The fate of the NCLB lawsuit lies in the true motives of the plaintiffs and the legislators

In 2001, President Bush signed the controversial No Child Left Behind (NCLB) act, designed to meet the expressed goal of every last student in the United States achieving 100% proficiency in literacy and mathematics by 2014. In order to achieve these lofty aims, NCLB specifically targets the notable gaps in academic achievement between white students and under-achieving, “at-risk” minority students. The act thus requires annual state-regulated proficiency testing of students in grades 3 through 8 – a move that has drawn the usual array of foes and fans. Supporters of the act argue that annual proficiency testing recognizes the achievement discrepancy problem as soon as it arises, forcing states and school districts to assume responsibility for the performance of all of their students. Thus, the act prevents schools from continuing to ignore the achievement gap by assessing proficiency with respect to the population as a whole rather than as a collection of distinct subgroups. In essence, NCLB focuses on the accountability of educators. Its stated goals are noble, and the act itself has been touted as a landmark law in education policy reform. In terms of generating national support, however, the act has infuriated many educators—leaving them far, far behind, if you will.

On April 20, school districts in Michigan, Texas, and Vermont, the nation’s largest teacher’s union, the National Education Association (NEA), and its affiliates in ten different states filed a lawsuit against the United States Department of Education. The lawsuit, officially titled Pontiac v. Spellings, claims that Department of Education Secretary Margaret Spellings has violated the NCLB law and the U.S. Constitution by obliging states and school districts to comply with NCLB even though the federal government has under-funded it by an estimated nationwide total of $27 billion.

The lawsuit centers on a single sentence in the 700-page piece of legislation: Section 9527(a), which states that nothing in the law authorizes the federal government to “mandate a state or subdivision thereof to spend any funds or incur any costs not paid for under this Act.” Ostensibly, the stated purpose of the lawsuit is to require that Secretary Spellings either relax federal NCLB regulations, or exempt states from the requirements of the law not provided for by federal funding.

Several policymakers have argued, however, that the plaintiffs’ goals in filing the suit are not to end funding imbalances, but rather to embarrass the Bush administration, or even to destroy the act altogether. This suspicion is no conspiracy theory; in all likelihood, these conservative-agenda assassination-theorists are at least partially correct. Recently-appointed Deputy Secretary of the Department of Education, Ray Simon, commented, “I don’t see where this lawsuit advances [the] mission [of No Child Left Behind] at all.” If anything, Simon explains, the lawsuit will only discredit NCLB, potentially leading to its downfall.

USA Today columnist DeWayne Wichkam suggests that a more effective method of ending achievement gap funding imbalances would be to sue the states rather than the federal government. Since federal law and state constitutions dictate that public education funding is exclusively the responsibility of the state and that federal funding is not legally required, the states are those ultimately responsible for the achievement gaps. Wickham claims that instead of targeting the federal government, the NEA should argue that “the failure of states to close the education achievement gap between white and minority students […] is a violation of the equal protection clause of the 14th amendment.” If the NEA and its affiliates understand this line of reasoning, then it seems mighty suspicious that they persistently insist on targeting the federal government.

Critics of the lawsuit further raise suspicions that perhaps its most objectionable aspect is the case’s frivolity. Scott Young, an education policy specialist with the National Conference of State Legislatures, stated, “I do not think the case is ripe enough yet to bring to court. [Even though that] time is getting closer each school year, [the plaintiffs] may be more successful getting what they want through litigation if they wait until there is enough data and other evidence to make the case more ripe.” Currently, the data concerning the success of NCLB is rare and muddled. Conflicting groups churn out conflicting numbers to support otherwise unfounded arguments.

Others have tried to paint the plaintiff’s complaints in the colors of subversion and racism. On April 28, Martin R. West, research associate at Harvard’s Program on Education Policy, and Paul E. Peterson, Henry Lee Shattuck Professor Government and director of Harvard’s Program on Education Policy, wrote an op-ed article for the Wall Street Journal outlining the lawsuit’s faults. In a suspicious comparison meant to discredit the lawsuit as a tool only used to further elitist or racist agendas, West and Peterson first compare Pontiac v. Spellings to southern segregationists’ anti-governmental complaints in the aftermath of Brown v. Board of Education – the ruling that required the integration of public schools. The segregationists’ complaints were an attempt to undermine the ruling, specifically by claiming under-funding on the part of the federal government.

West and Peterson more forcefully argue that NCLB is not actually a mandate, and that any state that chooses to reject the funding and its accompanying rules is entirely free to do so. In fact, the state of Utah recently decided that federal funding in the form of NCLB money was more hassle than it was worth, and declared that state education policies take precedence over federal ones. West and Peterson further clarify that congressional authorizations are limits to expenditures, and do not compel the government to provide equal funds. Most importantly, the article refutes claims that “money appropriated does not cover the costs of the new activities that are required” by NCLB, explaining that “nearly all independent estimates of the costs of testing come to less than $50 dollars per student out of the approximately $10,000 per student currently being spent on their education.” Finally, West and Peterson show that the federal government fully funds tutoring provisions and transfer procedures in the event that a school is labeled as inadequate for two years in a row.

Assuming West and Peterson’s claims are correct, and that the lawsuit is meant to serve as a tool to dismantle NCLB, the question remains: what could possibly motivate the plaintiffs’ filing of the lawsuit? Why would the nation’s largest teachers’ union ever want to dismantle education reform?

Many opponents of NCLB believe that its regulations are unrealistically demanding. Due to factors outside of the educators’ control, 100% proficiency by 2014, let alone ever, appears to be an impossible goal. As such, people are suspicious that Bush’s intent in passing the law was actually to discredit public education in order to build public support for taxpayer-funded private school vouchers. Evidence to support these suspicions includes the fact that Bush appointed voucher proponents to key education policy positions during his first term in office. Further adding to fears of a privatizing agenda, an editorial in The Record noted that the Bush administration “has overemphasized parts of [NCLB] that encourage privatization of public education, such as by forcing failing districts to hire private tutoring companies for students and by allowing states to convert long-struggling schools into charter or for-profit schools.”

NCLB opponents feel that the act forces them into a position where they must choose between the lesser of two equally unappealing evils. Rejecting federal funds hurts the quality of the state’s public education system by forcing it to choose between either raising taxes to maintain the current rate of per-pupil spending, or lowering the rate of per-pupil spending to keep taxation rates level. Additionally, rejection of NCLB projects the message that the state does not care about bridging the achievement gap. Accepting federal funding, however, might ultimately lead to the sweeping privatization of education and the downfall of public education.

In spite of the lawsuit’s panoply of criticisms and conspiracy theories, plaintiffs steadily insist that their motivation results from the $27 billion under-funding of NCLB. The Connecticut Department of Education provided an example budget for education funding, showing that the total cost of NCLB projects for the state of Connecticut is $112.18 million; that the estimated federal funding is $70.58 million; and that the remaining cost to the state is $41.6 million. The NEA further argues that “local communities are simply asking the Bush administration to allow parents to spend hard-earned tax dollars on their children’s classrooms—not bureaucracy, paperwork and testing companies.” States argue that they want to spend their money not on further testing, but on ways to close the achievement gap problems that testing serves to diagnose. States understand that the diagnostic measurements of NCLB are essentially good, and that their public education systems can benefit from the knowledge gained by federally-funded proficiency testing, but also this knowledge’s productive implementation.

Perhaps the lawsuit, instead of destroying NCLB, will have an ultimately beneficial effect. If the Department of Education relaxes NCLB regulations, allowing for less-frequent proficiency testing, more sufficient funding, and more realistic goals, then the states might be able to work with the federal government to bridge the achievement gap. The federal government can fund the diagnosis of problem areas, while the states can spend their money on methods of improvement. The ultimate outcome, however, lies in the purposes of the act’s legislators. If the goal of NCLB is indeed to increase accountability, then such new solutions can only strengthen the ambitious law. If, however, each side is bent on mutual destruction, we can only expect this game of divisive politicking and argumentative subversion to continue.