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Supreme Court Declines to Hear NEA's Challenge to NCLB

It's the end of the line for the National Education Association-backed legal challenge to the No Child Left Behind Act.

The U.S. Supreme Court today refused to hear the appeal of the NEA and nine school districts in Michigan, Texas, and Vermont in a suit that challenged the federal education law as an unfunded mandate. The justices issued no comment in declining the appeal in School District of the City of Pontiac v. Duncan (Case No. 09-852).

The full U.S. Court of Appeals for the 6th Circuit, in Cincinnati, deadlocked 8-8 over the case last October, which resulted in the affirming of a federal district court's 2005 ruling that dismissed the case. But seven of those judges signed on to opinions accepting the NEA's view about the law's "unfunded mandates" language, giving the union hope that the justices might be interested in taking up the case.

In its appeal, the NEA urged the justices to take up the question of whether a provision in NCLB against requiring the states or school districts "to spend any funds or incur any costs not paid for under this act" means that the U.S. secretary of education may not force them to spend their own money to comply with the law's requirements.

"The resolution of this question is of enormous consequence to states and school districts," the appeal said.

In a brief filed in May by U.S. Solicitor General Elena Kagan on behalf of Secretary of Education Arne Duncan, Kagan urged the justices not to hear the union's appeal.

NCLB "expressly refrains from dictating funding levels, and instead grants states and [school districts] unprecedented flexibility to target federal dollars to meet state and local priorities," Kagan said in the brief. "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."

Kagan, who has been nominated to succeed retiring Supreme Court Justice John Paul Stevens, has stepped aside from the solicitor general's post.

The NEA and its fellow plaintiffs challenged the NCLB law during President George W. Bush's administration. NCLB is the current version of the Elementary and Secondary Education Act, which is overdue for reauthorization in Congress.

[Note: I am the co-author of a forthcoming book about the National Education Association and its longtime general counsel, Robert Chanin, who initiated and was involved with the NCLB lawsuit for several years but retired at the end of last year.]

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