So the Sixth Circuit Court of Appeals has revived the 2005 “unfunded mandate” NCLB lawsuit, and here is where things get interesting, because the original complaint is an interesting argument about statutory limits to the power of the purse, tied specifically to NCLB language that lifted mandates that were not paid for. Given the language of the appeals decision, this is going to be a lot more interesting on reargument, and with the current composition of the Supreme Court, I refuse to hazard any prediction about ultimate disposition.
But it won’t get to the Supreme Court, because NCLB will be rewritten before it gets that far. Here are the real consequences of the lawsuit: If the plaintiffs win at the lower-court level or if the Sixth Circuit steps in for the plaintiffs in a substantive manner (as opposed to the procedural decision this week), that victory would shift the initiative in reauthorization. On the one hand, those critical of NCLB provisions will be able to be patient, in contrast to supporters of most of the current structure. On the other hand, without the pressure ratcheting up on schools, NCLB critics may not have quite as much organizing energy behind their battle, and that energy may shift to those who support most of the status quo.