EDITORIAL:
A Rekindled NCLB Suit Raises Concerns

A new wrinkle may have been added to the on-going NCLB reauthorization debate this week. The U.S. Court of Appeals for the Sixth Circuit has given new life to a legal challenge made by the National Education Association and school districts from three states who claim that language in the Act specifically exempts states and school districts from needing to spend any funds or incur any compliance costs that are not paid for by federal funds.

Although Congress can require school districts, or other recipients of federal funds, to spend their own money as a condition of receiving even a modest federal grant (as Congress has done with special education funding under the IDEA), the Court held that Congress must clearly put the district on notice that such heavy strings are attached so they can decide whether to accept the funds under these conditions. Providing such notice was something Congress failed to do with NCLB, according to the majority of justices on the appeals court. The case has now been remanded to the trial court for further proceedings, but the Justice Department is considering an appeal to the U.S. Supreme Court.

I’m not sure who to root for in this one. If pressed to a final ruling before the U.S. Supreme Court, there is a danger that the kids will lose whatever the outcome. If the NEA and the school districts win, it may mean that states and localities can substantially reduce the amounts they are spending – or should be spending — to bring schools in need of improvement up to acceptable levels of quality. If the feds ultimately prevail, it may reinforce their current position that they can impose major accountability measures on states and school districts without considering their actual costs, without substantially increasing federal funding, and without even putting the states on notice of what their full funding obligations are.

The best outcome here would be a political solution that forces all concerned finally to focus on the critical cost question that has largely been ignored since NCLB went into effect six years ago. The funding arguments in Washington to date have largely focused on whether the federal government has an obligation to appropriate the full amount of funds authorized by the Act. But nobody claims that even the full authorized amounts written into the Act, which by some calculations would reimburse the states for the added costs of testing and administration required by the Act, would cover the much larger costs of providing highly qualified teachers to all students, building capacity in low performing schools, and providing all students a meaningful educational opportunity.

What is really needed at this point is a basic cost study that would determine for a representative sample of states what the full additional costs of NCLB compliance are. Once we know what the true costs are, the new administration would be able to promote a much-needed debate on what portion of these additional costs should be borne by the states and what portion by the federal government. That debate will add an important dimension of reality and equity to the on-going NCLB reauthorization discussions, and would vastly increase the likelihood that school districts could, and would, comply with NCLB’s goal of eliminating achievement gaps and promoting proficiency at challenging levels for all students.

Prepared by Michael A. Rebell, January 8, 2008