Washington Lawyer

Cover Story

April 2008

 

 

No Child Left Behind Act

By Joan Indiana Rigdon

 

On April 11, 1965, as part of his War on Poverty, President Lyndon B. Johnson traveled to Junction Elementary School in Stonewall, Texas. There, sitting beside his first teacher, he signed into law the country’s first general aid program for education, the Elementary and Secondary Education Act (ESEA), whose Title I section aimed to improve the education of the nation’s poorest students.

 

Over the years, various presidents have retooled ESEA, changing the law’s name and funding formulas as they went. It is now known as the No Child Left Behind Act (NCLB). When President Bush signed it into law in 2002, Americans were told to raise their expectations: unlike previous versions of ESEA, NCLB would finally hold America’s schools truly accountable for their students’ dismal performance in reading and math.

 

For most of its history, ESEA pumped money into education without setting standards for what it expected in return. It was President Clinton’s version of the law, the Improving America’s Schools Act (IASA), which first required states to test academic performance and develop plans to improve it.

 

President Bush took things further by adding sanctions to the mix. Under NCLB, states that want to continue receiving federal education funding must submit plans for every student, regardless of race, income, or native tongue, to be proficient at reading and math by 2014. Schools whose students don’t make “adequate yearly progress [AYP]” toward that goal—as measured by an exhaustive battery of multiple choice tests—are targeted for radical restructuring. What’s more, schools marked for improvement must give their students the option of transferring to better schools.

 

Six years and more than $150 billion later, the Bush administration insists NCLB has been a huge success. Some schools have shown major improvement. Math and reading scores are on the rise.

 

Civil rights leaders like the law, too. They say it sets equal expectations for all students, including previously abandoned low performers, and that it can help all children, many of them minorities, transfer out of the nation’s worst schools. “It’s the most important piece of civil rights legislation going right now,” says Bill Taylor, chair of the Citizens’ Commission on Civil Rights, which monitors the civil rights policies of the federal government.

 

The problem is, nearly everyone else thinks the law should be overhauled or even scrapped. Instead of reauthorizing NCLB last fall, as the president implored them to do, Congress let it expire. (NCLB is still in force, however, because it was automatically extended for one year.)

 

According to its critics, NCLB has actually lowered education standards by forcing schools to obsess over testing while diverting some of their own funds—as well as huge chunks of classroom time—away from their own educational goals to do that testing.

 

Indeed, one thing we know from all the testing that is required is that the nation’s students aren’t making much progress under NCLB. Math scores, for instance, have risen under NCLB, but at a slower rate than they did before the law took effect. Reading scores have barely budged.

 

There’s been book-cooking, too: Afraid of having their schools tagged as failures, which could mean large-scale staff replacement, or being forced to cede a school to private management, many states have assured themselves of improved results by dumbing down their assessment tests or lowering the definition of a passing grade. Technically, that’s allowed, since NCLB requires students to be “proficient” but doesn’t say what that means.

 

As of press time, the bill to reauthorize NCLB remained on life support. With the nation’s attention focused on the presidential primaries, it seemed unlikely to surface for a vote anytime soon, either in the House or in the Senate—where Democratic presidential candidates Hillary Clinton and Barack Obama, both members of the Senate Health, Education, Labor and Pensions Committee, have openly excoriated it. Clinton calls it a “broken” promise; Obama has branded it “one of the emptiest slogans in the history of American politics.”

 

“All of the Democratic presidential candidates basically trash it in one form or another,” says John Brittain, chief counsel for the Lawyers’ Committee for Civil Rights Under Law, a nonprofit that provides legal services to combat racial discrimination. Republicans aren’t defending the law either, he notes, “It’s the bill everybody loves to hate.”

 

At this point, NCLB probably won’t be reauthorized until after the election, perhaps not until a year after. “I would say reauthorization is dead,” says Leigh Manasevit (pronounced ma-NAS-a-vit), partner at Brustein & Manasevit, a law firm that advises states and school districts on NCLB compliance.

 

But no one is saying that ESEA itself is dead. A new version will eventually emerge, and what that version will look like will depend a lot on the proposals being bandied back and forth now.

 

“The time leading up to the election and after the election are going to be a very important time” for various groups to try to put their stamp on what the new law will look like, Manasevit says.

 

Consider what happened in 1999, when Congress allowed Clinton’s IASA to expire. “As we went into the year before the 2000 election, there was no real movement to get reauthorization, but the proposals were very important. You saw a lot from those proposals in what the final No Child Left Behind looked like,” Manasevit says.

 

For example, where IASA rated schools on their overall test scores, NCLB rates schools on the performance of each subgroup of students, whether the group is defined by race, gender, income, or limited English language proficiency. Under this new system, a school can fail to meet federal benchmarks for improvement if even one of its subgroups fails to do so. “That move was foreshadowed in the proposals” before the 2000 election, Manasevit says.

 

“So I think that similarly, the proposals are going to be very important …” during the transition to the next administration, he adds. “There is lots of opportunity for input from education groups and even noneducation groups like chambers of commerce, governors’ associations, groups like that. This process is going to be very important this year.”

 

Unfunded Mandate?

While No Child Left Behind has been under attack for various reasons most of its life, it suffered its biggest blow in early January, when a panel of the United States Court of Appeals for the Sixth Circuit ruled, 2-1, in an unfunded mandate lawsuit that the law is unclear on what liabilities states incur when they accept NCLB funds. Statutes that are enacted under the Spending Clause of the Constitution must clearly notify states of the liabilities they might incur if they accept federal funding, the majority wrote.

 

That decision, in Pontiac v. Spellings, was a long time coming; it was handed down 14 months after oral arguments.

 

Pontiac was originally filed in April 2005 in U.S. District Court for the Eastern District of Michigan. The plaintiffs—the National Education Association (NEA), along with several school districts in Michigan, Texas, and Vermont—alleged NCLB is an unfunded mandate. They argued that although the law promises to cover all costs of compliance for states who sign on, it forces participants to foot part of the bill.

 

In its decision, the majority called on Congress to clarify states’ liabilities under NCLB. “Of course, if that is ultimately what Congress intended,” the majority wrote, referring to the idea that states should use their own funds to comply with unfunded NCLB mandates, “the ball is properly left in its court to make that clear.”

 

The NEA, the nation’s largest teachers’ union with about 3 million members, has interpreted the ruling to mean that states are not required to comply with any NCLB requirements that aren’t funded by the law.

 

“This really is a dynamic that could change the debate” over not only NCLB, but also all future versions of ESEA, says Bob Chanin, general counsel of the NEA.

 

“If this holds up and they don’t proceed to overturn it at appellate level, it says to the Bush administration, ‘You’ve been saying for six years that this is the best thing since sliced bread for public education. If you really believe that, you’re going to have to put in another $70 billion. The only way you can compel [states to comply with NCLB] is if you give them the money to do it,” Chanin says. “You can’t have it both ways.”

 

Ambiguous Language

The Pontiac case hinged on the court’s interpretation of one clause in the law, section 9527(a). It reads:

 

    Nothing in this Act shall be construed to authorize an officer or employee of the Federal Government to mandate, direct, or control a State, local educational agency, or school’s curriculum, program of instruction, or allocation of State or local resources, or mandate a State or any subdivision thereof to spend any funds or incur any costs not paid for under this Act.

 

The NEA and its coplaintiffs had taken the language to mean that states would not have to use any of their own funds to comply with the law.

 

Secretary of Education Margaret Spellings had offered a different interpretation, saying the clause simply prevented rogue representatives of the federal government from imposing additional, unfunded mandates on NCLB recipients.

 

“We thought that was literally absurd,” Chanin says. “It grammatically doesn’t work, and it is totally contrary to the absolutely clear legislative history of this provision in both the Senate and House of Representatives.”

 

The Sixth Circuit did not render its own interpretation of the clause. Instead, it concluded the language is “ambiguous” and, therefore, in violation of the Constitution’s Spending Clause.

 

Declaring the clause ambiguous instead of defining it “was a cautious approach, and that strikes me as very sound. On the face of the statute, [the majority] has a very strong position,” says Gershon “Gary” Ratner, founder of Citizens for Effective Schooling, a Bethesda, Maryland, nonprofit that proposes major changes to NCLB.

 

Arlington v. Murphy

The Pontiac majority drew heavily on the Supreme Court’s 2006 ruling in Arlington Central School District Board of Education v. Murphy. In that case, a school district in New York State argued it should not be compelled to cover expert witness fees for plaintiffs who had successfully sued the district under the Individuals with Disabilities Education Act or IDEA.

 

Because IDEA was enacted under the Spending Clause, it should be interpreted very narrowly, the district argued. The act requires the losing side in an IDEA lawsuit to cover “reasonable attorneys’ fees” for the winner. It doesn’t mention expert witness fees.

 

The defendants argued that legislative history showed Congress intended for the act to cover expert witness fees. But the Supreme Court decided legislative intent was not enough. “In a Spending Clause case, the key is not what a majority of the Members of both Houses intend but what the States are clearly told regarding the conditions that go along with the acceptance of those funds,” Justice Samuel Alito wrote for the majority.

 

The defendants cited “the strongest type of legislative history. They had a conference committee report that said this is what Congress intends. The Supreme Court says that doesn’t matter. That’s not clear enough notice, because that’s not in the statute itself. … That’s a very strong requirement,” Ratner says.

 

Chanin had already briefed Pontiac when the Supreme Court made its ruling in Arlington. “It was like a godsend,” he recalls. “It was the most persuasive and forceful reiteration of the need for Congress to make sure that any conditions imposed with a spending power statute have to be clear and unambiguous.”

 

If Pontiac Stands

As of press time, the United States Department of Education was in the process of filing a petition for a rehearing en banc.

 

If the Pontiac decision survives the appeals process, it will be extremely difficult for Congress to revive NCLB, in Chanin’s view.

 

Theoretically, Congress could comply with the Sixth Circuit’s ruling—or render future Pontiac appeals moot—by simply deleting section 9527(a). “If they delete it, there goes our case,” Chanin says.

 

But he doesn’t think that will happen because the consequences are too politically explosive. “Who’s going to make a motion to delete that? How can the Republicans do it? Republicans are opposed to all unfunded mandates. And Bush is saying this is fully funded. If these two things are true, how do I stand up and say I want to delete 9527(a) so we can have unfunded mandates, to which we are opposed?” Chanin asks.

 

Going forward, Chanin predicts the government will be forced to scale back NCLB mandates. School districts that can prove they are using their own funds to comply with the act can say, “You’ve given us $5 million dollars and we have $10 million of obligations,” Chanin says. To which the Department of Education will have to say, “These are the things we want you to do. Do 1–3 and 10, but don’t do 12, 13, 14, or 15.”

 

Schools that want to take this road will have a lot of work to do, Chanin says. “Gather evidence. Do a study so that you can prove if called upon that it will cost you $10 million to comply, but you’ve only got $5 million. All of our plaintiffs [in Pontiac] were in a position to do this.”

 

Predictably, Secretary Spellings is alarmed by such advice. At a recent meeting with San Diego business leaders, Spellings announced she was sending a letter to all states, reminding them that the law is still on the books.

 

Chanin doesn’t expect major changes anytime soon. “First, everyone will wait to see” how the appeals process proceeds, he says. In the meantime, “we’re advising states and locals to start these studies” on the costs of complying with NCLB.

 

Brittain, of the Lawyers’ Committee for Civil Rights Under Law, believes the NEA has overestimated the importance of the ruling. “Contrary to the NEA’s assertion that the Pontiac decision is now the law of the land … that decision is only binding in those states in the Sixth Circuit,” he says.

 

Connecticut v. Spellings

Meanwhile, another unfunded mandate lawsuit is wending its way through the courts, but most of its counts have been dismissed. In August 2005, shortly after the NEA filed Pontiac, Connecticut Attorney General Richard Blumenthal filed a separate lawsuit alleging NCLB contains unfunded mandates. That suit, Connecticut v. Spellings, was filed in United States District Court for the District of Connecticut.

 

Last year the District Court dismissed that count, and two others, on jurisdictional grounds, without reaching the merits. One count remains. In it, Connecticut argues Secretary Spellings denied the state due process by refusing the state’s request to continue its 20-year tradition of testing in alternate years, instead of every year from grades three through eight.

 

Connecticut says annual testing would cost $8 million more than it receives in NCLB funds.

 

Once the District Court rules on the fourth count, “I’m sure [Blumenthal will] appeal that to the Second Circuit and hope that the Second Circuit will follow the Sixth Circuit” decision in Pontiac, Brittain says.

 

Unfunded Mandates and Civil Rights

Pontiac’s emphasis on unfunded mandates has raised the ire of civil rights proponents, since America’s civil rights laws are, after all, unfunded mandates.

 

That worry “is more than just academic,” says Brittain. “Just take the NEA’s response to the Pontiac decision. They are saying in a kind of MLK-like disobedience, a kind of civil rights of school districts, that you don’t have to do anything more than you can with what money you get from [NCLB]. And if the government comes after you, we will defend you.

 

“It’s more than academic now. This defense on the unfunded mandate point could lead states on a new era of nullification, where they don’t have to enforce certain laws, including civil rights laws, if the government doesn’t give them [money] for every hour they have to spend enforcing it,” Brittain says.

 

“We do say that it’s a threat, at least, to civil rights enforcement,” he adds.

 

Chanin is adamant the NEA is not against unfunded mandates in general. “NEA certainly supports unfunded mandates in the civil rights area and other areas,” he says.

 

Brittain replies, “They may limit it to their action. But that doesn’t stop the state governments from expanding on the concept.”

 

Manasevit does not think there is any chance that either Pontiac or Connecticut could unravel other federal mandates that aren’t funded, because there are so many of them, down to the Equal Employment Opportunity Commission’s requirement to employers to post notices in workplaces. “Federal laws always require people to do things that cost money,” he says.

 

Taylor, of the Citizens’ Commission on Civil Rights, finds the whole idea preposterous. If NCLB is an unfunded mandate, “then the Constitution is also an unfunded federal mandate,” he says.

 

NCLB: A Civil Rights Tool

Civil rights lawyers were profoundly disappointed by Congress’s failure to reauthorize NCLB, because the law pumps billions of dollars into schools and increases opportunities for poor and minority students.

 

Taylor notes some of the law’s harshest critics are wealthier parents who have seen school curriculum shift away from the needs of advanced students toward those who have fallen behind.

 

“The largest source of resistance and opposition to No Child Left Behind comes from, number one, the teachers’ unions and particularly the NEA, and secondly, from a lot of middle-class and affluent parents. The law applies everywhere, and you’ve got all of these suburban parents in Brookline and Westchester County and Scarsdale saying that schools are narrowing curriculum, teaching to the test, and abandoning the gifted,” Taylor says. He has been a civil rights lawyer since 1954, when he joined the NAACP Legal Defense and Educational Fund to work on desegregation cases.

 

“There are in this society those who think that, while they have some generalized concern about poor kids, their main concern is that their kids go to the best schools and have the best chance of success … and they don’t like anything that will upset that system. I think that’s a part of our problem with desegregation and with promoting voluntary diversity, that schools that have a diverse population and schools that have some poor kids in them are generally viewed, they think, by admissions offices at Harvard, as not very good schools. I think that’s part of our problem, with this becoming more a society of haves and have–nots.”

 

Taylor adds: “They would prefer that the schools that their kids attend not take in transfers [of students from failing schools] … And they complain that if the school focuses so much on poor kids and their needs, they don’t do enough on music. My answer to that is: give them music lessons at home.”

 

Taylor has sat on many panels over the years that have worked on various aspects of ESEA legislation. He recalls one fellow panelist who complained that to prepare students for the 21st century, schools should focus on more than just reading and math. “My question to her was, ‘Can we think of any set of 21st century skills that doesn’t depend on mastering numeracy and mastering English language arts and reading?’

 

“What I’m saying is, affluent parents take it for granted that their children will master these things, so they want more for gifted kids.”

 

Ultimately, Taylor would like to see public schools meet the needs of advanced students as well as those who need help mastering basic skills. Still, he says, “Those problems need to be met on their merits. Don’t slough it off on poor kids who need basic skills. Don’t say, ‘We can’t do what’s needed for them because we have to do gifted programs.’”

 

Overall, “What NCLB was set up to do is set up an accountability system” that gives parents in failing schools the tools to see when a school is failing and have it restructured when it does. Whether it will ultimately work, I don’t know. I’d like to preserve public schools, and this is the best hope of doing it,” says Taylor, who sent his children to public schools at the elementary level.

 

Ironically, Taylor’s support of NCLB puts him at odds with another longtime civil rights lawyer, Ratner, who started his career working for the NAACP Legal Defense and Educational Fund in 1966 in Mississippi. Ratner has since served as deputy executive secretary of the United States Department of Health, Education, and Welfare and has specialized in education issues since the 1970s. Today, Ratner is founding executive director of Citizens for Effective Schools, a nonprofit based in Bethesda, Maryland.

 

Ratner agrees with the goals of NCLB. But he questions the methodology.

 

Among other things, Ratner believes the law puts too much emphasis on using flawed tests or varying standards as a basis for punishments, such as restructuring, that haven’t been proven as effective tools for improving schools. “I’m a believer in accountability. But what has happened is that the public, and to a large extent the media, has fallen for the notion that the only way you can get accountability is by having AYP and then sanctioning schools,” he says.

 

“That’s become defined in the public’s mind as accountability. But that’s a huge mistake. It’s really got the whole thing upside down. Instead of putting the emphasis on test scores and sanctioning schools, including taking over governance, sending them out to charter schools, instead of having a scheme that is totally artificial, what we need to do his hold schools accountable for making systemic changes that would actually improve learning,” he says.

 

To advance these views, Ratner helped draft a joint organizational statement that lists several specific ways to revise the law. It has been signed by more than 140 groups that, in turn, represent more than 50 million people. “I think that that’s probably had some impact” on the debate over NCLB, Ratner says.

 

Taylor disagrees with Ratner’s assessment of NCLB’s sanctions. “Most of the money is not for punishment. It’s for educational improvement. There’s money in the act for professional development for teachers, more money than there’s ever been in the law before. Money is in the law,” he says.

 

Schools need accountability to prod them into action, Taylor says. The idea that “if you just say, ‘No consequences,’ that that will encourage you to do better, that something is going to happen … We’ve had three or four decades of that without anything happening.”

 

Taylor does want to see several changes in the law, whether it re-emerges as NCLB or something else entirely. He supports the movement to change testing so the same students are tracked longitudinally for several years, to see how they progress over time. Under the current system, this year’s third graders, for instance, are compared with last year’s third graders.

 

Taylor acknowledges some states have lower testing standards than others. But “there is some provision in the current law that suggests that scores on state standards ought to be compared with scores on NAEP,” the National Assessment of Educational Progress, a national test that students take in addition to state tests.

 

“If there’s too large a gap” between state standards and the NAEP, “you’ve got to do something,” Taylor says.

 

The gaps can be huge. Consider Mississippi. According to its own test results, 89 percent of its fourth graders were proficient readers in 2005. But only 18 percent tested proficient on the national test.

 

Some have suggested using only NAEP to measure adequate yearly progress. But “people say we’re not ready for national standards. Politically, that’s probably right,” Taylor says.

 

With growth models, “at the end of two or three years, if the kids are on trajectory to achieve proficiency, you would count them as proficient. And if they’re on the opposite trajectory, you wouldn’t count them as proficient.”

 

The Transfer Provision

Most of all, as a longtime civil rights activist, Taylor would like to see more provisions to help students escape from failing schools. Under the current law, when a school fails to meet adequate yearly progress for two years, it is labeled as one that needs improvement. Then its students may request transfers to better schools in the same district. Taylor is a vocal advocate for a provision that would allow transfers between districts, or even to private schools, since some students live in districts where no schools make AYP. “In a lot of cities, there aren’t that many schools that are not in need of improvement,”

 

Taylor says. “You need a mandate, so if there are not enough good schools in a city, they can go to suburban schools. You say to suburban schools, if you want [ESEA funds], you need to accept kids from central cities. There’s a need there that’s not being fulfilled.”

 

Taylor has no data on whether such transfers would result in desegregation, but he can see it working that way. “I might like it in part because of that,” he says.

 

The problem is, under the current law, while students may request transfers, and while failing schools are required to set aside 15 percent of their NCLB funds to provide the necessary transportation, there is no guarantee that students actually will be transferred. Many school districts have simply sat on such requests, or turned them down, saying they can’t provide room at the receiving school.

 

“We need stronger enforcement” of the transfer provision, Taylor says. “We have superintendents who are likely to say they don’t have room when they really do have room.” To enforce the provision, “You take some money away, just the way we enforce Title VI,” Taylor says. Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, and national origin in programs that receive federal funding.

 

Taylor doesn’t think students should necessarily get to choose where they transfer, as long as they land at a school that meets AYP. He points to St. Louis as one place where transfers have worked. “We’ve got kids in Clayton, which is a suburb of St. Louis, where 90-plus percent of transfer kids are graduating high school and going to college, and 85 percent of those kids” are eligible for FARMS, or free and reduced cost meals, he says.

 

Private Right of Action

Taylor also wants another radical change in the law: a private right of action, which would allow any individual to sue over a violation of the law.

 

“I’m seriously saying it. I’ve got a letter signed by 50 or so civil rights lawyers” in support of adding a private right of action to the law, Taylor says. “There is growing support in the civil rights movement for this kind of reform,” he says.

 

In January 2003, parents in New York City and Albany tried and failed to establish a private right of action. Their students attended schools that had failed to meet AYP for two years running. Under NCLB, the schools were therefore required to immediately notify parents and offer the students services such as tutoring and transfers to better schools. The parents alleged their districts failed to comply. Their case, Association of Community Organizations for Reform Now v. New York City Department of Education, was filed in January 2003 in U.S. District Court for the Southern District of New York.

 

In June 2003 the court dismissed the case. “It is clear that Congress did not intend to create individually enforceable rights with respect to the notice, transfer, or [tutoring] provisions contained in the NCLBA,” the court found.

 

The NEA does not support the idea of adding a private right of action to the law. Under the current version, people can file complaints with the Department of Education over alleged violations of law and the Inspector General can audit how the department is implementing the law, says Joel Packer, the NEA’s director of Educational Policy and Practice.

 

Adding a private right of action “could potentially result in just an explosion of litigation against individual teachers, school districts, states … We think we’d just end up taking a lot of time, costing a lot of money.”

 

And as a teacher’s union, “we’re concerned about teachers being named as potential defendants. We don’t see the need for it,” Packer says.

 

Wither Kennedy?

While many of NCLB’s original backers have distanced themselves from the bill, even its chief architects, Massachusetts Democrat Sen. Edward Kennedy and California Democrat Rep. George Miller, are starting to criticize it.

 

“Up until at least spring of last year, they were very resistant to legislative changes to the law and generally defenders of the law. They were critical of funding and critical of how the Bush administration was implementing the law, but they were not calling for a change to the statute itself,” says the NEA’s Packer. “This year they have significantly changed their tune and their tone.”

 

Last summer, Miller declared the law “not fair,” “not flexible,” and “not funded.” Last month, in a Washington Post op–ed on the eve of NCLB’s sixth anniversary, Senator Kennedy ticked off some of its accomplishments, but then proceeded to roundly criticize it, writing that “its one-size-fits-all approach encourages ‘teaching to the test’ and discourages innovation in the classroom.[1]”

 

The National Conference of State Legislatures (NCSL), which has long criticized NCLB, believes the law is hopelessly convoluted. Representative Miller’s draft revision numbered 600 pages, compared to approximately 1,100 for the original. Says David Shreve, the NCSL’s federal affairs counsel: “It’s a terrible irony that you take 600 pages of amendments to fix 1,100 pages of messed up public policy, as if that’s going to simplify and clarify it.”

 

Whatever happens, won’t happen soon. “We’re looking at January 2010 for a new law,” Manasevit says.

 

In the meantime, it’s open season.

 

Note

[1] Edward M. Kennedy, How to Fix ‘No Child,’ Wash. Post, Jan. 7, 2007, at A17

 

Freelance writer Joan Indiana Rigdon last wrote about the legal battles and health implications surrounding trans fats in the December 2007 issue.