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The Supremes Pass on NCLB

Note: Pat McGuinn, a professor at Drew University, is guest-posting this week while Rick Hess is on a consulting project in the Republic of Georgia.

Thanks very much to Rick for the opportunity to share some thoughts with you on education politics and policy while he is away. Last week, the U.S. Supreme Court declined to hear the NEA's lawsuit (first filed in 2005) challenging No Child Left Behind (NCLB) as an unfunded mandate. This is one of those instances where inaction is actually quite significant, as some judicial observers had thought that conservatives on the court looking for a major federalism case might seize on the NCLB suit to make a dramatic reinterpretation of the constitutional boundaries of national power. The timing of this decision may also prove to be important since the slamming shut of the judicial door occurs just as the ESEA reauthorization debate picks up steam. With a judicial remedy now seemingly off the table, opponents of NCLB style accountability will turn their full attention to Congress.

One interesting fight to watch in this regard will be whether to delete or revise the unfunded mandates provision in ESEA on which the NEA lawsuit was based. Ironically, the clause was added by Republicans in the mid-1990s as a way to ensure that ESEA did not require states or districts to "spend any funds or incur any costs not paid for under this act." While proponents of federal accountability will want to close this escape hatch and forestall potential future legal action by getting rid of this language, conservative states' rights defenders and liberal anti test-based accountability folks will no doubt want to preserve and even strengthen it.

In this sense, the NEA's NCLB lawsuit highlights the discombobulated nature of education politics at the beginning of the twenty-first century. Here you have the NEA, a key member of the Democratic coalition, using a states' rights provision crafted by conservatives to file suit against a law intended to close racial and socio-economic achievement gaps, and a Democratic administration siding with its Republican predecessor in calling for the dismissal of the union's case. Teachers unions passionately advancing a states' rights argument against the federal government in education is something akin to conservatives' use of equal protection in Bush v. Gore to justify federal intervention in Florida's election—it seems a wee bit incongruous with past positions.

Since LBJ's Great Society, the Democratic Party has used the grant-in-aid system as the cornerstone of the welfare state and its efforts to push states to provide protections and benefits to disadvantaged populations. This has been true in education as well, with teachers unions (a key constituency of the Democratic Party) supporting the use of federal power to deliver increased resources and targeted programs as well as mandates for states in a wide variety of areas. But the teachers unions (particularly the largest, the NEA) are not keen on test-driven accountability of the sort that was mandated in NCLB. Unable to defeat NCLB in the legislative process, the unions turned to the courts.

The crucial issue was whether the federal government has to provide funding to states only for the specific mandates contained in the law (i.e. annual testing) or also to realize the law's broader goal of closing achievement gaps. The Bush and Obama administrations argued the former interpretation while the union argued for the latter. When the lawsuit reached the U.S. Supreme Court in 2009, the Obama administration filed a brief urging the Court not to hear the union's appeal. U.S. Solicitor General (and now Supreme Court nominee) Elena Kagan wrote in the brief that, "The act moves from a dollars and cents approach to education policy to a results-based approach that allows local schools to use substantial additional federal dollars as they see fit in tackling local educational challenges in return for meeting improved benchmarks."

Had the NEA lawsuit been successful—and it is important to note that the federal appeals court deadlocked 8-8 and that 7 of the judges agreed with NEA's view of NCLB as an unfunded mandate—the implications would have reached far beyond education, potentially resulting in a dramatic reduction in the ability of the federal government to attach mandates to any federal grants. Teachers unions—organized labor—would thus have been responsible for undermining the key mechanism for governing the federal welfare state! The entire episode speaks to the growing divide among Democratic Party elites over the appropriate role for the federal government in school reform, a topic that I will take up in more detail later this week.

--Pat McGuinn

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