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May 27, 2004

Latest on NCLB unfunded mandates debate

There's been some more noise lately in the ongoing national debate over the costs of the No Child Left Behind Act (NCLB) and whether they represent unfunded federal mandates. Once again, BoardBuzz is taking this opportunity to pull it all together.

Wisconsin: Compliance may not be required
First, last week Wisconsin Attorney General Peg Lautenschlager issued an opinion that the state may be under no legal obligation to implement NCLB if the costs of compliance exceed the federal funding provided under the act. She focused her opinion on the NCLB provision that prohibits federal officials from requiring "a state or any subdivision thereof to spend any funds or incur any costs not paid for under this act." BoardBuzz has discussed this provision and its implications before.

The attorney general's opinion cites three parts of NCLB that are not adequately funded: (1) the cost of testing programs to meet the mandate that all third- through eighth-graders be tested every year in reading and math; (2) the costs of implementing sanctions against schools that do not meet the law's requirement for adequate yearly progress (AYP) in raising student performance; and (3) the cost of sufficient funding "to permit virtually every student in every school to reach 'proficiency' levels on standardized tests."

As usual, much rhetoric ensued. "This is the first ruling of its kind in the United States," Stan Johnson, president of the Wisconsin Education Association Council, told the Milwaukee Journal Sentinel. "We urge school districts or the state to go to court and correct this injustice." Calling the opinion a 'ruling' may be overstating the case, although some commentators have characterized the opinion as an invitation for the Wisconsin Department of Public Instruction or local school boards to sue.

Meanwhile, John Gibbons, a spokesman for the U.S. Department of Education, disputed the notion that NCLB imposes unfunded mandates. He said proposed federal spending increases for next year would bring Wisconsin schools $1.7 billion in federal money, a 45% increase from when the current administration took office. Of that amount, $293 million is specifically earmarked for NCLB programs, he added. More on this line of argument, below.

Ken Cole, executive director of the Wisconsin Association of School Boards, said that any school district contemplating a lawsuit will need to develop a factual record of how much the law is costing and how much the district is receiving. Not an easy task, he cautioned. This may be one of the reasons, despite much speculation, that no direct challenge to NCLB has been filed, although Reading, Pennsylvania's school district did invoke the "full funding" provision of the act as part of its legal challenge to that state's classification of 13 of its 19 schools as having failed to make AYP.

GAO: Technically, it's not an 'unfunded mandate'
Next, on the issue of NCLB's costs to states and local communities, the GAO (General Accounting Office) just released a report on federal unfunded mandates that does not include NCLB on the list. U.S. Education Secretary Rod Paige is making much of the report, which he says exposes concerns over unfunded NCLB costs as a "red herring" by (here we go again) "those who are opposed to accountability and education reform."

But read closely. The headlines don't reflect the word-parsing. You see, the GAO report is a mandatory review of federal programs that uses a technical, legal definition of "unfunded mandate," one set forth in the Unfunded Mandates Reform Act of 1995. Under that definition, no federal funding program that is "optional" is considered an unfunded mandate. If the requirements are a condition of receiving federal funds, they are not mandates. "If states do not want federal support," says Secretary Paige, "they are not required to take the funds. It's that simple."

Mathis: Sorting through the rhetoric
An excellent recent column by William J. Mathis in Education Week offers us all some help in making sense of this issue. Dr. Mathis summarizes the five definitions of "fully funded" that are used in the NCLB debate:

  1. Relative increases: This is Mr. Gibbons' line, above, and it's become one of the standard federal talking points whenever NCLB's costs come in for state and local criticism. Problem is, this has nothing to do with the question of whether the funding is equal to NCLB's costs. And, by the way, the increases represent less than 1 percent of total education funding, and the federal share has decreased from 9.8 to 7.4 percent.

  2. Authorization vs. appropriation: This is the point, which NSBA has made, that the money actually appropriated by Congress for NCLB never came close to that authorized when NCLB was passed. Dr. Mathis rightly notes that this argument, too, is disconnected from the real costs of educating children. On the other hand, we think it's fair to point out that the politicians trumpeted the authorization levels when they passed NCLB. They themselves identified these amounts as what it would take to succeed. That kind of gap between rhetoric and reality is the reason we weren't about to dance in the streets over the Senate IDEA bill's authorization level.

  3. The law's definition: This one seldom is used, but according to Dr. Mathis, the law says each child living in poverty is eligible for an extra 40 percent of the state's average per-pupil funding. He says this would mean that NCLB currently is funded at just 41 percent of its costs.

  4. "Add-on" administrative costs: This is often used by NCLB defenders, especially think tanks, who say we should only count the added costs of doing the actions specifically mandated by NCLB, not the costs of leaving no child behind as defined by the act. This is a "foggy" area according to Dr. Mathis, who notes that the conclusions of the seven state studies of these NCLB costs have averaged out to 3 percent new money to implement NCLB. That would mean federal funding should double to meet just the administrative costs.

  5. In the real world, Dr. Mathis concludes, none of the above definitions really gets at the heart of the matter, which is what it actually will cost to educate all students to meet academic standards. Twenty-eight funding adequacy studies in 20 states have used different methodologies, but they all indicate we're talking about big bucks. The median increase is 30.2 percent.
As BoardBuzz has observed, the actual costs of teaching all children to meet academic standards has become the focus of adequacy litigation in many states. The studies Dr. Mathis points to have been used in the lawsuits, sometimes against the very states that commissioned the studies in the first place and then wished they hadn't. NSBA has focused on the actual costs approach as a matter of sound school board planning. Check out this Action Alert setting forth the major areas of NCLB expenses that school boards need to account for.

Moving forward
Maybe there really are voices among the NCLB critics out there who, at some visceral level, just don't like the idea of "accountability and reform." But by and large, the most telling criticisms of NCLB have come from those who most strenuously are striving to fulfill its promise—those who are actually responsible for the education of real children in the real world. NSBA has proposed reasonable improvements to NCLB that will make it more workable while preserving its focus on accountability for serving all of our children. It's focused much effort on helping school districts understand and work toward fulfilling the promise of NCLB, including by providing resources on how school boards can use NCLB as a governance tool.

But, yes, NSBA will continue to call the federales on the bottom line, which is a reality in education just like it is everywhere else. It is unacceptable to turn a blind eye to meeting the needs of all students. But it is equally unacceptable to make promises to America's children and then not come through with the resources needed to fulfill the promises. And it is unacceptable to send a message to financially strapped school districts—especially those facing the most daunting educational challenges—that maybe their best bet is to turn down desperately needed funds.

Posted May 27, 2004 12:00 AM