Legal Victory Against NCLB

K-12 Testing

FairTest Examiner - January 2008

School districts and education groups have long argued that the underfunding of No Child Left Behind creates illegal unfunded mandates because the U.S. Department of Education requires states and districts to carry out all parts of the law. On January 7, 2008, the federal Sixth Circuit Court of Appeals agreed, ruling that NCLB "fails to provide clear notice as to who bears the additional costs of compliance," thereby violating the "Spending Clause of the United States Constitution." The Circuit Court returned the case to federal district court in Eastern Michigan for further proceedings. In November 2005 the district court had dismissed the lawsuit.

The case had been brought by nine school districts, the National Education Association and nine of its state affiliates (see Examiner, ). The heart of the case is a section of the law that says, "[n]othing in this Act shall be construed to…mandate a State or any subdivision thereof to spend any funds or incur any costs not paid for under this Act." Districts claim they are forced to spend their money on NCLB requirements, which means they have less funding available for other valuable programs, or they could lose all their NLCB funds. The U.S. Department of Education has said that states and districts must spend their own funds to carry out the law if federal funding is insufficient.

In its response to the appeals court ruling, the NEA said, "It’s time for the administration to stop asking states and local school districts to foot the bill for a law it claims to believe in, but has undermined by the refusal to fund its requirements." The NEA noted underfunding is only one of the major problems of the law, referring to its "obsessive focus on standardized testing, heavy-handed punishments and bureaucratic protocols."

The U.S. Department of Education has not decided whether to appeal the case to the U.S. Supreme Court.

The appeals court decision is at