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Education Standing Committee

Click here for a printer friendly version of this memorandum on NCLB mandates and their related legal issues. (Adobe Acrobat required)

In January 2002, the federal government enacted sweeping education reform legislation, known as the No Child Left Behind Act. State legislatures throughout the country are now engaged in implementing the new law and in allocating financial resources to meet its various requirements. Few, if any, legislators disagree with the law's goal of substantially and demonstrably improving the quality of education for all children in the nation's public schools. In the course of complying with its provisions, though, many state legislators and other education policy-makers have raised questions about the costs the law imposes on the states. Several studies (including one by the U.S. Government Accounting Office) suggest that the funds appropriated by the federal government are not adequate to cover the expenses the law imposes on state governments and local school districts-in other words, that the No Child Left Behind Act constitutes an unfunded federal mandate on state governments. (It is important to recognize that this conclusion is not universally accepted and that, in particular, the White House and the U.S. Department of Education strongly deny that there is inadequate funding for states to implement the new law.)

In the course of researching this unfunded mandate question, the National Conference of State Legislatures, state departments of education and other groups have focused on a section in the No Child Left Behind Act that would appear to prohibit the federal government from imposing unfunded mandates on states and localities in conjunction with this law. Although the words of Section 9527(a) are straightforward, what they mean and how they might be used to forestall the imposition of unfunded mandates is complicated.

Because several state legislatures have expressed interest in this section, NCSL commissioned a law firm, which specializes in education issues (Brustein & Manasevit of Washington, DC) to prepare a memorandum on the history, nuances and possible uses of Section 9527(a). The document that is attached integrates that legal analysis with additional background information on No Child Left Behind developed by NCSL staff. Because state legislators, state departments of education and local school jurisdictions have expressed interest in using Section 9527(a) as the basis of legal challenges to the funding aspects of the federal law, the document offers some guidance on how the section might be used in a legal context. It is safe to say, however, that the success of legal challenges, based on the history of the section and uncertainties regarding how courts would react to it, is by no means certain.

The National Conference of State Legislatures has no position regarding possible legal challenges. Rather, the organization has devoted its efforts to working with the administration to effect regulatory changes that would alleviate the financial and substantive concerns that legislators have expressed about the legislation. In recent discussions, the administration has appeared willing to further explore possible regulatory solutions to the problems identified in this mailing and NCSL is committed to working with the administration without litigation. In addition, our official policy position calls on Congress to make technical corrections to No Child Left Behind in response to the experience that legislatures have had so far in implementing the law.

You should also know that NCSL staff have provided in-depth assistance in at least 20 legislatures and have responded to hundreds of requests for information regarding No Child Left Behind. We hope that you will take advantage of this service and will call on NCSL to answer any questions you may have about this landmark legislation. For additional information, please contact David Shreve in the NCSL Washington office at (202) 624-8187 or david.shreve@ncsl.org.

Possible Legal Ramifications Regarding the No Child Left Behind Act

I. Basic Structure of Federal Education Programs - The United States Supreme Court has repeatedly held that public education is "perhaps the most important function of state and local governments." San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 29 (1973). The Court has further stated that under our federal system, "[b]y and large, public education in our Nation is committed to the control of state and local authorities." Epperson v. Arkansas, 393 U.S. 97, 104 (1968).

The federal government's initial involvement in education was to provide financial assistance to specifically targeted groups, such as economically disadvantaged students, special education students, and homeless students. For the most part, prior to NCLB, the "strings" attached to the receipt of federal education funds (considered "conditions of grant", "spending clause conditions," or "funds in the nature of a contract which states can decline" and not unfunded mandates by the U.S. Supreme Court) were tied to the specifically funded programs. For example, the Improving America's Schools Act (IASA-1994, the last reauthorization of ESEA) imposed testing requirements for Title I students. While there was an "aspirational" aspect that states would implement assessment systems for all public school students in the state, the law only required content and performance standards, and assessments on those standards, for Title I children. (IASA also required "alignment", i.e. that those standards and assessments were the same as those that existed (if indeed they did exist) for non-Title I students. Tying funding and specific activities together meant the cessation of those activities when federal program funds were exhausted.

Among other requirements, NCLB requires annual testing of all students in grades 3-8, and testing at least once in grades 10-12. In a significant departure from past versions of ESEA, under NCLB, assessments apply to all students in public schools, not only those in schools that receive Title I funds. (The federal definition of 'Title I schools' captures about 35% of all public schools.) States are also required to develop and administer science assessments, and must test the English proficiency of Limited English Proficient (LEP) students. States must report assessment results before the beginning of the following school year. In addition to the above and many additional requirements, virtually all public school teachers and paraprofessionals must meet rigorous qualification requirements by 2006. The testing requirement is the only substantial requirement of NCLB with its own line item in the federal budget, and the sufficiency of its funding level is hotly debated.

Potentially more financially burdensome for states are the accountability requirements of NCLB. These requirements mandate that states:

• determine whether all schools, not only Title I schools, are making Adequate Yearly Progress (AYP) toward a goal of 100% proficiency for all students in 12 years. (Federal sanctions for failure to meet AYP are permitted to apply only to Title I schools);
• develop both annual measurable objectives and intermediate goals;
• monitor whether local educational agencies (LEAs) meet the required AYP thresholds;
• collect and report on individual student, school, district & state test data (among other requirements these reports must include information by disaggregated student groups - i.e. sex, race, socioeconomic status, English learners, and special education population);
• state educational agencies (SEAs) are required to provide technical assistance for schools that are identified for school improvement

Under NCLB, state participation is tied to continued receipt of Title I funds, which range from about $25 million/year to about $1.2 billion/year.

C. Money goes to the school district; responsibility goes to the state.

Federal K-12 funds are sent to the SEA with subsequent distribution requirements to pass the majority of the funds through to the LEAs. Statutory changes in NCLB have imposed absolute caps and/or reduced the percentage held for statewide activities. While LEAs are responsible for determining whether individual schools make AYP thresholds, as nominal recipients of state-administered program funds, the SEA/State (federal statutes use the two interchangeably) is ultimately responsible for ensuring that all requirements of NCLB are being met. LEAs are not permitted to design their own assessments or develop their own AYP targets, rather they must participate in the state assessments and be held accountable to state-developed AYP targets. After failing to make AYP for a certain number of years, schools are identified as being in "school improvement," which results in such consequences as mandatory public school choice, the provision of supplemental educational services and the reconstitution of faculty and curriculum.

While NCLB did provide an increased level of K-12 education funding (of about $5 billion or a 1.1% increase in aggregate K-12 funding in FY 2002), and the cost estimates of implementing NCLB's requirements vary widely, it is highly likely that states and localities will incur significant additional costs to implement NCLB. (This is a hotly contested issue. Some state studies, focusing exclusively on the 'hard' requirements of NCLB, i.e. testing, data processing, additional teacher/teacher aide recruitment/training, have estimated hundreds of millions of dollars in process implementation costs. Those anticipating the increased incidence of adequacy lawsuits for failure to meet state/federal definitions of an adequate education put the implementation figure in the billions. See Section VII of this document for more information on NCLB invoking "adequacy" litigation.) For its part, USDEd has aggressively challenged state studies, state initiatives, or lines of inquiry and attempted to assure states and locals that they have provided sufficient money in the increased appropriations to cover the federal requirements. In a legislative hearing in Vermont, the USDEd regional representative's response to the funding question was as follows, "The act is paid for, and we are paying what we should be paying for.")

The categorical nature of NCLB funds, and the specific restrictions placed on certain program funds, is likely to pose a financial issue for states. For example, as a result of the public school choice requirements in NCLB, the USDEd has determined that capacity of a 'receiving school' is not an exception to providing choice for kids in failing schools. Therefore, certain states or districts may have to provide additional classrooms in 'receiving schools', to accommodate families requesting school choice transfers. However, Title I funds (which reflect the bulk of federal funding increases) are not permitted to be used for school construction purposes. Therefore, these choice costs, which have no specific line item in the federal budget, could not be supported with Title I funds.

As an additional example, funding for state technical assistance for schools in need of improvement was a line item in the federal budget until congressional appropriators zeroed out the line item and rolled the funding into Title I increases. With estimates that the incidence of failing schools is likely to increase exponentially while broad (and flexible) SEA set-asides are diminishing (see "C" above), most of the 'historic' federal increases are off limits for SEAs trying to comply, leaving state general funds as the likely source of technical assistance activities.

In order to receive funds under NCLB, SEAs were given the option of submitting a Consolidated Application - which serves as an application for all NCLB funds - by June 2002. All SEAs exercised this option and submitted a Consolidated Application in June 2002.

As an ongoing part of the Consolidated Application, states were required to submit an "Accountability Workbook" (sometimes called the AYP plan) that described their State's accountability system by January 31, 2003. All States submitted the Workbook by that deadline. These submissions will be (or have been) peer-reviewed (by teams of state superintendents under the nominal supervision of the Council of Chief State School Officers, CCSSO) as part of the approval process. Five states' accountability systems were given "approval" of their plans at this stage at a White House ceremony on the one-year anniversary of NCLB. USDEd announced that it had approved an additional State, Mississippi, on March 19, 2003. It is still not exactly clear what this approval means, or what exactly was approved, but it appears that the Workbooks are a road map that the SEA has committed state education policy to follow. As such, those commitments will in most cases have to be acted upon by the legislature with both statutory changes and fiscal commitments. USDEd has still not issued letters to approved states indicating the parameters of approval and has indicated that possible changes may be required. It is yet to be determined whether "approval" is final approval, or some type of conditional approval, where USDEd will require additional actions to be taken by the states.

By May 1, 2003, states were required to and did submit further "final" evidence of their accountability systems, including an indication of whether relevant state statutes had been amended. This is also a continuation of the June 2002 Consolidated Application submission. It is not clear whether "approved" states will have to submit additional evidence after review.

If a plan is not approved and USDEd believes there is no possibility for successful negotiation to modify the plan, there are three possibilities that can result.

1. request that the state enter into a compliance agreement,
2. denial of the plan, or
3. determination of non-compliance with an existing state plan.

If USDEd believes the state is "failing to comply substantially" with NCLB at any point, including as a result of a state's accountability workbook submission, USDEd could request that the state enter into a compliance agreement with USDEd. (GEPA §§454, 457). A compliance agreement is a voluntary agreement that the state may enter into in order to ensure that NCLB funds continue to flow to the state. Compliance agreements carry with them many burdensome administrative requirements, including significant state-level public hearing requirements, publication of the compliance agreement in the Federal Register, and a specific end-date by which the state agrees it will come into compliance. Several states entered into compliance agreements with USDEd regarding their final Title I assessment system (under IASA) in 2001. It is important to remember that by entering into a compliance agreement, an SEA, as proxy for the state, is admitting the state is not in compliance with the law's requirements and are agreeing to do what USDEd wants within a specified time period.

At any point in the Consolidated Application review process, for example submission and review of the accountability workbook, if part of the state plan is denied, the entire state plan could be denied. Before denial of the state plan, USDEd must:

1. Offer the state an opportunity to revise the plan,
2. Provide technical assistance to assist the state in meeting the state plan requirements, and
3. Provide a hearing.

(NCLB §1111(e)). While the statute does not define the term "hearing," it is likely that this hearing would be before a program officer, rather than an Administrative Law Judge (ALJ), though the Secretary could delegate the hearing authority to an ALJ. If the hearing is not before an ALJ, it is likely to be a relatively informal hearing. After the initial hearing, it is likely that an appeal could be made to the Secretary. The final agency decision, likely from the Secretary, would be considered a "final agency action." "Final agency action" is the trigger that exhausts administrative options, and permits a State to file in federal court (see Part III below for more information about the importance of exhausting administrative remedies in relation to federal court cases).

Because USDEd does not have the authority to allow funds to flow to a state absent a compliant state plan, it is likely that NCLB funds would be withheld from a state as a result of state plan denial. Before funds are withheld, a state is entitled to a hearing before an ALJ (GEPA § 455 and EDGAR, Part 81). In fact, in a withholding case, it is likely that a state would have to conclude the administrative process before it could bring a case in federal court (see Part III below). If the ALJ decision, and ultimately a decision by the Secretary, results in the continued withholding of funds, the state is entitled to judicial review of the withholding decision via the U.S. Court of Appeals (GEPA §458).

If USDEd approves the plan, but a state does not carry out parts of its plan, due to fiscal inability or other reasons, USDEd could withhold funds from the state because it is in non-compliance. This would trigger a traditional "withholding" hearing (discussed above) under GEPA and Part 81 of EDGAR. Appeal of a withholding decision would be to a U.S. Court of Appeals.

During any administrative hearing, parties are typically advised to bring up any and all possible arguments to ensure that the record is preserved for appeal. This includes, in this case, any argument involving Section 9527(a) of NCLB, discussed further in the subsequent section of this memorandum.

NCLB contains a provision that states:

Identical language was also contained in the prior reauthorization of ESEA, the Improving America's Schools Act of 1994 (IASA). While this language was not included in IASA when it was initially introduced, the language ultimately emerged from the Senate version of the bill (contained in Senate version in Title X, Section 10604, final version of IASA at Section 14512).

Though Section 9527(a) is slowly beginning to gain attention among certain state Attorneys General, chiefs and local superintendents, no state or local school district has yet challenged the USDEd on its implementation requirements based on a Section 9527(a) action. Accordingly, there is no case law indicating how a court will interpret Section 9527(a) (of course, different courts are likely to interpret the section differently). Nonetheless, under the basic rules of statutory construction, the plain meaning of the statutory language is fairly clear - states, or local subdivisions, do not have to spend funds on the costs of NCLB that are not paid for by the Act itself.

States and subdivisions could present a strong argument that Section 9527(a) is clear in prohibiting the federal government from mandating states or subdivisions to spend funds not paid for by NCLB, and within the plain meaning of the statute, this point would likely be vigorously litigated by the federal government. Further research on the legislative history of Section 9527(a), and a thorough development of an argument about its statutory construction, would be essential in any litigation regarding Section 9527(a). Cursory searches of remarks in committee and on the floor of the Senate for the reasoning and intent behind this provision have yielded little insight into its inclusion in IASA. However, there is considerable history of similar language restricting federal authority in earlier iterations dating back to the 1979 congressional action elevating Education into a cabinet level agency. Some of these are specific whole others address broader issues outlining the federal-state relationship:

• Title 20, Chapter 48, Subchapter I, Sec. 3403(a) Rights of local governments and educational institutions: The establishment of the Department of Education shall not increase the authority of the Federal Government over education, which is reserved to the States and the local schools systems and other instrumentalities of the States. 

In order to bring any case to a federal court, the party bringing the case must satisfy multiple procedural requirements. If these standards are met, the case is deemed "justiciable." While there are many justiciability requirements that would be examined and addressed in the event of litigation, the major justiciability issues that are likely to arise in the context of Section 9527(a) are: standing, ripeness, and an important subset of ripeness, exhaustion of administrative remedies.

In brief, in order to bring a lawsuit, a party must have a personal 'stake' in the matter to be adjudicated. At a minimum, the party must demonstrate the following three requirements:

1. the party bringing the action has suffered, or will imminently suffer, an actual injury;
2. that the injury was caused by the action of the adverse party; and
3. the party's injury can be remedied by a favorable decision by the court.

The point of these requirements is to ensure that a plaintiff has, or will be, harmed by the defendant, and that a court will have the power to do something to redress the harm. Non-quantifiable or speculative injuries will not qualify as actual injuries. If an injury has not yet occurred, the party bringing the case must show an immediate threat of harm, and that the risk of injury is great. The mere possibility of future harm is not enough to give a plaintiff standing.

With respect to NCLB Section 9527(a), the entity bringing the case must be able to show that the manner in which USDEd is enforcing the law will bring immediate, quantifiable, monetary injury to that entity. Likely entities to bring a case in that context would be an arm of the executive branch of the state, such as the State Attorney General bringing a case on behalf of the State, or perhaps a local school board, challenging implementation requirements based on the cost to the locality. A state or local entity bringing the case must be able to show that enforcement of the law by the federal government would mandate the state or local entity to spend state or local funds not paid for by NCLB appropriations. The party bringing the case would have to have substantial evidence (i.e. a link between federally required but unfunded elements of the state plan and a record of subsequent expenditures to match) to support that claim.

A case must be considered "ripe" before a court will hear the case. If an injury is too speculative, the court will not consider the case. In short, for a case to be considered ripe, that party bringing the action must demonstrate: 1) a hardship will likely be suffered in the absence of judgment by the court; and 2) that the issues are fit for judicial decision (such as sufficient facts are in evidence to permit a decision - if additional facts would be needed to decide a case, the case will not be considered ripe).

Because Section 9527(a) arises in the context of the U.S. Department of Education, an administrative agency, the Administrative Procedure Act (APA) applies. The APA grants certain administrative hearing rights to parties affected by an agency. Typically, a party must demonstrate that they have exhausted all administrative remedies available to them before going to federal court. The General Education Procedures Act (GEPA) is a law that establishes certain administrative procedures, such as a hearing before an Administrative Law Judge (ALJ), for resolving conflicts with the U.S. Department of Education. In addition, NCLB itself establishes administrative hearing procedures that USDEd must follow before it denies a state plan. Therefore, if USDEd denies a state plan, or withholds funds, it is likely that a court would require a party to exhaust all administrative remedies at USDEd before bringing the case in federal court.

There is one limited exception to the requirement that parties must exhaust administrative remedies (known as the Leedom exception) that could permit a party to bring a Section 9527(a) action directly to federal court. Under this exception, parties can challenge agency actions where they can demonstrate that the agency has acted in excess of its statutory authority. Where there is no administrative exhaustion, courts will step in and resolve potential breeches of authority only where there is a 'facially clear' breach in contravention of a mandatory directive. Further, the party must also be able to demonstrate that i) they will be prejudiced by a delay; ii) there is doubt as to whether the agency has the power to grant effective relief; or iii) there is evidence that the administrative body has already reached a decision or is biased. To show the prejudice necessary to obtain judicial review under this line of cases, the party must be able to show 'exceptional circumstances.' Even if none of these three factors is present, courts will weigh the government's interest in administrative autonomy against the party's interest in immediate judicial review. Allowing an agency to perform functions within its special competence is a primary interest, and addressing disagreements regarding the meaning of agency regulations, statutes, and application of the law it was designed to administer are all interests that will trump a party's interest in immediate judicial review.

Successful use of the Leedom exception in the context of NCLB would likely be difficult. This is primarily because the Leedom exception is not a broad exception, but instead, is narrow and used only for extreme situations. In general, even where there is an assertion that an agency is acting outside of its statutory authority, the exhaustion doctrine generally requires that an agency be accorded an opportunity to determine initially whether it has jurisdiction. In the context of Section 9527(a), rather than bypassing the administrative options altogether, it is possible that a federal court would require the party bringing the case to have a determination by USDEd that USDEd does not have the jurisdiction to hear the issues concerning the construction of Section 9527(a).

However, if a party can present an argument that USDEd is exceeding its congressionally delegated authority, and is operating contrary to a "clear and mandatory" prohibition under NCLB, it is possible that the Leedom exception could be successfully asserted and a Section 9527(a) case could be brought directly in federal court. If, for example, a state or locality can present evidence that the method by which USDEd is enforcing NCLB requires (or will imminently require) a state or locality to spend its state or local funds on implementation, and can demonstrate that requiring the spending of state or local funds is directly prohibited by Section 9527(a), the party bringing the action might successfully assert the Leedom exception. Again, it is important to note that the party bringing the case would have to present actual evidence that USDEd was requiring the party to spend state or local funds to implement NCLB requirements - an unsupported assertion would not be sufficient. (See Section IV A (1) of this document.)

Section 9527(a) could also be raised in an audit defense in the event that USDEd audits a state and determines non-compliance with program requirements. Again, the state would need to be able to provide specific evidence of costs that were not covered by NCLB in order to successfully assert this defense. Even in the absence of pre-emptive judicial action, it is very important for all states to maintain detailed and accurate records of federal requirements versus state and local spending on NCLB, because Section 9527(a) may prove to be a powerful audit defense.

Perhaps the most powerful use of Section 9527(a) in the near-term is in the political context. After submission of the accountability workbooks, all states should receive feedback from USDEd - based on this feedback from USDEd it is likely SEAs will be required to go to their legislatures to request amendment of the state education codes or to seek additional dollars for NCLB implementation.

These implicitly required state statutory and appropriations actions provide a unique opportunity for state legislatures to raise the Section 9527(a) question. If a state can demonstrate that not all the costs of NCLB requirements are paid for by the federal government, a state legislature clearly has reasonable grounds to decline to take the action demanded by the federal government, or at least hold hearings on the issue of funding or require the SEA and LEAs to keep detailed records of federal requirements and state/local expenditures. Unlike SEAs, state legislatures are insulated from some of the potentially punitive actions that could be taken against a SEA, and raising the funding issues surrounding NCLB may be uniquely appropriate at the political level. (On average, an SEA receives about 40% of its annual administrative operating budget from federal funds. One nationally recognized governance expert calls SEAs 'wholly owned subsidiaries of the federal government'.)

In addition, the mere filing of a Section 9527(a) suit, using the Leedom exception, even if not successful, would raise public awareness of the funding issues surrounding NCLB implementation. This could ultimately raise the political profile of these issues, possibly resulting in political resolution (perhaps through technical amendments or appropriations increases) of these issues.

Federal lawmakers indicated concern with past federal education programs on the grounds that expansion of certain programs constituted federal intrusion on what has been a traditional State and local issue.

For example, in 1995, four States declined at some point to participate in the federal Goals 2000 program: Alabama, Montana, New Hampshire and Virginia. (Goals 2000 was the Clinton administration's half-step towards imposing voluntary, NCLB-like accountability measures.) The basis of objection to the Goals 2000 program was indicated in a letter from Alabama Governor Fob James to Education Secretary Richard Riley, stating: "the Goals 2000 program represents a new and unprecedented level of potential federal intrusion into State and local responsibility for and control over public education."

Likewise, during the debate over the 1994 Improving America's Schools Act, several federal lawmakers indicated their concern over various provisions of IASA they believed were overly intrusive, especially the "opportunity to learn standards", some of which bear a striking resemblance to the questionable provisions of NCLB). Many of these concerns and arguments could theoretically be raised in the context of NCLB.

After the passage of the House version of IASA, Representatives Boehner (now chair of the House Education and the Workforce Committee), Cunningham, Hoekstra, McKeon, and Castle, among others, stated the following in the context of IASA's proposed "opportunity to learn" provisions (which were stricken from the final bill):

In the concluding paragraph to the above statement, the Representatives stated:

The ultimate requirements of NCLB are significantly more far-reaching and prescriptive, and likely carry a far greater cost to states and localities. Accordingly, the comments above may resonate in the context of NCLB.

VI. Summaries of state legislative actions to implement, review, track or circumscribe NCLB implementation.

NCLB leapt from concept to legislative reality in four months, dragged through seven additional months of conferencing and became law one year after the president announced his vision for a reauthorized ESEA. Little state legislative attention or action has been required until recently. And what form has that action taken?

Fourteen states are considering legislation declaring their concern with the prescriptive nature of the requirements contained in NCLB or over the level of funding provided by the federal government and stating that successful implementation is contingent upon the federal government providing additional funding or flexibility in meeting the requirements. For example, Hawaii House Resolution 117 and House Concurrent Resolution 146 state that the "shortfall [in federal funding] will hinder the State's ability to continue carrying out the goal of the Act." These two resolutions are based on a State Department of Education study that finds that the Department will need an additional $176.3 million in fiscal year 2003-2004 and $260 million in fiscal year 2004-2005 in order to carry out the purposes of the law.

Eleven of the fourteen aforementioned states clearly refer to NCLB as an inadequately funded, or unfunded, federal mandate. This has forced four states-Hawaii, New Hampshire, Utah, and Vermont-to take more aggressive actions and seriously consider not participating in NCLB, and consequently, returning all federal (Title I) funds in order to be spared the law's requirements. Additionally, Minnesota is considering legislation that would prohibit the State Department of Children, Families and Learning (the "SEA of Minnesota), or any other state agency, from entering into a contract or other agreement, under the provisions of NCLB, with an agency of the federal government, including the U.S. Department of Education.

Furthermore, the likelihood that NCLB will cause states to spend additional state funds has prompted two states-Massachusetts and Utah-to recommend that a legislative committee studies the impact the law will have on their respective states and whether declining participation would be an option worth pursuing.

To help curtail the costs associated with NCLB compliance, four states-Colorado, Hawaii, New Hampshire and North Carolina-are considering eliminating the administration or development of current assessments in order to save money that can be redirected toward meeting other requirements contained in the law. This is an unexpected consequence of NCLB.

Concerns over a conflict in current education policy and the new federal requirements have prompted three states-California, New Hampshire and North Dakota-to consider legislation that would create an entity to provide oversight to the state on implementation. New Hampshire has gone as far as to propose studying whether the state should replace all of the statewide assessments for another national standardized test.

As discussed above, Section 9527(a) appears to have the potential to open No Child Left Behind to federal court challenges from states and local school districts which feel that the implementation of the law will incur costs beyond the funding provided by the Congress. The consequences of such legal action would reverberate throughout our state administered education system. But what of legal challenges at the state level?

The NCLB requirement that every child receives an adequate education by reaching a state standard of proficiency in 12 years has the potential to initiate state-by-state adequacy litigation nationwide. (An article by Michael Heise-who served in the Bush (Sr.) Administration as deputy chief of staff to the U.S. Secretary of Education and senior counsel to the Assistant Secretary for Civil Rights-in the Fall 2002 edition of Education Next summarizes the situation as follows. "The mandates of the No Child Left Behind Act, which requires testing in grades 3 through 8 and further labeling of schools as 'failing' for not achieving adequate progress on state tests, will only accelerate the states' development of standards-based accountability systems. The early successes of standards-based lawsuits ensure that the present efforts to improve achievement will have the unintended consequence of stimulating litigation against the states.")

This concern is reflected in a ten-state compilation of adequacy studies by Dr. Bill Mathis (a professor of school finance at the University of Vermont and local school superintendent in that state). His article "No Child Left Behind: What are the costs? Will we realize any benefits?" was published in the May 2003 edition of the Phi Delta Kappan. Dr. Mathis concludes that NCLB will put seven of the ten states reviewed at risk of increasing K-12 appropriations by at least 24% in order to avoid adequacy litigation.

In other words, as a result of No Child Left Behind, the states will likely face state court challenges to their school finance systems just as the federal government could face federal court challenges to the fiscal implications of the law.