Wisconsin Attorney General Criticizes NCLB

On May 12, 2004, Wisconsin's Attorney General, Peg Lautenschlager, issued a letter declaring that the federal government's enforcement of NCLB, without fully funding its mandates, violates a provision of the NCLB law itself.  Her letter also asserts that, with or without adequate funding, Congress may have acted beyond its authority in requiring states to change their educational standards and procedures pursuant to NCLB.  The letter, which might be viewed as highly partisan, was written in response to a request by State Senator Fred Risser (D-Madison) to analyze the constitutionality of Wisconsin's obligations under NCLB.

U.S. Secretary of Education Rod Paige, during a visit to Milwaukee, dismissed Ms. Lautenschlager's criticism, asserting that NCLB is fully funded and that he is confident it could withstand any legal challenge. 

Nonetheless, the letter raises a number of issues that many states are now grappling with, such as the cost of NCLB implementation and possible legal actions in response to NCLB.

Costs of NCLB

The Attorney General discussed three areas where she claims that NCLB imposes additional costs on Wisconsin:  (1) testing, (2) implementing NCLB sanctions and (3) NCLB's proficiency standard.  The letter cites United States General Accounting Office (GAO) estimates that the nationwide cost of developing and administering new tests will be anywhere from $1.9 billion to $5.3 billion from 2002-2008.  The Attorney General remarks that these estimated costs exclude the “significant lost opportunity cost of…requir[ing] schools and districts to devote school days to test preparation and administration rather than to instruction.”

According to the Attorney General, it is much more difficult to assess the cost of sanctions; however, this cost will likely increase as more schools fail to make “adequate yearly progress” (AYP).  Noting that Wisconsin has strict revenue limits, the Attorney General's letter questions whether federal courts would have the constitutional authority to order districts to raise mill rates or property taxes, disregarding voter action or a school district's autonomy.

Ms. Lautenschlager contends that the highest cost item by far under NCLB is that of attaining 100% proficiency by 2014.  Although Wisconsin has not analyzed the cost of complying with NCLB, an adequacy cost study has been done in the state. This costing-out study concluded that, in order to meet state learning standards, an additional $2,880 per pupil or an aggregate of $2.5 billion must be spent.  Currently, the letter states, Wisconsin receives $152 million from the federal government to comply with NCLB.   So far, Wisconsin has 68 schools and 12 districts that have failed to make AYP for 2 years, and an additional 58 schools and 21 districts that have failed to make AYP for one year.

The letter also cites other studies of NCLB costs, including an Ohio NCLB costing-out study prepared earlier this year and a more limited study conducted in Minnesota this year.  The letter also highlights a projection to be published in the Journal of State Governments that complying with the proficiency requirement will require a 27.7% increase in educational spending.

Violation of NCLB and the U.S. Constitution

As noted in the letter, Section 7907(a) of NCLB states that, in order to comply with NCLB, no state or locality is required to spend any money or incur any expense not paid for by federal funding.  The Attorney General contends that the plain language of the law can only mean that Congress intended to tie NCLB's obligations to federal funding of those obligations.

Even if NCLB is fully funded, the Attorney General claims that Congress has exceeded its authority in imposing on local schools specific requirements regarding curriculum and testing.  “Requiring such significant changes in a state's educational system and “values”  …may be beyond Congress' legislative powers,” she writes.

Potential Wisconsin Action

In her letter, the Attorney General opines that Wisconsin may be able to bring an action for a judgment declaring that the federal government has violated Section 7907 of NCLB, if it can prove current harm to the state.  She recommends analyzing the cost of complying with NCLB and exploring further the possibility of taking legal action.

Legal action under Section 7907(a) of NCLB is not unprecedented. In a lawsuit filed in December 2003 against the State of Pennsylvania, the Reading school district charged that the state imposed an unfunded mandate on the district, in violation of Section 7907(a), by requiring the district to comply with NCLB without providing adequate funding.

Prepared by Wendy Lecker, May 27, 2004