The nation's largest teachers union joined school districts in Michigan, Texas and Vermont in filing a federal lawsuit yesterday charging that the Department of Education has failed to provide adequate funding for the No Child Left Behind initiative.
The first-of-its-kind suit is the latest in a series of challenges to the Bush administration's signature education law, which is designed to make every student in the country proficient in reading and math by 2014.
On Tuesday, the Utah legislature voted to give priority to its own school accountability system over the federal law in the event of a conflict.
"The rebellion is growing," said Jack Jennings, president of the Center on Education Policy, a Washington-based think tank that has been tracking implementation of the No Child Left Behind law. "These actions are all ratcheting up the pressure on the Bush administration to either relax some of the requirements of No Child Left Behind or provide more money to fund it," he said.
New Education Secretary Margaret Spellings has been attempting to defuse protests against No Child Left Behind by promising a "common-sense" attitude toward interpreting the law and by broadening exemptions for disabled students. But she has been unable to bridge the gap with several states, including Utah, Connecticut and her home state of Texas, all of which are demanding greater concessions from the federal government.
"Since taking office, I have made a point of reaching out to state education leaders, and at every possible opportunity have signaled that I will be flexible and work with states to implement No Child Left Behind. But I will not do so at children's expense," Spellings said in a prepared statement. "Turning back the clock and returning to the pre-NCLB days of fuzzy accountability and hiding children in averages will do nothing to help the students who are currently enrolled in Utah's schools."
Lawyers for the National Education Association, which represents 2.7 million educators and has been at the forefront of protests against No Child Left Behind, cited a clause in the law that protects states from incurring "any costs not paid for under this Act." Opponents depict the law as an underfunded federal mandate that has imposed billions of dollars of extra spending on states.
"The principle of the law is simple," said Reg Weaver, president of the NEA. "If you regulate, you have to pay."
Bush administration officials dispute studies by several states that show they are being forced to pick up the costs of additional standardized testing required by the 2002 law. They argue that federal funding for education has increased significantly over the past five years.
"Today's announcement is regrettable," said Education Department spokeswoman Susan Aspey. "Four separate studies assert the law is appropriately funded and not a mandate."
Although several school districts have mounted legal challenges to parts of the No Child Left Behind law, the section of the statute on unfunded federal mandates has yet to be tested in court. The NEA case is likely to center on complicated arguments and conflicting estimates of the costs of the standardized tests that form the centerpiece of the accountability system promoted by the Education Department.
The case illustrates the changing nature of the rebellion to No Child Left Behind, which is shifting away from outright opposition to complaints about a lack of funding. The Republican-controlled Utah legislature dropped an earlier threat to opt out of the law completely in order not to lose tens of millions of dollars in federal subsidies for some of the state's lowest-performing schools.
Instead, states are seeking relief from certain requirements while continuing to receive federal funds. Texas, for example, has exempted 9 percent of its students from regular state tests on the grounds they are learning-impaired. Spellings has agreed to exempt as much as 3 percent of students in each state.
The new Utah law authorizes state officials to ignore provisions of No Child Left Behind that have not been fully funded by the federal government. Legislators voted for the law in a special session despite warnings from Spellings that they ran the risk of losing $76 million in federal funding.
After meeting with Spellings earlier this month, Virginia Superintendent of Public Instruction Jo Lynne DeMary said she was "very encouraged" by Spellings's more flexible attitude, particularly over required tests of disabled students. DeMary and Maryland Superintendent of Schools Nancy S. Grasmick predicted changes would lead to a sharp drop in schools failing to meet a requirement that they show "adequate yearly progress" in student test scores.
But the changes failed to satisfy several other states, including Connecticut, which is preparing a lawsuit that challenges a federal requirement that students be tested annually between grades three and eight, as well as in grade 10. According to calculations by state auditors, the mandate will cost Connecticut $8 million more than the federal government provides.
Connecticut Attorney General Richard Blumenthal delayed the suit to wait for the outcome of negotiations between state education officials and the U.S. Department of Education. But little came from a meeting this week between Spellings and Connecticut Education Commissioner Betty J. Sternberg, and Blumenthal said he expects to file the lawsuit "imminently."