A federal judge last week dismissed three of the four claims in Connecticut鈥檚 lawsuit challenging the No Child Left Behind Act, largely on procedural grounds.
The Sept. 27 ruling by Judge Mark R. Kravitz of the U.S. District Court in Hartford, Conn., left both the state and the U.S. Department of Education claiming a victory of sorts.
Connecticut sued U.S. Secretary of Education Margaret Spellings last year in a bid to force the federal government to increase its funding to a level that the state contends would be sufficient to meet the education law鈥檚 mandates, which include yearly testing of most students between grades 3 and 8 and once during high school.
鈥淎n alternative would be to afford greater flexibility鈥� in implementing the law, Connecticut Attorney General Richard Blumenthal said of the state鈥檚 goals, in a statement after the ruling.
Ruling on the Education Department鈥檚 motion to dismiss the lawsuit, Judge Kravitz concluded that he lacked jurisdiction to decide the merits of three of the state鈥檚 claims. For two of those, it was on the basis that the claims were premature because the secretary has not taken any enforcement action against the state.
Formative Tests
In its first claim, the state sought a declaration of the meaning of the No Child Left Behind law鈥檚 language barring 鈥渦nfunded mandates.鈥� The state contends that it is not required to spend its own funds to comply with the education law as the federal Education Department has interpreted it.
And the state disputes those interpretations, which undergird the department鈥檚 mandate that states do annual assessments of special education students at the students鈥� grade levels rather than at the students鈥� instructional levels, the state鈥檚 preference. The state also disagrees that the law requires that students who are not native speakers of English must take math assessments in their first year after arriving in the country and must take reading assessments the following year. The state wants to wait three years before beginning such tests.
The state, in its lawsuit, also disputes the federal requirement that 鈥渘onformative鈥� annual testing occur annually from grades 3 to 8. The state wants to administer what are known as formative tests鈥攖ests designed specifically to help teachers measure students鈥� progress鈥攖o students in alternate years. Connecticut argues that such tests are more useful and less expensive than the nonformative tests.
In practice, however, to avoid penalties that could include the loss of federal aid, Connecticut has obeyed the federal interpretations of the education law.
Thus, Judge Kravitz concluded that he could not properly make a 鈥減re-enforcement declaration鈥� about whether the the secretary of education鈥檚 interpretation of the unfunded-mandate provision was correct.
鈥淭he word 鈥榩re-enforcement鈥� is used because, at this point, the state continues to comply with the act,鈥� the judge wrote.
For similar reasons, the judge also dismissed the state鈥檚 claims based on the spending clause in Article I of the U.S. Constitution, which authorizes spending by Congress and is the hook by which the federal government requires states to accept obligations in exchange for federal funds.
Judge Kravitz also threw out the state鈥檚 claim that the Education Department鈥檚 denial of the state鈥檚 request for waivers was 鈥渁rbitrary and capricious鈥� under the federal Administrative Procedure Act, which sets ground rules for reviews of executive-branch decisions.
On that claim, the judge found no clear legal standards for weighing the state鈥檚 contention that Secretary Spellings failed to 鈥渕eaningfully consider鈥� one of the state鈥檚 waiver requests when she announced that she would refuse to consider any waivers that sought approval of formative testing in alternate grades.
鈥淭o be sure, the secretary and the state disagree about how best to implement the goals of the [NCLB] act,鈥� the judge wrote. 鈥淏ut that policy disagreement can hardly be labeled an abdication of the secretary鈥檚 responsibilities.鈥�
Suit 鈥楢live and Well鈥�?
But the judge kept alive the state鈥檚 claim that the Education Department acted 鈥渁rbitrarily and capriciously鈥� in denying the state鈥檚 request for amendments to its plan for complying with the education law鈥檚 provisions on testing non-native speakers of English and special education students.
The judge said deciding that question would require him to examine the administrative record on those matters. He set Oct. 16 as the deadline for the two sides to agree on a schedule for filing relevant information and for others to file motions and relevant papers to intervene in the case.
In a statement posted on his Web site, Attorney General Blumenthal said his state鈥檚 case against the NCLB law was 鈥渁live and well.鈥�
Acknowledging that the judge had dismissed part of the state鈥檚 claims, Mr. Blumenthal said, 鈥淭his ruling is solely on technical jurisdictional issues: The judge made clear that he has not ruled on the core legal issues of our case.鈥�
The federal Education Department also considered the ruling a win. Katherine McLane, the press secretary for Secretary Spellings, said in a statement, 鈥淚mportantly, the judge agreed that the secretary has discretion to deny a waiver request and that her decision is not reviewable by a court.鈥�
鈥淭he remaining issues in this case have been reserved for another day, after the court considers other information,鈥� Ms. McLane added.
