No Child Left Behind Act: Is it an Unfunded Mandate or a Promotion of Federal Educational Ideals?, The

Journal of Law and Education, Apr 2008 by Umpstead, Regina R

I. INTRODUCTION: FEDERALISM AND AMERICAN EDUCATIONAL POLICY

Since its inception, the No Child Left Behind Act of 2001 (NCLB)1 has generated substantial controversy over the expanding role of the federal government in public K-12 education. The NCLB, a revision of the 1965 Elementary and Secondary Education Act, calls for states and localities to hire highly qualified teachers, develop and implement challenging academic standards, set achievement targets for students, administer assessments to measure student progress, report data on all students, and face consequences if these requirements are not satisfied. Schools across the country are diligently working to meet these goals. NCLB, with its pervasive reach, has become a lightening rod in education policy forums regarding the federal government's ability to require local and state education reforms, particularly in light of the small share of overall national education funding that actually comes from federal sources.

The National Education Association, along with several local associations and school districts, brought this debate to the federal court system in 2005 in School District of Pontiac v. Spellings.2 In 2006, the State of Connecticut filed Connecticut v. Spellings, making similar allegations.3 These lawsuits argue that the federal government, represented by the Secretary of Education, is overstepping its authority in its regulation of state and local education practices under NCLB by requiring compliance with the law's provisions even if federal funding is not sufficient to cover all of these expenses. In short, the plaintiffs are arguing that NCLB is an unfunded or underfunded mandate.

The Sixth Circuit Court of Appeals' 2008 decision in the Pontiac case affirmed the plaintiffs' position that the language of the NCLB, in light of § 7907(a) of the law, did not clearly alert states to their responsibility to pay for the additional costs of compliance not covered by federal dollars provided under the Act, and that, therefore, NCLB violated the Spending Clause's clear statement requirement. The court's majority found that a state official could plausibly interpret NCLB as not requiring states and localities to pay for those costs not covered by federal funding. This decision overturned the federal district court's 2005 decision that states and local districts were bound by NCLB's requirements under current funding levels because its requirements were clear and the funding language in § 7907 (a) was only intended to prevent federal officers and employees from imposing additional unfunded obligations on the states and localities beyond those provided for in the statute.

This article addresses the NCLB unfunded mandate debate. section II explores the expansion of the federal government's policy-making role in and financial support for education over the past sixty years. section III examines Congress' use of its Spending Clause power to enact legislation that affects education. It discusses several court decisions that define the scope and limit of Congress' Spending Clause power, a mechanism that permits Congress to legislate in fields over which it holds no direct authority. It then examines Congress' Spending Clause power within the context of the NCLB by detailing the two lawsuits that allege NCLB constitutes an unfunded mandate that exceeds Congress' conditional spending power. Finally, Section IV concludes that NCLB is a valid exercise of Congress' Spending Clause power rather than an unfunded mandate. Therefore, states are required to fulfill the obligations they assumed under the law at the current funding levels provided by the federal government.

Several legal commentators have weighed in on this debate and have landed on both sides of the issue of the NCLB's constitutionality. While commentators agree that NCLB can be construed to be in support of the general welfare of the nation under the legal test set forth in South Dakota v Dole,4 they disagree about the law's status under the other requirements necessary for NCLB to qualify as a valid conditional spending program.5 Gina Austin, Nicole Lugori, and Professor L. Darnell Weeden have concluded that NCLB is unconstitutional.6 In her analysis, Ms. Austin argues that NCLB exceeds congressional authority under the Spending Clause under four of the five prongs of the Dole test,7 and Professor L. Darnell Weeden agrees with her analysis.8 Ms. Lugori believes a court should declare NCLB unconstitutional under the prong that considers other constitutional conditions, in particular the Equal Protection Clause. Although, she concedes that a court is not likely to do so because of prior jurisprudence.9

On the other side of the analysis are Professor T.K. Daniels10 and Professor Michael Heise.11 Professor Daniels focuses on the overall Dole test, concluding that courts are likely to find that NCLB is a valid use of Congress' conditional spending power because NCLB provides for the general welfare of the nation by promoting education.12 In concluding that NCLB does not amount to legal coercion, Professor Heise notes the courts' reluctance to embrace Dole's coercion prong except in extreme circumstances. Although, he does argue that NCLB is politically rather than legally coercive.13