No Child Left Behind

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(HOST) School districts in Vermont and elsewhere have asked a federal court to reconsider an earlier lawsuit challenging the No Child Left Behind Law. Commentator Cheryl Hanna shares her views on the lawsuit and its chances for survival.

(HANNA) Just the day before Vermont opposed Michigan and Texas on the question of whether the EPA should regulate greenhouse gas emissions, school districts in all three states, along with the National Education Association, joined forces in asking a Federal Appeals Court to revive a lawsuit challenging the No Child Left Behind Act — proving, once again, that the enemy of my enemy is my friend.

The Vermont-Michigan-Texas alliance claimed Congress passed No Child Left Behind without appropriately funding it, thereby illegally forcing the states to foot the bill.

Last year, a lower court threw out the suit, and, unfortunately, I think the appellate court will do the same, given the way the law is written.

People often ask how it is that the Federal Government can dictate what schools do. After all, education is one of the most important functions of local government and thus, at first blush, it might appear that No Child Left Behind unconstitutionally infringes upon the rights of the States.

But No Child Left Behind is authorized under Congress’s power to tax and then spend for the general welfare of the people – what’s referred to as the spending clause. It’s this clause in the Constitution that provides the basis for most federal laws regulating education, including prohibiting discrimination on the basis of race, gender, or disability.

What the law really says is that if a state wants to receive any federal funds for education, then it must comply with No Child Left Behind. So if we want any of the federal taxes we pay to come back to us for education, No Child Left Behind is one of the strings attached. The courts consider this all part of the contract between us and Congress. So unless the plaintiffs can show that the Feds are somehow coercing us into taking their money, or that the contract wasn’t clear, we’ve signed on the dotted line.

Some states have considered telling the Feds that they can just keep their money, but we’ve all grown increasingly dependent on federal dollars to fund education. Vermont receives over fifty million dollars each year from Washington that could be at risk if we refused to comply.

But maybe we’re better off supporting our schools without federal funds anyway. Keep in mind that the lawsuit doesn’t argue that the law is actually harming our schools, but only that Congress isn’t keeping its part of the bargain. On the slim chance that we do win, Congress could abandon the law as too expensive, or it could say, “OK, here’s more money to do endless testing of your students.” Another good reminder of that old aphorism to be careful what you wish for.

Cheryl Hanna is a professor at Vermont Law School in South Royalton.

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