No Lawsuit Left Behind

States are suing Uncle Sam over education mandates in the "No Child" act.

A grassroots rebellion is under way against one of President Bush's signature legislative achievements. And it's starting, of all places, in Utah—Bush's most supportive state in last year's election. "Our duty is to stop the federal encroachment that's been taking place for the last 40 or 50 years," state Rep. David Cox, a Republican, told a local television reporter.

At issue is the No Child Left Behind Act, passed in 2001 with overwhelming support from Democrats and Republicans. Sen. Edward Kennedy, D-Mass., voted for it. Sen. Hillary Rodham Clinton, D-N.Y., voted for it. So did Sen. John Kerry, D-Mass.

The law aims to make schools more accountable by requiring them to show "adequate yearly progress" in student achievement, as measured by annual tests. What about the tradition of local control of schools? It's "really hard for people sitting in Washington always to know what's best in Utah for our students," said Julie Austin, a mother of six and a volunteer at Amelia Earhart Elementary School in Provo.

School authorities complain that the federal government is not flexible enough in making exceptions for students with special needs. Earhart, for example, is in danger of being labeled a "failing school." Principal Rosemary Smith says, "The only category that we failed in was children with disabilities. There were three children who didn't make the mark in that testing category."

Meanwhile, state politicians are demanding to know who's going to pay for all those tests. Last week, the National Education Association joined school districts in Michigan, Texas, and Vermont in suing the federal government. The suit argues that the law has become an unfunded mandate, despite its provision that no state or school district can be forced to spend money for costs not covered by the federal government.

"Parents ... across the country are fed up with Washington and the costly regulations of the so-called No Child Left Behind law," NEA President Reg Weaver said. "Parents' tax money is getting steered away from their children's classroom and going toward bureaucracy and boosting the profits of testing companies."

Kerry turned critical more than a year ago. During a presidential primary debate, he said, "I fought to help pass it. I want standards. I want accountability. But you cannot do it without resources, and you also can't do it in a way where you turn schools into testing factories."

Secretary of Education Margaret Spellings insists that the feds are paying what they are required to pay. The Government Accountability Office "has found that No Child Left Behind, and the requirements ... that states must do, are very adequately funded," she said on April 7.

Connecticut is considering filing a lawsuit charging that the tests will cost the state $8 million more than the feds have come up with. That prospect drew a sharp rebuke from Spellings. "I think it's un-American, I would call it, for us to take the attitude that African-American children in Connecticut, living in inner cities, are not going to be able to compete," she said on The News Hour With Jim Lehrer. "That's the notion—'the soft bigotry of low expectations,' as the president calls it—that No Child Left Behind rejects."

Connecticut Education Commissioner Betty Sternberg delivered a rejoinder to Spellings. "I reap from that [statement] that we are bigoted in some way, that we have low expectations, that we are un-American," Sternberg told a TV reporter. "It seemed like an illogical leap ... seemed more like name-calling."

Sternberg met with Spellings in Washington last week. The Connecticut commissioner came away with neither an apology nor a concession. Connecticut's attorney general says he expects to file a lawsuit "imminently."

More than a dozen states are considering challenges to No Child Left Behind. Utah, the reddest of the red, was the first state to act. On April 19, the Utah Legislature voted to instruct state authorities to ignore provisions of the No Child Left Behind Act that are not fully funded by the federal government and to give Utah's own school standards top priority.

State Rep. Margaret Dayton, the Republican who wrote the legislation, said, "While the federal government is certainly justified in encouraging us to make sure we don't leave any student behind, I don't think there was any program already in place in Utah that did."

One provision of the law remains popular with Democrats: the reporting of student achievement data separately for each racial group. Duane Bourdeaux, a Democrat who is Utah's only African-American state representative, sponsored an amendment to the Utah bill that would have preserved reporting by racial categories. "There are a lot of problems with No Child Left Behind," he told The New York Times, "but for the first time, the federal government has taken a stand to say, 'We have an achievement gap that needs to be dealt with.' " Bourdeaux's amendment failed.

Defiance of the Bush administration! In Utah! Where will it all end? "I think the federal government has overstepped its bounds by going into this state's rights issue," Dayton said.

So what if Republicans control the entire federal government? States still don't like being told what to do.