No Child Left Behind Act: An intrusion on state's rights?
By Robert S. Sargent, Jr.
web posted March 7, 2005
On January 29 of this year, the Executive Committee of the National Conference of State Legislatures (NCSL) unanimously approved the Final Report of the Task Force on No Child Left Behind (The Report). According to their website (www.ncsl.org, where you can download the whole report) the "NCSL is a bipartisan organization that…provides research, technical assistance and opportunities for policymakers to exchange ideas on the most pressing state issues." The Report is divided into six chapters that analyze in detail the problems state legislators have with mainly two questions: "What do we need to do to make the law work and how can we effect improvements to it through additional congressional or administrative actions?"
According to The Report, the goal of the No Child Left Behind Act that President Bush modeled after his program in Texas is "…to close or dramatically narrow the differences in achievement among American students that cross lines of skin color, ethnicity, immigrant status and wealth." In this column I will summarize the problems given in The Report, and then show how a state is currently dealing with these problems.
Starting with Chapter 2 (I will come back to Chapter 1) the first problem is how to deal with the Act's standardized testing and "...holding schools accountable for their progress." It seems that there is "…an unnecessary level of rigidity and questionable methodology." For example, "NCLB mandates that schools be evaluated by comparing successive groups of students against a static, arbitrary standard, not by tracking the progress of students over time." And, "The law improperly identifies schools as ‘in need of improvement' by creating too many ways to ‘fail.'" Finally, "The law allows students to transfer from schools found to be in need of improvement before the school has an opportunity to address specific individual deficiencies."
Chapter 3 deals with the fact that certain aspects of NCLB are in conflict with the Disabilities Education Act. Chapter 4 addresses the fact that the NCLB "…imposes a uniform set of requirements that all schools must meet," while not recognizing that "Many urban and rural schools face unique challenges in educating students." Chapter 5 deals with the "highly qualified teacher clause" that "…is particularly problematic for hard-to-staff schools." And Chapter 6 deals with the costs of complying with the Act. "In the best case scenario, federal funding marginally covers the costs of complying with the administrative processes of the law."
Now Chapter 1: Is the Act itself constitutional? Past Supreme Court decisions have held that it is constitutional if Congress blackmails the states by withholding money if states don't comply with a mandate. For example, if North Carolina doesn't pass a state law that meets Federal requirements for legal alcohol level when driving, they will lose federal highway money. However, the federal government cannot coerce a state into complying with a mandate. We will see that last year when Utah asked the question, what if we just opt out of the Act? "…the U.S. Department of Education responded that not only would Utah lose its Title I funds, it would forfeit nearly twice that much in other formula and categorical funds…" That's coercion! (A bill opting out of the Act was introduced last year by Rep. Margaret Dayton. According to Rep. Dayton, the feds contribution to Utah of $105 million is "…about 5 percent of our state budget, but NCLB directs 100 percent of our state education. I didn't feel like it was worth that 5 percent." The Utah Senate didn't agree.) The Report also addresses the other constitutional issue: the 10th Amendment. The Act "…pits the 10th Amendment, which reserves the powers to the states, against the spending clause of Article I." For us Constitutional Conservatives, this is nonsense. The 10th Amendment couldn't be plainer: Education is not an area that's delegated to the United States, therefore it is an area reserved to the states. Period. Unlike idealists like me, I suppose that the NCSL must deal with reality. There actually is a Department of Education. Oh, well.
Utah (the state that gave Bush his largest margin of victory) in just the last couple of weeks, is again challenging the Act. According to the Salt Lake Tribune, on February 18, "Members of the Senate Education Committee unanimously passed two Utah House measures meant to keep the federal No Child Left Behind Act at bay. One was a resolution…to recognize Utah's efforts to measure student competency and sustain quality schools. The other was… (an) effort to mediate the power struggle between state priorities and President Bush's federal mandate to reform public schools with imposed standardized tests." In other words, "state priorities trump NCLB – even if it means breaking the federal law."
So how has Washington reacted? Tim Bridgewater, Gov. Jon Huntsman Jr.'s education deputy said the bill "has been helpful in opening some dialogue with the Department of Education." So on February 24, the Tribune wrote, "Federal education officials say Utah's 8,500 veteran elementary school teachers are highly qualified after all." On other issues? Bridgewater said, "We hit a bit of an impasse…" Last week, Utah's unanimously passed bill completely opting out of the Act now had the votes in the Senate, but the Bush administration put pressure on Governor Huntsman, and the governor convinced the legislature to take no more action until April 20 so that they would have more time to negotiate with the feds.
What does all this mean? When a state like Utah with legislators like Dayton, stands up to the federal government, it can get results. It can also empower other states to action. Kim Cobb in the Houston Chronicle wrote: "Fifteen states have introduced legislation in the first two months of this year challenging the law at a variety of levels…(and) many state leaders are taking their cue…from Dayton."
For us Republicans who say we admire a Joe Lieberman because he has principles that he won't compromise, even to his party, we have to admire Ms. Dayton for her efforts to defend her state even against her president. And for us constitutionalists, we have to love a legislator who places her state's priorities over the federal government. High five to the 10th Amendment! (Will Utah opt out in April? Stay tuned.)! 
Robert S. Sargent, Jr. is a senior writer for Enter Stage Right and can be reached at rssjr@citcom.net.
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