Conn. Files Long-Awaited Lawsuit Challenging No Child Left Behind Act

Connecticut Attorney General Richard Blumenthal has made good on his nearly 5-month-old threat to sue the U.S. Department of Education over the No Child Left Behind Act, making his state the first to take its objections about the law to the federal courts.
Filed Aug. 22 in U.S. District Court in Hartford, the state’s complaint in Connecticut v. Spellings argues that federal funding to the state for the No Child Left Behind law falls far short of what is needed to meet the law’s testing and accountability requirements. The suit contends the failure to fully fund the law violates a provision in the nearly 4-year-old education statute itself that says states will not be required “to spend any funds or incur any costs not paid for under this act.”
From Education Week, August 22, 2005
By Jeff Archer

“Our message today is: Give up the unfunded mandates, or give us the money,” Mr. Blumenthal said at a press conference in his office after filing the lawsuit.
Although surrounded by key Connecticut education leaders and policymakers who expressed their support at the announcement, Mr. Blumenthal said no other state had joined the legal action. Since first threatening to sue over the law in April, he has said one of the reasons he has waited to do so was to give other states a chance to take part.
The 28-page complaint recounts how Connecticut’s attempts to get waivers of some of the student-assessment provisions in the No Child Left Behind law have been repeatedly denied in recent months by U.S. Secretary of Education Margaret Spellings.
In particular, Connecticut education officials sought unsuccessfully to get out of the law’s requirement that they expand their testing system—which assesses students in mathematics and reading in grades 4, 6, and 8—to cover the entire span of grades 3-8. An estimate by the state department of education pegs the cost of putting in place those and other additional assessments called for in the law at $41.6 million by 2008, compared with $33.6 million that the state is slated to receive from the federal government by then for test implementation.
“The additional tests, as imposed by the requirements of NCLB, are of questionable merit,” state Commissioner of Education Betty J. Sternberg said at the Aug. 22 press conference. “There is no research base that tells us that additional testing of this type will yield better results.”
Connecticut also has unsuccessfully sought flexibility in the law’s requirements on the testing of special education students and students who are learning English.
The state’s legal case rests largely on the so-called unfunded-mandates provision in the No Child Left Behind law, which says that “nothing in this chapter shall be construed to authorize” the federal government to “mandate a state or any subdivision thereof to spend any funds or incur any costs not paid for under this chapter.” The complaint also cites the spending clause in Article I of the U.S. Constitution, which has been construed by the courts as requiring Congress to make unambiguous any conditions attached to states’ acceptance of federal money.
Susan Aspey, a spokeswoman for the U.S. Education Department, called the lawsuit “unfortunate” in a written statement. Arguing that Secretary Spellings has worked to meet states’ concerns about the law, she added nonetheless that testing in each grade, from 3-8, is needed to catch problems in a timely manner.
“Today’s action doesn’t bring the state any closer to closing its achievement gap, which is among the largest in the nation,” Ms. Aspey said.
In June, the department asked a judge in U.S. District Court in Detroit to dismiss a similar lawsuit filed by the National Education Association, arguing that the No Child Left Behind Act is not an unfunded mandate because states are under no obligation to take the federal money allocated for it. The department’s motion is pending. (“U.S. Asks Court to Dismiss Lawsuit Over NCLB,” July 13, 2005.)
Turning that argument around at his press conference, Attorney General Blumenthal said that by threatening to withhold money from the state if it doesn’t comply with the law’s requirements, the federal government is putting hundreds of millions of dollars for Connecticut’s schools at risk. That fear, he added, is partly why other states haven’t joined the suit, although he left open the possibility that some other states may yet do so.
“That’s money that goes to schools that serve our neediest children,” he said. “It goes to school lunch programs, after-school programs, reading-achievement programs, all of the kinds of programs that are necessary for meeting the objectives and goals of No Child Left Behind.”
The federal Education Department has 60 days to file a legal response, which could be a motion to dismiss the case.
Meanwhile, the case has been assigned to U.S. District Court Judge Mark R. Kravitz.
“We’re hoping he will expedite our case, and it won’t be years, but a matter of months,” Mr. Blumenthal said.