mean that her State need not comply with requirements that are ‘not paid for under the Act’ through federal funds.

“Thus, Congress has not ‘spoke(n) so clearly that we can fairly say that the State(s) could make an informed choice’ to participate in the Act with the knowledge that they would have to comply with the Act’s requirements regardless of federal funding.”

This is a significant ruling and ACSA and other education groups will need to wait and see how California and other states respond. The plaintiffs cited that Congress has failed for five years, from 2002-06, to fully fund NCLB, appropriating $30.8 billion less than is authorized by NCLB.

In addition, the plaintiffs argued that “…school districts have had and will have to spend a substantial amount of non-NCLB funds to comply with those mandates, diverting those funds from other important education programs and priorities, such as programs for the gifted and talented, courses in foreign languages, art, music, computers and other non-NCLB subjects…”

ACSA recommends an immediate assessment of an estimate of costs incurred in California beyond the current Title 1, Title 2 and Title 3 appropriations and further recommends state officials communicate with the U.S. DOE regarding the impact of the federal ruling. ACSA recommends that additional mandates that could be imposed by actions of the State Board regarding LEA corrective action be considered as to whether additional unfunded mandates would be imposed on LEAs.

However, an SBE hearing scheduled for Jan. 11 concerning LEAs in Corrective Action was canceled, while Gov. Schwarzenegger unveiled a plan of his own during his State of the State address.

To view the opinion in its entirety, visit

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