Does ACA ruling threaten NCLB?

As people sift through the debris of the Supreme Court decision on federal health care law, the question that is coming up in a few places (such as Mark Walsh’s article this morning in Ed Week, in Rick Hess’s blog, and on Twitter) is whether the part of the ruling on Medicaid expansion has implications for other federal applications of the spending clause. By a 7-2 majority, the Supreme Court ruled that the federal government could not threaten all of a state’s Medicaid funding if the state refused to join the expansion provision. The healthy majority on this issue implies this is a potential area of new interest by the Supreme Court in examining federally-funded programs.

This may apply to No Child Left Behind in terms of the dramatic changes it made in requirements of the states. When Connecticut sued the federal government in 2005,1 then-state Attorney General Richard Blumenthal argued two points: first, that Margaret Spellings unreasonably and capriciously denied the state’s request to test on non-consecutive years and to test English language learners and students with disabilities at instructional levels rather than grade levels; second, that the testing mandates violated the Unfunded Mandates Provision of NCLB. The district court dismissed the case in 2006 and again in 2008, on the interpretation of NCLB’s statutory language in the first argument and on being premature in the second (the state had not complained to Spellings about the unfunded mandate issue before suing). Essentially, District Judge Mark Kravitz left the ball in the Department of Education’s court to address Connecticut’s unfunded-mandate complaint and left the door open to another lawsuit should the issue be unresolved.

That door is wide open today and probably does not need action by the Department of Education for a party with standing to assert that NCLB goes too far with additional mandates. Blumenthal’s 2005 complaint was crafted not to undermine the standard interpretation of the spending clause or the gist of NCLB, but that caution may be thrown to the winds by another state official who wants to challenge the additional requirements using yesterday’s decision as a basis. It is clear that NCLB added substantial chunks of requirements to Title I funding, and in light of yesterday’s ruling on the Medicaid expansion, it is not clear which of those requirements might survive court scrutiny.

Addendum (7/2): Benjamin Riley focuses attention on the NCLB waivers instead of NCLB as a set of ESEA amendments. Andy Rotherham is skeptical of all such applications to both NCLB and the waivers. I think Riley is onto something specifically with California–by crafting something outside the bounds of the announced waiver preferences, Jerry Brown is implicitly saying what another older California politician said some years ago: “Do you feel lucky?” Whether the Supreme Court gave him a bullet in the last chamber is an open question.

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Notes

  1. State of Connecticut v. Spellings, dismissed in 2006 by the District Court with an expanded opinion in 2008. []

2 responses to “Does ACA ruling threaten NCLB?”

  1. ceolaf

    The ACA decision gives new grounds for challenging NCLB.

    The new NCLB provisions added to the long string of ESEA reauthorizations — testing, sanctions, privatization, high qualified teachers (ha ha ha ha ha ha ha) — could not have been anticipated when states first accepted ESEA. And these changes were so substantial that the cannot be considered mere modifications. They entirely shifted the nature of ESEA.

    According to the Chief’s opinion, the feds cannot threaten states with the withdrawal of long accepted funds if states do not comply with such fundamental changes to old federal programs that give funds to states. And make no mistake, there is an enormous record from all sides and directions that NCLB marked the greatest change in the federal government’s role in education since ESEA was first passed. The substantial nature of those changes are not debatable.

    And the Chief made explicitly clear that the amount of funding at issue is not relevant.

    By his reasoning, the NCLB additions are simply not constitutional. And this is the Chief appointed by George W. Bush, himself.

    Of course, overturning this stuff is no slam dunk. The conservative members of this Court have a clear history of inconsistent application of principles so that they can constantly arrive at their political and policy conclusions. (I believe Ginberg’s opinion in the ACA goes out of its way to make to that point.)

    And so, the point here is not that NCLB was unconstitutional. Rather, the point is that there is plenty of precedent for the Medicaid expansion, and that for this Court to rule that expansion unconstitutional and NOT strike down an enormous amount of other major legislation will require the kind of intellectual inconsistency and activism that no one says that approve of and which the court is clearly not supposed to do. Every justice has said in his/her confirmation hearings that — of course! — they would never do that.

    But look at the record.