The No Child Left Behind Act—Must Congress Fully Fund Its Mandates?
By Martha McCarthy, Ph.D.
January 8, 2008 marked the sixth anniversary of the federal No Child Left Behind (NCLB) Act. This law, designed to improve the performance of public schools, requires states to implement accountability systems to assure highly qualified teachers and students’ adequate yearly progress toward performance goals. Central features of the law are academic standards, annual student testing, and expanded choices for parents of children attending schools that do not meet state standards over time. This law has been controversial since its enactment, and one issue generating substantial debate has been school districts’ obligations to implement NCLB requirements that are not fully funded by the federal government.
Specifically, some legal challenges have focused on the NCLB provision stipulating that the federal government cannot require states or their subdivisions to spend any additional state or local funds to comply with the act’s requirements. Several school districts and professional education associations have contended that under this provision, school districts do not have to comply with NCLB mandates that Congress has not fully funded. The U.S. Department of Education has countered that school districts receiving NCLB aid must comply with the law regardless of whether federal appropriations cover the cost of such compliance. Several federal courts have sided with the Department in ruling that school districts must comply with unfunded NCLB provisions.
However, one day before NCLB’s sixth anniversary, a panel of the Sixth Circuit Court of Appeals by a two-to-one vote reversed one of these decisions in School District of the City of Pontiac v. Secretary of the U.S. Department of Education. This ruling has attracted national attention because the Sixth Circuit reasoned that state officials plausibly could believe that NCLB compliance is not required for provisions without adequate federal funding. The court concluded that under the Constitution’s provision authorizing the federal government to expend funds for the general welfare, Congress must provide clear notice to states of their liabilities if they decide to accept the federal aid. And since the full amount of NCLB aid initially authorized has not yet been appropriated, the Sixth Circuit held that the law fails to provide states with the required notice of their additional costs of compliance.
The Sixth Circuit panel did recognize that Congress could amend the law to make explicit its intension for compliance to be mandatory regardless of the federal appropriations to states and school districts electing to participate in the funding program. Such explicit language would provide clear notice to states contemplating whether to become involved. The Department is asking all justices on the Sixth Circuit to review the appellate panel’s decision, and possibly this case eventually will generate a U.S. Supreme Court decision. For now, however, school districts in at least one federal circuit are not obligated to comply with unfunded NCLB mandates—a significant development indeed. #
Martha McCarthy is the Chancellor’s Professor and Chair, Educational Leadership and Policy Studies, Indiana University.
