November 23, 2005
Federal Judge Dismisses Challenge to Education Program
By MICHAEL JANOFSKY, NY TIMES

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WASHINGTON, Nov. 23 _ A federal judge in Michigan on Wednesday dismissed a major challenge to the Bush administration's signature education program, No Child Left Behind, saying the federal government has the right to require states to spend their own money to comply with the law.

The action came in the first lawsuit that tried to block the education law on grounds that it imposed requirements on states and school districts that were not paid for by the federal government. A handful of states have complained that the law forces them to spend millions of dollars that they do not have, and one, Connecticut, has sued the department in a separate federal action.

In his ruling, Judge Bernard A. Friedman of the United States District Court for the Eastern District of Michigan, southern division, said that if Congress meant to prohibit unfunded mandates in the No Child Left Behind law, lawmakers would have phrased the legislation 'to say so clearly and unambiguously."

Judge Friedman said those challenging the law offered nothing to show that Congress "intended for these requirements to be paid for solely by the federal appropriations." He made a distinction between Congress, which he said has the right to impose conditions on a federal states and officers or employees of the Education Department, who he said do not.

While the plaintiffs in the Michigan case ­ the nation's largest teachers union and school districts in Michigan, Texas and Vermont ­ said they would appeal the decision, it remained unclear what impact it might have on a separate Connecticut challenge to the law, which was filed in late summer.

Department of Education lawyers, who have until Dec. 2 to respond in the Connecticut case, said the department would cite the Michigan ruling in their filings.

On the other hand, Connecticut Attorney General Richard Blumenthal declared the Michigan ruling wrong and in no way legally binding on Connecticut's lawsuit, insisting that "We will continue to pursue our claims vigorously."

The No Child Left Behind law requires children in every racial and demographic group in all schools to score higher on standardized tests in math and English each year. A school's overall failure to achieve annual progress can lead to sanctions, and in the most severe cases, closing.

Education Secretary Margaret Spellings, who has spent years negotiating with states over compliance with aspects of No Child Left Behindcalled the Michigan ruling "a victory for children and parents all across the country."

She added, "Chief Judge Friedman's decision validates our partnership with states to close the achievement gap, hold schools accountable, and to ensure all students are reading and doing math at grade-level by 2014."

Reg Weaver, president of the National Education Association, the teachers union that is the largest plaintiff in the case, said, "We are obviously disappointed with the opinion."

He accused the federal government of shortchanging the states by billions of dollars to cover the costs of testing and said, "Parents in communities where school districts are financially strained were promised that this law would close the achievement gap. Instead, their tax dollars are being used to cover unpaid bills sent from Washington for costly regulations that do not help improve education."

Mr. Weaver said he was particularly disturbed that Judge Friedman dismissed the case with a minimal explanation, a point that Mr. Blumenthal raised, as well. Mr. Blumenthal said Judge Friedman's decision "is virtually incomprehensible and completely unsupported" by citations to other cases.

The Connecticut lawsuit is somewhat different from the Michigan case in that Mr. Blumenthal is not only seeking to force the federal government to cover the state's costs for implementing No Child Left Behind. He is also charing the Department of Education with acting in an "arbitrary and capricious manner" in denying state requests for flexibility in complying with the law.

Many states have sought exemptions from meeting requirements of the law, and Ms. Spellings has granted several. In September, she allowed the Chicago public schools to use federally-finance tutoring programs, rather than private firms, as the law requires, for poor-performing students.New York City was granted a similar exemption this month.

She also extended a waiver to students in four school districts in Virginia, allowing access to tutoring before transferring to schools that are performing better.

Connecticut had sought a waiver from the law to test children every other year, rather than annually, a request the department denied.

That denial, Mr. Blumenthal said, is "making our case factually different."

COURT HEARS ARGUMENT IN NEA SUIT CHALLENGING NCLB

Recently, Judge Bernard A. Friedman of the U.S. District Court in Michigan heard oral argument in a suit against No Child Left Behind. The case, Pontiac v. Spellings, pits a group of school districts and education organizations from Michigan, Vermont, Texas and elsewhere against the U.S. Department of Education. The issue is whether USDOE is violating Section 9527(a) of the law, which states, "Nothing 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." Plaintiffs contend that the federal government has not provided districts with the funds needed to comply with the law's provisions, and yet requires that they achieve compliance by 2007, causing them to need to dip into state budgets.

Judge Friedman is expected to issue a decision in November.

Initial Complaint, Pontiac v. Spellings (4/20/2005)

SEATTLE POST-INTELLIGENCER
http://seattlepi.nwsource.com/national/249581_nochild24.html

Court win for No Child Left Behind
Thursday, November 24, 2005

By TONI LOCY
THE ASSOCIATED PRESS

WASHINGTON -- A judge threw out a lawsuit Wednesday that sought to block the No Child Left Behind law, President Bush's signature education policy. The National Education Association said it would appeal.

The NEA and school districts in three states had argued that schools should not have to comply with requirements that were not paid for by the federal government.

Chief U.S. District Judge Bernard Friedman, based in eastern Michigan, said "Congress has appropriated significant funding" and has the power to require states to set educational standards in exchange for federal money.

The NEA, a union of 2.7 million members and often a political adversary of the administration, had filed the suit along with districts in Michigan, Vermont and Bush's home state of Texas, plus 10 NEA chapters in those states and Connecticut, Illinois, Indiana, New Hampshire, Ohio, Pennsylvania and Utah.

The school districts had argued that the law is costing them more than they are receiving in federal funding.

The law requires states to revise academic standards and develop tests to measure students' progress annually. If students fail to make progress, the law requires states to take action against school districts.

Reg Weaver, president of the NEA, said his group would appeal.

"Parents in communities where school districts are financially strained were promised that this law would close the achievement gaps," he said.

"Instead, their tax dollars are being used to cover unpaid bills sent from Washington for costly regulations that do not help improve education."

The lawsuit alleged that there was a gap between federal funding and the cost of complying with the law.

Illinois, for example, will spend $15.4 million annually to meet the law's requirements on curriculum and testing but will receive $13 million a year, the lawsuit said.

Education Secretary Margaret Spellings said the decision "validates our partnership with states to close the achievement gap, hold schools accountable and to ensure all students are reading and doing math at grade-level by 2014."

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