By Pamela M. Prah Stateline.org
WASHINGTON, D.C. -- States are likely to face more new lawsuits as a result of the Bush administration's sweeping No Child Left Behind education law, the National Conference of State Legislatures said in a memo released July 9.
But states themselves could have a strong case if they decide to go to court over the law, the memo said. Specifically, states could sue the federal government for not providing states with enough money to implement the array of new testing and reporting requirements that No Child Left Behind demands, NCSL said in a memo prepared for state lawmakers.
The NCSL neither supports nor encourages legal challenges to the law, said David Shreve, an education expert at NCSL. The memo is in response to questions and concerns that state lawmakers across the country have over the costs of implementing No Child Left Behind.
The National Education Association, the country's largest teachers' union, announced last week that it is preparing a lawsuit to challenge the un-funded mandates imposed on states and school districts by the No Child Left Behind Act as contrary to the intent of Congress.
States are already facing "adequacy" lawsuits that charge that they are not providing enough money to local school districts to ensure that all schools can meet state performance measures. No Child Left Behind is likely to accelerate those kinds of lawsuits, according to the NCSL memo.
The NCSL also points to a paper by Bill Mathis, a professor of school finance at the University of Vermont and a local school superintendent, that concludes that seven of 10 states will have to increase their funding levels by at least 24 percent to avoid adequacy litigation.
"In other words, as a result of No Child Left Behind, the states will likely face court challenges to their school finance systems just as the federal government could face federal court challenges to the fiscal implications of the law," NCSL said in the memo.
U.S. Education Department official Dan Langan said the department had not seen the NCSL memo but reiterated that the administration is providing historic levels of federal funds to the states for education. "We believe that the federal resources that are available to achieve the goals of the law are more than ample," Langan told Stateline.org.
The question on many state lawmakers' minds is whether No Child Left Behind's various testing and reporting requirements are an unfunded mandate imposed by the federal government. The NCSL said states "could present a strong argument" that No Child Left Behind makes clear that states do not have to pick up the check.
Specifically, the statute reads: "Nothing in this Act shall be construed to authorize the Federal Government to mandate, direct or control a State, LEA or school's curriculum, program of instruction, allocation of State or local resources, or to spend any funds or incur any costs not paid for under this Act."
Stateline.org reported in April that many lawmakers balked at the cost of the federal education law.
Fourteen states considered legislation that calls for more federal funding to help implement the new testing and education standards required by the federal education law. Eleven of those 14 states refer to No Child Left Behind as inadequately funded or under-funded, according to NCSL. Four states -- Hawaii, New Hampshire, Utah and Vermont -- seriously considered legislation that would have allowed the states to walk away from No Child Left Behind and return federal funds to be spared the law's requirements.
The likelihood that No Child Left Behind will force states to spend more of their own money has also prompted Massachusetts and Utah to recommend that legislative committees study the impact of the federal law and whether "declining participation" should be an option worth pursuing, according to the memo.
And to help curtail the costs associated with No Child Left Behind, four states -- Colorado, Hawaii, New Hampshire and North Carolina -- considered eliminating current assessments to save money. "This is an unexpected consequence of NCLB," according to the memo.
NCSL hired law firm Brustein & Manasevit of Washington to prepare the memo.