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

The dispute between the parties focuses primarily on the language of NCLB's so-called unfunded mandate provision. It reads, in pertinent part, as follows:

[n]othing 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 chapter.104

The plaintiffs in both of the NCLB unfunded mandates lawsuits have argued that this language clearly says the federal government cannot require the states to "incur any costs" or spend any "funds" not paid for by the federal government pursuant to the Act or to "mandate, allocate or control" state and local funding.105 The plaintiffs argue that on its face, § 7907(a) applies to all actions a state or locality might have to undertake to comply with NCLB. Therefore, the federal government must pay the entire additional costs imposed on states by NCLB. Because overall federal NCLB funding is insufficient to meet all of its requirements,106 states are forced to pay part of the costs of compliance out of their own money. As a consequence, the federal government is violating the plain language of the statute,107 the Spending Clause,108 and the Tenth Amendment.109

In addition to the plain language of the unfunded mandates provision, the section's legislative history and the overall structure of NCLB reveal that Congress was strongly committed to avoiding the imposition of unfunded federal mandates on states. Although legislators did not specifically comment on the inclusion of § 7907(a) in NCLB, this provision was present in three prior acts: Goals 2000: Educate America Act,110 the School-to-Work Opportunities Act,111 and the prior version of ESEA, the Improving America's Schools Act.112 The legislative commentary about the unfunded mandate sections in these Acts makes it clear that legislators did not intend to require states to do things that were not paid for under these laws. Similarly, the overall structure of the law supports this reading. The purpose of NCLB was to increase resources for education, not decrease them. Thus, § 7907(a) covers additional expenditures imposed by the law, and provisions such as § 6321(b)(l) that require states and localities to maintain their financial effort for education113 and § 6311(b)(3)(D) that require a minimum threshold for federal funding for states to be responsible to implement the assessment portion of NCLB114 do not alter the unfunded mandate aspect of the law. Connecticut's decision to accept NCLB funds was informed by a view of the statute as a whole. While annual testing in all grades was a general expectation, under no circumstances would a state be required to spend any additional state resources to comply with the law and states would have the right to seek waivers from any of NCLB's requirements.