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Court Upholds Dismissal of Conn.'s NCLB Suit

A federal appeals court has upheld the dismissal of Connecticut's lawsuit challenging the No Child Left Behind Act, although the court made clear that the state should be able to pursue some of its claims administratively against the U.S. Department of Education.

A three-judge panel of the U.S. Court of Appeals for the 2nd Circuit, in New York City, agreed with a lower court that the central claim in Connecticut's 2005 lawsuit was premature because the U.S. secretary of education had not taken any enforcement action against the state.

The lawsuit alleges that the federal government may not require states to spend their own money on NCLB requirements because of the statute's language barring unfunded mandates.

In 2005, the state asked then-U.S. Secretary of Education Margaret Spellings to waive a mandate for annual testing of students, Connecticut wanted to test every other year and be relieved of certain requirements for testing special education students and English-language learners. Spellings turned down the state's requests for waivers and amendments to its state plan, and the state sued. The state claims it has spent at least $41.6 million of its own funds from 2002 to 2008 to comply with NCLB.

A federal district court in Hartford, Conn., ruled in 2006 that the claims based on the unfunded-mandates provision were not "ripe" for judicial review because the secretary had taken no enforcement action against the state. In a separate 2008 decision, the district judge rejected claims in the lawsuit seeking greater flexibility on testing special education students and ELLs.

In its July 13 decision in State of Connecticut v. Duncan, the 2nd Circuit panel ruled unanimously for the Education Department and Spellings's successor, Secretary Arne Duncan.

"Although the state is correct that the secretary's interpretation of the Unfunded
Mandates Provision is clear and that the parties have a concrete dispute about its meaning and constitutionality, the District Court did not err in concluding it would benefit from a more developed administrative record and that therefore this case is not yet fit for review," said the opinion by U.S. Circuit Judge Barrington D. Parker.

For example, Judge Parker said Connecticut and the federal department disagree about whether the testing of special education students would cost more than the state's current Title I funding allocation. An administrative proceeding would be a "more suitable venue" than the court for initially addressing such disputes, he said.

The state may also raise its arguments about the unfunded-mandates provision in an administrative hearing before the department, the court said.

The court said it was modifiying the district court's dismissal order to make clear that some of the state's claims were being dismissed "without prejudice," meaning the state can pursue them in administrative proceedings.

Connecticut Attorney General Richard Blumenthal, a Democrat who is pursuing a U.S. Senate seat from his state, issued a statement saying he will continue to fight for "full funding" of NCLB.

Last month, the U.S. Supreme Court declined to hear an appeal from the National Education Association over the dismissal of its legal challenge to NCLB, which was also based on the unfunded-mandates provision.


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