NCLB on the Ropes

The fine print in the federal education law may be its undoing.
April 1, 2008 AT 3:00 AM
Donald F. Kettl
By Donald F. Kettl  |  Columnist
Former dean of the School of Public Policy at the University of Maryland, and a nonresident senior fellow at the Volcker Alliance and the Brookings Institution

It's beginning to look like No Child Left Behind might get left behind. On the very day that President Bush celebrated the sixth anniversary of his landmark education law, a federal appeals court in Ohio upheld a challenge by local schools and the National Education Association claiming that the program was an illegal unfunded mandate.

For Bush, it was a day to commemorate the signature domestic program of his presidency. "I know No Child Left Behind has worked," he told elementary schoolchildren in Chicago. He said it provided a way to hold governments accountable for their money, and "if you have high expectations, it's amazing what can happen."

The federal court didn't disagree with high expectations. But a 2-to-1 majority found that the administration had broken the law in failing to provide states with the funding it had promised to implement its strictures. A provision of NCLB forbids requiring schools "to spend any funds or incur any costs not paid for under this Act."

The decision further tangles an already difficult battle in Congress over reauthorizing NCLB. The National Education Association has stacked up 131 proposed revisions to the law. Education Secretary Margaret Spellings has counterattacked with a tour of the states to try to push the reauthorization through. The Bush administration is working hard to get that done before this fall's election, but so far NCLB appears to be stuck.

Like many other major issues facing Congress, this puzzle will in all likelihood wait for the next president. In their campaigns, Barack Obama and Hillary Clinton differ only in the ferocity of their attacks on NCLB. Obama calls for rewarding schools that meet the standards instead of punishing those that don't. Clinton calls for ending "the unfunded mandate known as No Child Left Behind." John McCain supports NCLB but talks more about improving access and quality than he does about enforcing tough standards.

The fate of NCLB may depend as much on the composition of the next Congress as on the presidential outcome. For the plaintiffs, a Democrat in the White House and a Democratic majority in Congress would open the door to sweeping changes. A Republican president without a friendly Congress would have to find a new compromise. One way or another, if the court's ruling sticks, Bush's original version of NCLB seems doomed.

There is rich irony in the court's decision, which turned the guns of the conservative right back on its central education program. NCLB sought to impose tough standards and parental choice, in the spirit of a long campaign dating from the Republican "Contract with America" in 1994. But that Contract also was explicit about fighting unfunded mandates; in fact, a 1995 act aimed at cutting down on the mandates was one of the few Contract provisions to become law. When Congress followed up on that law by putting a tough and specific unfunded mandate prohibition into NCLB, it was all but inviting the court to fire it back at them.

The dissenting opinion in the Ohio case, drafted by Bush appointee David McKeague, provides an unusually lively take on the puzzle. He suggests that the logic of the majority's opinion is that the federal government would have to fund the full cost of local schools. If their performance fell short of NCLB's standards, he reasoned, local school officials could always complain that inadequate federal funding was the reason. This, McKeague concluded, would create an unstoppable drain on federal revenues that Congress could not have intended. He added that even if Congress had "fully funded" NCLB according to its original provisions, "the funds would still have fallen short of the total purported costs of compliance."

The majority and dissenting opinions frame unpalatable choices for both sides in the battle. The right may have to pony up a lot more cash to keep faith with the unfunded mandate provision or else back away from what it touts as a major legislative success. At a time when there is going to be precious little money for discretionary domestic programs, the left will have to find a new way of holding local schools accountable while inevitably providing them with far less money than they want.