Federal Judiciary

Sixth Circuit Enacts the ?Some Children Left Behind? Act

By Robert Loblaw

School District of the City of Pontiac v. Secretary of Education, 05-2708 (6^th Cir., Jan. 7, 2008)

In an fascinating Spending Clause decision, a divided panel of the Sixth Circuit has struck down the unfunded mandates in the No Child Left Behind Act. Under the NCLB, local school districts receive additional federal funding in exchange for agreeing to meet certain educational thresholds. The problem, according to many school districts, is that the federal government does not provide anywhere near enough money to satisfy all the conditions of the NCLB. So a group of Michigan school districts sued, asking for a declaratory judgment that they could accept federal money under the NCLB without complying with all the unfunded conditions.

The district court dismissed the suit, but a divided panel of the Sixth reverses. In a decision authored by Judge Cole, the majority explains that Congress can?t tell state or local governments how to spend their own money. Although Congress can achieve the same result by offering federal funds with conditions attached, the financial conditions imposed on the state must be crystal clear. The NCLB is not crystal clear. In fact, former Secretary of Education Rod Paige has agreed with the plaintiffs? interpretation that local school districts need not comply with the unfunded provisions of the NCLB. But Margaret Spelling, the current Secretary of Education, disagrees with this position and dismisses Paige?s statements as “stray comments.” Not so fast, says the majority. Because the statute is not clear, the local school districts do not need to comply.

Judge McKeague dissents, arguing that the majority?s decision flies in the face of traditional assumptions about educational funding. He writes,

Imagine the following: there is a service with which State and local governments have historically provided its citizens. The governments finance the service through taxes. Local provision, local financing, local control. But now, imagine that the federal government comes along and offers a deal associated with that service. The deal comes with both a carrot (more money) and a stick (more duties). A reading of the offer sheet confirms what could be expected: the duties are mandatory if they choose to participate, but the money, well, like all money from the federal government, is subject to change from year-to-year. But, the reading also confirms that the offer can be accepted in one period and dropped the next, so the risks are not open ended. The State and local officials are thus faced with a choice: accept the money and assume the duties, or forgo both and go it alone with less money but fewer duties.

There is, of course, really no need to imagine such a world?what I have described is not the Emerald City in the Land of Oz but rather this country?s primary and secondary education system. But rather than wearing green-tinted glasses, I submit that the inhabitants of this system?State and local school officials?had a crystal clear vision of what Congress was offering them by way of the No Child Left Behind Act of 2001 (the “NCLB”). Many of them could not bring themselves to pass up the federal funds, but simply hoped that someone or something would save them at the end of the road. Today the majority does exactly that.

This is a major decision with a strong possibility of en banc review, or even certiorari. Stay tuned.

Full post as published by Decision of the Day on January 07, 2008 (boomark / email).