Michael: Time to Leave NCLB BehindThe Attorney General of Connecticut is considering whether to sue the Federal Government over the constitutionality of No Child Left Behind (NCLB). Our own Attorney General, Terry Goddard, should join the suit, if so.
Last year, the Arizona Legislature nearly decided to withdraw from NCLB, but did not, because the Republican leadership did not want to embarrass the President in an election year. One of the central figures in that fight was Senator (then Representative) Karen Johnson (R-18), who recounts how she was leaned on rather hard to leave NCLB alone. She received calls from the White House and even VP Dick Cheney telling her to back off the issue. Colleagues assured Senator Johnson that many other legislators on both sides of the aisle were behind her on the issue, and would support the issue this year. She introduced SB 1304, this year, which would allow charter schools and public school districts with withdraw from NCLB, but it was killed in committee by Senator Toni Hellon. No Republican leaders would pressure Hellon to step off the bill.
The determination to kill NCLB in Arizona will not go away, though, especially among those on both sides of the aisle who feel that NCLB is a gross violation of federalist principles, an unfunded mandate and poorly implemented, to boot. Senator Johnson says she will introduce a bill next year exempting schools that do not receive federal money, such as charter schools, from the requirements of NCLB. Senator Johnson is also planning to schedule a meeting with Terry Goddard to encourage him to join the Connecticut suit.
The complaints that state officials around the country have against NCLB are summed up by a report of the National Conference of State Legislatures. The report makes several recommendations for improving the law and its acceptance by the states, but it also speculates that the law is not constitutional.
The report contends that the U.S. Constitution does not explicitly define a role for the federal government in K-12 education, thus the constitutionality of the program rests upon the Spending Clause. A 1987 U.S. Supreme Court decision, South Dakota vs. Dole, is leading authority on the Spending Clause and outlines the requirements for using conditional grants to implement laws in areas where the Constitution doesn't explicitly provide for a federal role.
A Spending Clause program must meet the following criteria:
- Be in pursuit of the "general welfare;"
- Be related to federal interest, in particular national projects or programs;
- Not be prohibited by other constitutional provisions;
- Be unambiguous in describing the conditions on the states’ receipt of federal
- Be a financial inducement and not coercion.
The report charges that the NCLB violates the last two Dole requirements: it is ambiguous and coercive. The report’s conclusions will likely form the basis of the constitutional claims of the CT case.
In support of the charge of ambiguity the report points to protracted periods of negotiation between states and the Department of Education and ongoing amendments to state plans in response to changing federal guidelines. The Department of Education has allowed some states to proceed with their accountability programs after having rejected similar plans for other states. An inference may be drawn from these facts that the law is unconstitutionally ambiguous.
The report supports its charge of coerciveness with the additional education money states stand to lose by non-compliance. Quoting from the report,
"...failure to participate in No Child Left Behind would jeopardize not only the additional money available to states for NCLB, but also the tens of millions of dollars they were receiving before NCLB. The fact that the federal government has increased the stakes for not participating in Title I programs, while expanding its scope without commensurate funding increases, creates a coercive relationship between states and the federal government."
Whether the Federal Courts, and doubtless the Supreme Court, ultimately, will find NCLB in violation of the Dole test, I can’t say. This does seem like the sort of opportunity for scaling back the scope of unenumerated Congressional powers that the High Court has been using of late to reign in the Congress on social policy. Even if the conservatives on the court have to rap the knuckles of their pet Administration to do it, it might be worth the trade-off in their eyes.