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

2. Limits on the Grant of Authority

The U.S. Supreme Court has enumerated the boundaries of Congress' ability to spend, and these boundaries form the criteria that must be met in order for the federal legislature to utilize its conditional power under the Spending Clause in a manner consistent with the federal structure of government established in the U.S. Constitution.

In South Dakota v. Dole, the U.S. Supreme Court specified five criteria for determining the constitutionality of Congress' use of its spending power.67 First, the federal legislation must be in pursuit of the general welfare.68 second, any conditions on the receipt of federal funds must be unambiguous, so that states may know the consequences of their participation.69 Third, the conditions must be related to the federal interest in national projects or programs.70 Fourth, other constitutional provisions must not prohibit the conditions.71 And fifth, the conditions or circumstances of the financial inducement offered by the federal government cannot be coercive so as to violate the Tenth Amendment.72

Although all of these criteria are relevant to the question of Congress' permissible use of its spending power, the limitations that are most pertinent to an analysis of the constitutional status of NCLB are numbers two and five-whether the conditions are stated unambiguously and not coercively.73 Therefore, this article will focus on these two criteria.

a. Clarity of Conditions

i. Overview of the Law

The NCLB unfunded mandate debate currently unfolding in the courts centers on the second requirement that federal program conditions cannot be ambiguous to be binding on the states. When Congress enacts legislation under its spending power and invites states to participate in the resulting program, it has the power to set the terms under which federal funds will be distributed to the states.74 The relationship that is established between the federal government and the states is in the nature of a contract where the states agree to comply with the requirements of the legislation in exchange for federal monies.75 Thus, the legitimacy of Congress' use of its conditional spending power is dependent upon states voluntarily and knowingly accepting the terms of the "contract."76

To determine the responsibilities states and local school districts must fulfill under conditional spending statutes, the courts routinely examine the text of the statute,77 its purpose,78 its legislative history,79 and/or the cases interpreting it.80 These sources are considered from the perspective of the state official who is making the determination of whether to accept the federal funds offered in exchange for the statutory obligations.81 In order for the obligations to be binding on the states, Congress must speak "with a clear voice" in identifying them, so that states are cognizant of the consequences of their participation.82 If the requirements are clear, then a state is bound by the statute's terms under the "contract theory" because the state knowingly assumed the responsibilities under the law.83 States cannot be bound by conditions that they are unable to ascertain.84