NCLB Rebellion Heats Up as Connecticut Sues Secretary Spellings

On August 22, Connecticut's Attorney General Richard Blumenthal announced that the state of Connecticut had filed its long-threatened lawsuit against Margaret Spellings in her official capacity as Secretary of Education. Connecticut's complaint, which faults the federal government's interpretation of the No Child Left Behind Act (NCLB) and claims the state is being illegally required to spend money in order to comply with the law, comes several months after Blumenthal first announced his intention to sue. Though unable to find other states to join the suit, the intervening months in Connecticut witnessed increasing frustration with the implementation of NCLB, and allowed Attorney General Blumenthal and Betty Sternberg, Connecticut's Commissioner of Education, to gain the support of the governor and the state legislature.

“Burdensome” Federal Requirements

The complaint, which begins by stating that “For over twenty years, the plaintiff State of Connecticut has implemented effective assessment and accountability measures for its school districts,” faults the federal interpretation of NCLB for being “arbitrary, capricious and contrary to law.” Specifically, Connecticut points to Secretary Spellings' ability to grant waivers from specific requirements of the law as an act of interpretation, thus subjecting it to NCLB's “Unfunded Mandates Provision,” which states

Nothing in this [law] shall be construed to authorize an officer or employee of the Federal Government to mandate, direct, or control a State, local educational agency [usually school districts], or school's curriculum, program of instruction, or allocation of State or local resources, or mandate a State or any subdivision thereof to spend any funds or incur any costs not paid for under this [law].

Connecticut, like many other states, has submitted numerous waiver requests to the federal Education Department (ED). Connecticut 's primary request was for an exemption to NCLB's requirement that states test students every year in grades 3-8. Connecticut has long used alternate-year testing (in grades 4, 6, and 8), and argues that adding tests for three additional grades is both academically useless and prohibitively expensive. However, despite several attempts to obtain such a waiver, Secretary Spellings has repeatedly and vehemently denied Connecticut 's requests, despite the state's claims that they are “reasonable [and] research-based.”

Connecticut has also requested modification to the requirements for testing special education students and English language learners. Under NCLB, Connecticut would be forced to develop new tests for both groups, a very large cost for which federal funds are not available. Though Secretary Spellings appeared to give these requests more extensive consideration, they were ultimately rejected. Connecticut argues that its methods for dealing with these subgroups are superior to those required by NCLB, and render the additional expense of complying with the law thoroughly useless.

The Costs of NCLB

Connecticut is one of a growing number of states that has performed its own costing-out study on the costs of complying with NCLB as it is currently interpreted. The study, which focused only on administrative costs such as test development and administration, concluded that, without the requested waivers, NCLB requires Connecticut to spend $41.6 million above the level of funding provided by the federal government.

When challenged by state officials to justify the huge expenditure involved in developing new tests, Deputy Secretary of Education Raymond Simon suggested that Connecticut produce tests without written response questions, which are prominently featured in the Mastery Tests that Connecticut currently uses. Such tests would be cheaper to produce, but Connecticut officials balked at the idea of spending still significant money on tests that are less rigorous and less useful.

The Legal Argument

According to Connecticut's complaint, Secretary Spellings' refusal to grant Connecticut its requested waivers is “arbitrary and capricious,” and has forced Connecticut to expend state funds, thereby violating the “Unfunded Mandates Provision.” The complaint claims that the state of Connecticut, its legislature, and its school children are all harmed by this violation, which will force the state either a) to divert funds from fundamentally important programs in order to fund these “arbitrary” elements of the federal law, or b) to face harsh sanctions and possible loss of federal funding for failure to comply with NCLB.

The state further alleges that Secretary Spellings is “exceeding her powers under the Spending Clause and violating the Tenth Amendment of the U.S. Constitution by changing one of the conditions pursuant to which States accepted funds under the NCLB.” In other words, Connecticut claims that its participation in the No Child Left Behind Act was contingent upon an understanding that the “Unfunded Mandates Provision” would protect the state from being forced to spend state funds. This is a unique argument amongst NCLB lawsuits, and effectively addresses some of the challenges to the National Education Association's lawsuit against NCLB, which were raised by ED.

Connecticut seeks relief through an order stating that they are not in violation of the federal law, and enjoining ED from exacting penalties or enforcing sanctions for compliance failures that result from insufficient federal funds. They also request that the court order ED to grant the waiver requests in question.

ED's Reaction

As reported by the Associated Press, Secretary Spellings downplayed Connecticut's lawsuit by labeling it a “red herring” and questioning Connecticut's motives. Her comments were consistent with those that characterized the debate over Connecticut's waiver requests, which criticized the state's achievement gaps and devolved into a somewhat rancorous dispute. Despite Spellings' dismissiveness, this suit reflects an ever-growing frustration with the federal act, which has been challenged by a growing number of state legislatures. Connecticut is the first state to sue over the federal act, but many expect other states to join the fight as the case proceeds.

Prepared by Nelly Ward, August 24, 2005