Education as Domain of the States; NCLBA as an Unfunded Federal Mandate

The United States Constitution strikes a balance between powers reserved for the federal government, and those given to the states. The Tenth Amendment provides, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The Supreme Court has established in rulings that the Constitution does not implicitly or explicitly delegate education matters to the federal government. In fact, in the landmark Brown v. Board of Education case from 1954, the Supreme Court recognized, “Education is perhaps the most important function of state and local governments.” Nevertheless, the federal government has often involved itself in education policies without running afoul of the Constitution.

Congress is able to enact legislation over education because of another constitutional provision, the spending clause in Art. I, sec. 8, clause 1: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States….” Under the spending clause, if federal funds are merely an inducement to meet certain conditions, the federal government may intrude on an area normally reserved to the states.

The Supreme Court has held that Congress must meet certain requirements where it relies on the spending clause to enact legislation over which it has no specific authority. Such legislation must:

  • Not be prohibited by other constitutional provisions
  • Be in pursuit of the “general welfare”
  • Be related to the federal interest in particular national projects or programs
  • Be unambiguous in describing the conditions for the states’ receipt of federal funds, to enable states to knowingly decide to participate or not

Critics of NCLBA charge that the law is unclear in describing what states must do to receive federal funds. Critics support this contention by referring to the Department of Education’s massive efforts to clarify the act, as evidenced by regulations, guidance documents, and letters and other communication to various state and local officials.

Virginia politicians called No Child Left Behind “the most sweeping intrusions into state and local control of education in the history of the United States.” The Republican-controlled House of Delegates formally asked Congress to exempt it from requirements of the law, because of the way it complicates and conflicts with state education programs to raise standards.

In 2005, Utah approved legislation to allow schools to prioritize the state’s standardized testing system ahead of the NCLBA requirements. HB1001 requires school officials to “provide first priority to meeting state goals, objectives, program needs, and accountability systems as they relate to federal programs, and provide second priority to implementing federal goals, objectives, program needs, and accountability systems that do not directly and simultaneously advance state goals, objectives, program needs and accountability systems.” Numerous other states have considered or are considering similar measures, including opting-out of NCLBA completely.

Often related to the criticism that the federal government is interfering with the traditional domain of the states, some critics contend that No Child Left Behind has resulted in billions of dollars of unfunded mandates. In other words, the Congress has failed to provide the funding states need to meet mandates in the law. In April 2005, the NEA, on behalf of a number of school districts, sued to exempt the school districts unless program requirements are funded by Congress. A federal judge dismissed the lawsuit in November, but Connecticut filed a similar suit in August. Supporters of the law argue that NCLBA does not present an unfunded mandate, because states are not required to adopt the federal program.

In 2004, Texas was fined $840,000 for exempting too many special education students from standardized testing. Moreover, in 2005 the Department of Education announce it was withholding some Title I funds in Minnesota, because of noncompliance with the law. Some schools have taken matters into their own hands. Consolidated High School, District 230 in Orland Park, Illinois, chose to reject $136,000 in Title I funds to avoid being forced to offer supplemental services and school choice after failing to make their adequate yearly progress goals. Another Illinois school in Palatine returned $238,000 in Title I money to avoid the cost of sanctions for failure to make AYP.


Inside Education as Domain of the States; NCLBA as an Unfunded Federal Mandate