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THREE ESSAYS ON EDUCATION LAW AND POLICY: STATE COURT
DEFINITIONS OF EDUCATIONAL ADEQUACY; THE NO CHILD LEFT
BEHIND ACT UNFUNDED MANDATE DEBATE; AND CONCEPTIONS OF
EQUAL EDUCATIONAL OPPORTUNITY FOR STUDENTS WITH
DISABILITIES UNDER THE INDIVIDUALS WITH DISABILITIES
EDUCATION ACT AND THE NO CHILD LEFT BEHIND ACT.

By

Regina R. Umpstead

A DISSERTATION
Submitted to
Michigan State University
in partial fulfillment of the requirements
for the degree of

DOCTOR OF PHILOSOPHY

Educational Policy

2008

ABSTRACT

THREE ESSAYS ON EDUCATION LAW AND POLICY: STATE COURT
DEFINITIONS OF EDUCATIONAL ADEQUACY; THE NO CHILD LEFT BEHIND
ACT UNFUNDED MANDATE DEBATE; AND CONCEPTIONS OF EQUAL
EDUCATIONAL OPPORTUNITY FOR STUDENTS WITH DISABILITIES UNDER
THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT AND THE NO
CHILD LEFT BEHIND ACT.

By
Regina R. Umpstead

My dissertation consists of three essays on education law and policy. The first
essay addresses the issue of how state courts define educational adequacy by analyzing
court opinions from twenty-six states. The second essay answers the question of whether
the No Child Left Behind Act is an unfunded mandate by evaluating the arguments made
in the two federal lawsuits that make this claim. The third essay investigates the tensions
in federal special education policy under the Individuals with Disabilities Education Act
and the No Child Left Behind Act by focusing on their assessment policy and

conceptions of equal educational opportunity.

Chapter 1: Determining Adequacy: How Courts are Redefining State Responsibility
for Educational Finance, Goals, and Accountability

This essay compiles information from twenty-six states with educational adequacy
court decisions. In these decisions, courts are asked to declare their state’s finance system
unconstitutional because it is inadequate to provide a basic quality education to all
students. Although educational funding is the major component of the adequacy court
decisions, this work also identifies educational goals and accountability as important

elements of a state’s duty to supply an adequate education to all students.

Chapter 2: The No Child Left Behind Act: Is it an Unfunded Mandate or a Promotion
of Federal Educational Ideals?

This essay analyzes the No Child Left Behind Act (N CLB) unfunded mandate
debate using the two federal court cases on the topic, School District of Pontiac v.
Spellings and Connecticut v. Spellings. The plaintiffs in these lawsuits allege that
NCLB’s unfunded mandate provision should be interpreted to not require states or local
educational agencies (LEA) to spend any of their own filnds complying with the law,
instead the federal government must provide all of the necessary money. The article
concludes that NCLB is not an unfunded mandate. Its unfunded mandate provision is
only intended to limit federal officials from adding requirements that were not originally
contemplated in the law. States and LEAs must perform the obligations they assumed

under NCLB, regardless of how much federal funding they actually receive.

Chapter 3: The Individuals with Disabilities Education Act and The No Child Lefi
Behind Act - Convergence and Dissonance in Special Education Policy - The Growing
Alignment between these Laws and the Continuing Differences in their Conceptions of
Equal Educational Opportunity

This essay examines federal policy for students with disabilities under the
Individuals with Disabilities Education Act (IDEA) and the No Child Left Behind Act
(N CLB). It outlines the federal government’s response to the differences in these laws’
assessment policy, a process that offered more flexibility under NCLB through alternate
assessments for students with disabilities and greater alignment in IDEA with NCLB’s
accountability requirements. It also categorizes the laws’ conceptions of equal
educational opportunity and explains why advocates for students with disabilities prefer
IDEA’s vision of equal educational opportunity over NCLB’s arguably higher, but

potentially unreachable, vision.

 

TABLE OF CONTENTS

LIST OF TABLES ................................................................................. vi

INTRODUCTION ................................................................................... 1

CHAPTER 1 - DETERMINING ADEQUACY: HOW COURTS ARE REDEFINING
STATE RESPONSIBILITY FOR EDUCATIONAL FINANCE, GOALS, AND

ACCOUNTABILITY .............................................................................. 1 3
1.1 — Introduction ................................................................................... 13
1.2 — Summary of the History of School Finance Litigation ................................. 17
1.3 — The Courts’ Conceptions of Adequacy .................................................... 20
1.4 — The Components of an Adequate Educational System ................................. 29
1.5 - Conclusion .................................................................................... 47
CHAPTER 1 APPENDIX ......................................................................... 51
CHAPTER 1 BIBLIOGRAPHY ................................................................. 57

CHAPTER 2 — THE NO CHILD LEFT BEHIND ACT: IS IT AN UNFUNDED
MANDATE OR A PROMOTION OF FEDERAL EDUCATIONAL IDEALS? 65

2.1 — Introduction: Federalism and American Educational Policy ........................... 65
2.2 — The History of Federal Involvement in Education ...................................... 69
2.3 — Legal Analysis: Federalism and the Spending Clause ................................... 76
2.4 - Is NCLB an Unfunded Mandate — The Research on the Finances ................... 103
2.5 — CONCLUSION ................................................................................. 108
CHAPTER 2 BIBLIOGRAPHY ............................................................... 112

CHAPTER 3 — IDEA AND NCLB - CONVERGENCE AND DISSONANCE IN
SPECIAL EDUCATION POLICY - THE GROWING ALIGNMENT BETWEEN
THESE LAWS AND THE CONTINUING DIFFERENCES IN THEIR

CONCEPTIONS OF EQUAL EDUCATIONAL OPPORTUNITY ...................... 118
3.1 - Introduction ................................................................................. 118
3.2 - Theoretical Framework ................................................................... 124
3.3 -— Equal Educational Opportunity for Students with Disabilities ...................... 137
3.4 — Federal Education Policy Under IDEA and NCLB ................................... 151

3.5 — Alternate Assessments: The Federal Govemment’s Response to Concerns about
Including all Students with Disabilities in NCLB’s Accountability Requirements 172

3.6 — Analysis ..................................................................................... 184
3.7 — Conclusion .................................................................................. 196
CHAPTER 3 APPENDIX ....................................................................... 202
CHAPTER 3 BIBLIOGRAPHY ............................................................... 204

 

LIST OF TABLES

Table 1.1 — Funding Comparison ................................................................ 34
Table 3.1 — Assessment System for Students with Disabilities under NCLB & IDEA ..179
Table 3.2 — Characteristics of Alternate Achievement Standards ........................... 180

Table 3.3 MI-ACCESS Example ............................................................... 203

vi

INTRODUCTION

My dissertation is a collection of three essays that address three current issues in
education policy. Its unifying theme is the use of law as both the primary source of
authority and as the analytical framework to investigate the issues raised in the essays.
My research endeavors to add a legal perspective to the ongoing educational policy
debates on state responsibility for providing an adequate education to each child, the
constitutionality of the No Child Left Behind Act, and the similarities and differences
between federal special education policy under the Individuals with Disabilities
Education Act and the No Child Left Behind Act. Currently there are numerous voices in
the conversation that promote the perspective of educational professionals, parents, and
students, however, the discussion usually proceeds without a full understanding of the
underlying laws and legal principles that govern the policies. My research includes the
relevant background on these education laws in the hope to help bridge the gap between
the educational policy at issue and the actual contours of the law itself and the principles
that govern it that many times limit the range of possible policy solutions. I do this for
three educational policy issues, which I frame by answering the following questions:

1. How are state courts defining an “adequate” education in the lawsuits throughout
the country that ask the courts to interpret state constitution education clauses and
declare that the states must provide additional funding for a higher quality

education for all students?

2. Has Congress exceeded its authority under the Spending Clause of the US.
Constitution, Article 1, § 8, cl. 1, in enacting the No Child Left Behind Act so that

it is an unfimded mandate as many in the educational community contend?

3. How has the federal government responded to concerns regarding the differences
between requirements of the two major federal education laws that regulate
students with disabilities: IDEA and NCLB? Why did special education advocates
have so much consternation over NCLB when it appeared to be promoting

something they want, a higher educational benefit for students?

The answers to the questions I raise are found in the following three chapters, each
representing one of my articles:
1. Determining Adequacy: How Courts are Redefining State Responsibility for

Educational Finance, Goals, and Accountability

2. The No Child Left Behind Act: Is it an Unfunded Mandate or a Promotion of

Federal Educational Ideals?

3. The Individuals with Disabilities Education Act and The No Child Left Behind
Act — Convergence and Dissonance in Special Education Policy - The Growing
Alignment between these Laws and the Continuing Differences in their

Conceptions of Equal Educational Opportunity

Each article is summarized below.
Chapter 1: Determining Adequacy: How Courts are Redefining State
Responsibility for Educational Finance, Goals, and Accountability

My first essay outlines the definitions used by the various state courts that have
addressed educational adequacy claims. Educational adequacy is a movement to gain
additional state funding for education by asking state courts to rely on their state

constitutions to require states to provide all children with a certain quality of education

 

thereby declaring the current level of education and funding for public education
inadequate. My work is important to the field because it compiles information on the
twenty-six adequacy court decisions in one source and it finds three common components
to the court decisions: funding, goals, and accountability. The essay then delineates the
important features of each component and explains that each are potential issues courts
address, not required features of an adequacy case.

Funding is the most significant aspect of the adequacy decisions since the
movement, at its core, is an attempt to secure additional funding for public education in a
state. The concept of “adequate” funding is one that calls for a substantial equality of
revenues to be provided by the state. It begins with a horizontal equity among districts to
provide a sufficient level of financial resources to supply a basic minimum level of a
quality education to all students. It then provides for variation in district revenues either
through adjustments for the differences in the costs of educating certain groups of
students, known as vertical equity, or by permitting local communities to supplement the
money raised by the general state funding system, or both.

The adequacy courts have embraced broad goals for their state’s educational
system. These goals aim to prepare students for their future roles as citizens and
individuals, competitors in the market, and participants in our country’s political system.
As individuals and citizens, students should be trained in a manner that gives them
competence in academic subjects, physical and mental health issues, and interpersonal
skills. States should also train students as future competitors in the market. In this role,
students should be proficient at intelligently choosing occupations, favorably competing

for academic or vocational positions, and competently performing the tasks they

undertake. Moreover, students must also be ready to assume their roles as participants in
the political system. This responsibility requires a basic knowledge of history, geography,
and economic, political and social systems. It also prepares students for civic engagement
as voters and members of juries in a manner that will allow them to understand the issues
before them and make informed decisions.

The final potential component of an adequacy decision identified in this essay is
accountability. This mechanism for holding states responsible for student achievement of
the required substantive level of education is the least developed of the elements. Its
treatment by a handful of courts has been accomplished through the legislature’s adoption
of a formal accountability system or through the parties’ use of the court system to
enforce an initial court decision that declared a state educational finance system
unconstitutional.

Chapter 2: The No Child Left Behind Act: Is it an Unfunded Mandate or a
Promotion of Federal Educational Ideals?

My second essay examines the No Child Left Behind Act (N CLB) unfunded
mandate debate as it has unfolded in the federal courts. It details the arguments made by
the parties in the cases of School District of Pontiac v. Spellings and Connecticut v.
Spellings and concludes that NCLB is a permissible exercise of Congress’ conditional
spending power under article I, sec. 1, cl. 8 of the US. Constitution. The work makes a
significant contribution to the field by informing the policy debate about the unfunded
mandate issue with its relevant legal framework using the actual arguments and legal

theories addressed by the courts that are currently deciding the issue.

Plaintiffs, who include the National Education Association, several local
education associations, and school districts, and the State of Connecticut, claim the US.
Secretary of Education cannot require them to spend their own money, i.e. any money
beyond what the federal government supplies under the NCLB, to pay for the extensive
costs of complying with the law. The argument is based on NCLB’s unfimded mandates
provision, which says “[n]othing in this Act shall be construed to authorize an officer or
employee of the Federal Government to mandate, direct, or control a State, local
educational agency, or school’s curriculum, program of instruction, or allocation of State
or local resources, or mandate a State or any subdivision thereof to spend any funds or
incur any costs not paid for under this Act.” 20 U.S.C. § 7907(a).

The initial decision in School District of Pontiac v. Spellings was issued in Nov.
2005 and found in favor of the Secretary of Education, saying that the unfunded
mandates provision could not reasonably be read to prevent Congress from compelling
states to comply with NCLB’s requirements, even if they had to spend their own money
to do so. Instead, it was only a limit on federal officers or employees from imposing
additional duties on states who chose to participate in the law. The Sixth Circuit Court of
Appeals reversed this decision in Jan. 2008, agreeing with the Plaintiffs by saying that
Congress failed to provide clear notice to states, as evidenced by the unfunded mandate
provision, that they would be responsible for all costs associated with implementing
NCLB, even those costs that were not paid for by the federal government under the law.
In May 2008, the full bench of the Sixth Circuit agreed to rehear this case so the case was

still pending at the time of this publication.

The federal district court has issued two decisions in the case of Connecticut v.
Spellings. The State of Connecticut’s lawsuit claimed that the US. Secretary of
Education’s interpretation of NCLB that required the state to spend significant amounts
of money to create and implement a new assessment system, money that was not actually
provided by the federal government, violated the Spending Clause and the Tenth
Amendment of the US. Constitution. In its initial Sept. 2006 decision, the court
dismissed three of the four claims, finding that it lacked subject matter jurisdiction to
hear the issues before it because the Secretary of Education had not taken any formal
action to enforce NCLB against Connecticut and the General Education Provisions Act
prohibited court review before official administrative action was taken. The remaining
claim, under the Administrative Procedures Act, was dismissed in the court’s April 2008
decision. After reviewing the administrative record, the court found that the Secretary of
Education’s actions in denying Connecticut’s proposed plan amendments relating to the
assessments of students with disabilities and English language learners was not arbitrary
and capricious. Moreover, the Secretary’s failure to address the unfunded mandate
provision in its response to Connecticut was appropriate because the State failed to
properly raise the issue.

The article then contains my analysis of the issues presented and finds that NCLB
is a valid exercise of Congress’ conditional spending power. It argues that the best
interpretation of the unfunded mandate provision is one in which it is read in light of the
overall statutory scheme to fit into a harmonious whole. This is done by examining the
purpose and structure of the act, and these support the view that Congress has the power

to impose conditions of assistance on states in exchange for federal funding. First, the

purpose is to improve the educational opportunity and academic performance of all
students in the US. An offer of additional financial assistance is consistent with this goal.
Second, the overall statutory scheme, or context, demonstrates that the law’s conditions
of assistance are clear to states in that they know they must design and establish their own
academic standards and accountability systems and submit plans for federal approval to
be able to participate in NCLB. There is no promise of full federal payment for these
systems in the law and, in fact, the funding formula used under the law is not linked to
state compliance costs. Instead it is based on the number of economically disadvantaged
students in a district. Moreover, the statute clearly specifies that states must perform all
duties or the Secretary of Education may withhold funding. In this way, states retain the
basic funding responsibilities for public education and NCLB only offers some additional
financial assistance. Thus, the original reading of the unfunded mandate provision by the
district court in the Pontiac case, which would require states to comply with the basic
conditions of assistance contained in NCLB but not new requirements imposed by
officers or employees of the federal government, best comports the text of the unfunded
mandate provision with the overall structure and purpose of the law.
Chapter 3: The Individuals with Disabilities Education Act and The No Child
Left Behind Act - Convergence and Dissonance in Special Education Policy - The
Growing Alignment between these Laws and the Continuing Differences in their
Conceptions of Equal Educational Opportunity

This essay discusses federal education policy for students with disabilities by
examining the two major laws that govern it: the Individuals with Disabilities Education

Act (IDEA) and the No Child Lefi Behind Act (NCLB). It analyzes two questions that

have been raised in the policy arena. First, how has the federal government responded to
concerns regarding the differences between the requirements of these two laws. It finds
that the US. Department of Education (U SDOE) and Congress have deliberately aligned
the pumose, goals, and assessments under IDEA and NCLB. Second, it asks why special
education advocates had so much consternation over NCLB when it appeared to be
promoting something they wanted, a higher educational benefit for students. On this
point, it finds that the laws promote different conceptions of equal educational
opportunity and NCLB, even though it has an arguably higher conception of common
minimum level of achievement for all students, is a potential threat to the structure and
purpose of IDEA because NCLB, with its adequate yearly progress requirements (AYP)
and sanctions on school that do not meet its performance targets, potentially limits
assessment options for students with disabilities.

This work makes an important contribution to the literature in several ways. First,
it answers the question of why advocates for students with disabilities did not
wholeheartedly embrace NCLB, even though its goal was a better education for all and
special education advocates desire a greater educational benefit for students with
disabilities. Second, it illustrates the points of alignment and incongruity between these
two major education laws that regulate students with disabilities. Third, it documents the
alignment process that was carried out by both the USDOE in its rulemaking on NCLB
assessment policy and Congress in its reauthorization of IDEA in 2004. Fourth, it
examines the underlying conceptions of equal educational opportunity promoted by the

laws.

To answer the first question, the essay uses the policy cycle model of the public
policy-making process to examine the actions taken by the USDOE and Congress in
response to the differences in IDEA and NCLB, especially in relation to alternate
assessments. This model looks at policy making in certain stages and assumes that
decisions are made a specific points in time, and so it allows for an investigation into
formal policy actions taken by government bodies. By inspecting the relevant
government documents, primarily USDOE NCLB regulations and the 2004 IDEA, it
finds a deliberate attempt on the part of both the US. Department of Education (U SDOE)
and Congress to align the laws’ purpose, goals, and testing requirements through the
regulatory and reauthorization process.

Changes to NCLB assessment policy occurred in four stages: (1) the original
enactment of the law in early 2002; (2) the introduction of alternate assessments in late
2002; (3) the 1% exemption in 2003 for students with the most significant cognitive
disabilities that permits them to take alternate assessments based on alternate
achievement standards and have their proficient or advanced scores counted towards a
school district’s AYP calculation; and (4) the 2% exemption in 2007 for students with
disabilities that are unable to reach grade-level proficiency within one academic year that
permits them to take alternate assessments based on modified achievement standards and
have their proficient or advanced scores counted towards a school district’s AYP
calculation.

IDEA was specifically aligned with NCLB during the IDEA 2004 reauthorization
process. In particular, the laws have a common purpose of providing a high quality

education to students with disabilities and have a focus on core academic skills with

IDEA requiring that states set the same academic goals for students with disabilities as
they have in NCLB and ensure, through each student’s individualized education program
(IEP) that the student is included and makes progress in the general education curriculum.
In addition, IDEA requires all students with disabilities to participate in their state’s
assessment system, including testing under NCLB.

In addition to detailing this alignment process, the essay also considers the
remaining dissonance in the laws by examining their underlying conceptions of equal
educational opportunity. It examines equal educational opportunity from two vantage
points. The first applies the equal outcomes conceptions. The second uses conception
from the 1982 US. Supreme Court case of Board of Education of the Hendrick Hudson
Central School District v. Rowley.

Equality of opportunity embodies the notion of fundamental fairness, an absence
of discrimination or a barrier to a public good like education. It puts into practice the
paradox of equality that asserts that all people are equal but recognizes the fact that they
really are not. Equal educational opportunity aims to enhance the ability of certain groups
of students to benefit from a public education by removing the barriers they face. Its
equal outcome conception takes the form of level the playing field, minimal achievement,
same progress, same results, and fill] opportunity. All of these conceptions desire to
minimize the effect of a non-educationally relevant student characteristics, in this case
disability, yet they allow for educationally relevant variables of choice and ability to
affect a student’s ultimate educational outcome, except for same results idea which

actually would actually require the same outcome for all.

10

 

IDEA promotes a level the playing field view of equal educational opportunity
because it does not require the same level of academic performance for all students.
Instead, it allows students with disabilities to have individual goals and achievements as
specified in their IEP, even though all must strive to attain state academic standards and
be included in and make progress in the general education curriculum and offers
additional support for students to reach these goals in the form of special education and
related services. NCLB, on the other hand, promotes a minimal achievement view of
equal educational opportunity because it requires, through testing, AYP calculations, and
consequences for schools, a common level of academic proficiency for all students.
Courts examining the level of educational benefit schools are required to provide to
students under IDEA have used the Rowley case as a guide. This standard is in essence
the law’s operational definition of equal educational opportunity. Although Rowley
obligated schools to develop students’ IEPs in a manner that consists of goals and
services that are reasonably calculated to confer schools to provide some educational
benefit to students, which is measured by the student receiving passing marks and
advancing grade to grade, courts in six federal circuits have adopted a higher meaningful
benefit standard, which is judged in relation to the child’s potential. Many special
education advocates have argued that this or some form of a higher benefit standard be
adopted nationally.

In light of this conversation, special education advocates’ tepid response to
NCLB, with its arguably higher minimal achievement view of equal educational

opportunity, was surprising.

11

 

The essay concludes by highlighting the benefits of IDEA, with its level the
playing field goal of providing students with disabilities an opportunity to receive an
educational benefit that is closer to that available to their non-disabled peers than they
would receive without its special education and related services. Fundamentally the
consideration of the child’s unique needs in the IEP development process and the
specialized services offered through it are valuable mechanisms to assist students in
meeting their educational goals. Thus, special education advocates desire to keep IDEA’s
structure, promises, and services, and work to enhance the educational opportunity for
students with disabilities in the framework of its free appropriate public education
promise as interpreted by Rowley rather than trade this for NCLB’s blanket and perhaps

unreachable promise of a minimum level of achievement for all.

12

Chapter 1 — Determining Adequacy: How Courts are Redefining State
Responsibility for Educational Finance, Goals, and Accountability1
1.1 — Introduction

Headlines during the past two decades have read that courts have struck down
their state’s school finance systems as unconstitutionally inadequate. In fact, twenty-one
out of the twenty-six states in which courts have considered adequacy claims have had
rulings that were favorable to adequacy plaintiffs.2 In these rulings, states have been
directed by the courts to redesign their school finance systems, fix outdated facilities, and
introduce new programs and curriculum. As a consequence of the significant actions
being taken in various states, adequacy has a ubiquitous presence in the educational
policy arena. In spite of all of the discussion and action, it is not always clear what courts
envision as “adequate” when they strike down a state’s educational system for not
meeting that constitutional standard.

The meaning of the term educational “adequacy” is ambiguous because, like
many other legal theories, it has been built in a piecemeal fashion from the numerous
state court decisions around the country that have found their state’s educational system
to be insufficient to meet its constitutional duty in some respect. This ambiguity is
situated in various aspects of the decisions. First, since the adequacy decisions are made
at the state level, every one is unique to the state in which it is made. Each individual

state’s education clause, education funding system, legal and political history, and the

 

I This article has been published. See 2007 BYU EDUC. & LJ. 281.

2 The definition of adequacy cases used in this article include only those where the court relied upon its
state constitution’s education clause to find some aspect of its educational system unconstitutional. There
are a few cases that meet this definition that have not been included in this article because they were either
decided at the trial level or are currently pending and were therefore too difiicult to obtain. See Appendix
1.1 for a list of included cases. See also National Access Network,
hgpzl/www.schoolfunding.info/index.php3 (listing funding litigation history for all states in the nation).

13

role the various branches of state government play in the decision making process impact
the definition of adequacy. Second, plaintiffs in adequacy lawsuits bring different
combinations of causes of actions, arguments, supporting evidence, and requests for relief
in their individual cases. Third, the deciding courts utilize different underlying
approaches, understandings, and language to define what type of education their state
constitution requires.

Despite these differences, commonalities in approaches to defining “adequacy”
can be identified. For instance, the underlying concepts, elements, and goals of
“adequacy” can be delineated. In this sense, adequacy is commonly defined as a level of
resources or inputs that is sufficient to meet defined or absolute, rather than relative,
output standards, such as a minimum passing score on a state achievement test.3 It is an
outcome-oriented strategy. The adequacy approach emphasizes the quality of education
itself and asks what inputs are needed to attain a desired level of achievement.4 In
addition, the features that distinguish it from other finance concepts, particularly equity,
can be explained. In this sense, school finance experts recognize adequacy’s focus on
educational outputs in absolute levels of achievement rather than the relative distribution
of educational inputs5 and lawyers classify arguments as either “adequacy” if they are
based on state education clauses or “equity” if they are based on equal protection clauses.

At their core, adequacy lawsuits are designed to garner increased educational
funding to enhance the education offered within a state, typically with a focus on the

poorer school districts. Yet in their broadest sense, adequacy cases go beyond this basic

 

3 EQUITY AND ADEQUACY IN EDUCATION FINANCE: ISSUES AND PERSPECTIVES 23 (Helen F. Ladd,
Rosemary Chalk & Janet S. Hansen eds., 1999) [hereinafter EQUITY AND ADEQUACY].

4 Larry J. Obhof, Rethinking Judicial Activism and Restraint in State School Finance Litigation, 27 HARV.
J.L. & PUB. POL’Y 569, 583 (2004).

5 EQUITY AND ADEQUACY, supra note 3.

14

finance purpose and reforrnulate a state’s responsibility for and treatment of its public
educational establishment, encompassing the finances, goals, and accountability for the
outcomes of education.

This article addresses the complexity of educational adequacy by examining the
various definitions of “adequacy” used by the courts. Since definitions are important in
law, other law and education finance commentators have examined the issue of the
definition of adequacy from different perspectives.6 This article extends the work done in
these previous articles by outlining the full reach of adequacy as including a state’s
educational finance system, educational goals, and accountability mechanism. It also

provides a deeper look into the detail from the various state court decisions about the

 

6 Josh Kagan identified five types of adequacy definitions or approaches the courts have employed to
determine whether a state’s educational system is constitutionally adequate. They include the following: (1)
relying on “existing standards and established output measurements”; (2) “future legislative definition”; (3)
“a laundry list of outputs” the state must produce; (4) a series of educational inputs to ensure an adequate
opportunity to learn; and (5) a list of educational inputs and outputs. Josh Kagan, A Civics Action:
Interpreting “Adequacy ” in State Constitutions’ Education Clauses, 78 N.Y.U. L. REV. 2241, 2249-57
(2003).

James Liebman and Charles Sabel examined the definitions of adequacy through the lens of the
remedies imposed by the courts and found that courts take one of three possible approaches to creating
workable definitions of adequacy and measures of progress in achieving it. They either (1) “extract
standards specifying very general goals for the states' schools from expert accounts of well-functioning
schools” (it may then fall to the legislature to translate these goals into a workable plan for educational
refomr); (2) “select one or more detailed models of successfully reformed schools” (school districts found
to be violating their constitutional obligations then are required to choose a model or an unlisted alternative
that delivers superior results); or (3) issue “a sibylline rejection of solutions that do not meet its adequacy
standard, while remaining silent as to the specifics of that standard or how to comply with it.” James S.
Liebman & Charles F. Sabel, A Public Laboratory Dewey Barely Imagined: The Emerging Model of School
Governance and Legal Reform, 28 N.Y.U. REV. L. & SOC. CHANGE 183, 205-06 (2003).

Deborah Verstegen examined the school finance court decisions to determine what factors
contributed to the success of the lawsuits. She identified a bifurcated theory of adequacy based on the
definition of the state educational goals articulated by the courts. When the lawsuits were unsuccessful, the
courts “invoke[d] an age-old minimalist standard of adequacy set down in the 19205” that says because all
students have access to a minimum, basic education, the system of finding is not unconstitutional despite
disparities in quality of education and financing. When the adequacy lawsuits were successfirl, the
educational responsibilities of the state were defined more broadly “in the context of the information age
and a global economy” that equips children to function in this environment. Deborah A. Verstegen, The
Law of Financing Education: Towards a Theory of A dequacy: The Continuing Saga of Equal Educational
Opportunity in the Context of State Constitutional Challenges to School Finance Systems, 23 ST. LOUIS U.
PUB. L. REV. 499, 507-09 (2004).

15

underlying definitional components in the areas of the relevant constitutional provisions,
school finance language, educational opportunity guarantees, and educational goals.

The analysis begins in Section 1.2 with a brief history of the school finance
movement. Section 1.3 explores the adequacy lawsuits by examining their constitutional
underpinnings, the resulting state duties towards public education, and the evidence of
inadequacy observed. Section 1.4 surveys the three components of adequacy articulated
by the courts with respect to funding, educational attainment goals, and accountability
features. Section 1.4.1 identifies the common characteristics of adequacy as they relate to
sufficiency of funding to provide a high minimum quality education and the required
educational opportunity offered to all students. Section 1.4.2 discusses the educational
goals of training the future citizens, workers, and participants in our country’s political
system. Section 1.4.3 investigates the required accountability for meeting the educational
goals.

The article concludes in section 1.5 with finding that although the adequacy
lawsuits can be broadly conceived as encompassing the three components of educational
funding, goals, and accountability, it is the requirement that a state government provide
sufficient funding for a basic quality education that dominates the court decisions. This
funding requirement can be classified, in most states, as promoting a baseline level of
funding that can be supplemented, either to provide additional financial assistance to
schools that have higher educational costs or as a supplement that local residents are
permitted to supply to their district. The educational goals portions of the decisions
reflect the breadth of the goals Americans desire for our educational system to pursue,

and can be broadly conceived as encompassing intellectual, career, and political pursuits.

16

Although courts have outlined broad educational goals, holding the state accountable for
achieving them through a formal accountability system is not a common component of
the adequacy decisions. Despite this fact, the importance of more carefully defining and
achieving the goals of our educational system is likely to grow with the national push
towards more standards and accountability in education.
1.2 — Summary of the History of School Finance Litigation

Educational adequacy is a legal theory that calls for the provision of a high-
minimurn quality education to all of the students in a state. Most scholars mark its
beginning with the 1989 state court decisions in Kentucky, Texas, and Montana that
declared their educational finance systems inadequate and unconstitutional based on their
state education clauses.7

The decisions in Kentucky, Texas, and Montana served as a break from previous
school finance litigation that had already undergone two different waves wherein the
challenges to the state educational systems were based on legal theories of equity. Wave
one, which spanned the years of the late 19603 until the 1973 Supreme Court decision in
San Antonio Independent School District v. Rodriguez,8 was characterized by federal
equal protection challenges to the state education systems. 9 These equality or equity suits
were concerned about the vast financial resource differences between high-property-
wealth and low-property-wealth districts and argued that all children were entitled to

have the same amount of money spent on their education (“horizontal equity”). ‘0 The

 

7 EQUITY AND ADEQUACY, supra note 3, at 56.

8411 US. 1 (1973).

9 See William E. Thro, Issues in Education and Policy: Judicial Analysis During the Third Wave of School
Finance Litigation: The Massachusetts Decision as a Model, 35 BC. L. REV. 597, 600-01 (1994); Joseph
S. Patt, School Finance Battles: Survey Says? It’s All Just a Change in Attitudes, 34 HARV. C.R.-C.L. L.
REV. 547, 557-59 (Summer, 1999); EQUITY AND ADEQUACY, supra note 3, at 35-41.

10 EQUITY AND ADEQUACY, supra note 3, at 18-20.

17

US. Supreme Court in Rodriguez, effectively ended this line of argument when it upheld
the Texas educational finance system against a federal equal protection clause challenge,
saying that students living in poor property-wealth school districts were not an
identifiable class of suspect persons and that education is not a fundamental right under
the US. Constitution.H

After Rodriguez foreclosed the federal avenue, the challenges to the
constitutionality of state education finance systems shifted to the state courts and the
individual states’ constitutional provisions. 12 Prominent from 1973 to 1989, the plaintiffs
in wave two cases reasoned that education was a fundamental right under the state
education clause, so any governmental interference must be examined under the strict
scrutiny analysis of the state equal protection clause. They highlighted the inequitable
method for funding public schools that made the amount of resources available to local
school districts dependent upon the property wealth located in that district. Plaintiffs
sought to eliminate this spending gap between high-wealth and low-wealth districts,
relying on the horizontal equity concept of equal revenues for every district or on a
vertical equity notion that all districts should have equality of educational opportunity in
the sense that students in districts with higher needs should have more money spent on
their education than those with lesser educational needs (“vertical equity”). ‘3 A few

plaintiffs also contended that the state’s education clause required access to educational

 

11 Rodriguez, 411 US. at 28, 35.

12Thro, supra note 9, at 601-03; Patt, supra note 9, at 559-61; EQUITY AND ADEQUACY, supra note 3, at
41-55.

13 EQUITY AND ADEQUACY, supra note 3, at 20-21.

18

opportunities.” These cases were the precursors to the adequacy movement as we see it
today.15

In the adequacy lawsuits of wave three, plaintiffs have argued that: (1) their state
education clause requires that a specific substantive level of education, which is defined
by state standards or goals, be provided to all students within the state; (2) this quality of
education is not currently being supplied; and that therefore, (3) the state has violated its
constitutional duty with respect to education as embodied in its education clause and (4)
the court should impose a remedy.16 This focus on funding to meet specific educational
outcomes or standards is a significant shift from the horizontal and vertical equity
arguments from the previous two waves of litigation which focused on the relative
amounts of funding among groups of students or districts within the state.

Under adequacy arguments, when state finance systems have been found
unconstitutionally inadequate for not providing the required substantive level of
education to the students in the state, the courts have ordered states to reconstitute them
and to provide to the school districts the amount of money needed to offer a
constitutionally adequate education for all of their students. In certain states, this may
require the retooling of the whole educational system including its finance, goals, and
accountability measures. This process has proven to be difiicult to implement as
demonstrated by protracted litigation in states such as New Hampshire, New Jersey, New

York, Ohio, and Texas. '7

 

14 Robinson v. Cahill, 303 A.2d 273 (NJ. 1973); Seattle Sch. Dist. No. l v. Washington, 585 P.2d 71
(Wash. 1978); Pauley v. Kelly, 255 S.E.2d 859 (W.Va. 1979).

15 Steve Smith, Education Adequacy Litigation: History, Trends, and Research, 27 ARK. L. REV. 107, 1 l l
(2004).

16Thro, supra note 9, at 602-04; Patt, supra note 9, at 561; EQUITY AND ADEQUACY, supra note 3, at 56-
62.

17 See Appendix 1.1 for list of cases.

19

Most commentary has acknowledged 1989 as the beginning of the adequacy
movement, and identified an adequacy lawsuit, at least initially, by the plaintiffs’
exclusive focus on a state’s education clause violation without an accompanying equal
protection argument. However, plaintiffs, both before and after this date, have brought
equal protection claims in addition to their education clause claims in their educational
finance lawsuits. Therefore, this article considers a court decision an adequacy case if (1)
the plaintiffs argued a state duty to provide an adequate education under the education
clause of the state constitution, (2) the court agreed that there was a duty, and (3) the
court found a possible or actual violation of that duty. Thus, the adequacy cases discussed
here include a few decisions before 1989 and some after that date that might not
traditionally be considered adequacy cases but that do include the basic educational
theory promoted by the adequacy movement. '3
1.3 — The Courts’ Conceptions of Adequacy

Adequacy lawsuits are a response in general to the wide differences in the quality
of education that is provided to students throughout a given state and in particular to the
poor quality education that certain students receive. Because education is at least partly
funded through local sources in most states,‘9 children who reside in districts with a
lower ability to raise education revenues receive a lower quality of education than

children living in other districts that are able to raise more funds to devote to education.20

 

18 These cases include decisions from Alabama, Alaska, Arizona, Arkansas, Idaho, Kansas, Kentucky,
Maryland, Massachusetts, Montana, New Hampshire, New Jersey, New Mexico, New York, North
Carolina, Ohio, South Carolina, Texas, Washington, West Virginia, and Wyoming. See Appendix 1.1 for a
list of cases.

19 MAKING MONEY MATTER: FINANCING AMERICA’S SCHOOLS 53 (Helen F. Ladd & Janet S. Hansen eds.,
1999).

20 See e.g., McDuffy v. Sec’y of the Executive Office of Educ., 615 N.E.2d 516, 552 (Mass. 1993); see
also Helena Elementary Sch. Dist. No. 1 v. Montana, 769 P.2d 684, 690 (Mont. 1989) (discussing the
conclusion that spending disparities between school districts means unequal educational opportunities).

20

These districts, adequacy proponents contend, are not financially able to provide students
with an adequate education. Adequacy proponents desire to enforce the state’s
responsibility to offer a basic quality education to all students regardless of where they
reside within the state.

The foundation of the educational adequacy argument is the idea that the
individual state constitutions require the state government to establish, maintain, and
sufficiently fund a quality public education system so that students can meet specific
educational outcomes or standards. This duty is a constitutional priority that must be
fulfilled by the state and cannot be subject to local differences that undermine the quality
of the education provided. After a court identifies that a duty to educate exists, it must
define the state’s responsibilities under this duty. This is often done in reference to
educational standards or goals that are created either by the court, the state legislature, or
the state education agency. Once these obligations are articulated, the court must
determine whether they are being fulfilled. At this stage, evidence of the condition of the
state’s school buildings, the quality of its staff, and the state of its educational programs
is considered. If the education provided is insufficient to attain the state’s standards and
goals, the com finds a constitutional violation and orders the state to improve its
educational programs in order to perform its responsibility to educate its youth.

1.3.1 — The State Constitutional Duty to Provide a Public Education

In an adequacy lawsuit, the court is asked to interpret its state constitution’s
education clause to identify and enforce the state’s duty to establish and maintain its
public education system at the constitutionally required level of financial and academic

sufficiency. Almost every state constitution requires its government to institute and

21

sustain a system of public schools.21 Yet each state constitution is unique, so the specific
language used to create and describe the government’s obligation for public education
must be examined in light of the state’s legal and political history to determine whether a
duty exists for the state to provide an education to its populace and, if so, what this duty
entails.

The adequacy courts begin their analysis by examining the basic pronouncements
on public schooling in their respective state constitutions to determine the components of
the state’s duty. At their most basic level, the state constitutions require that the
government “establish and maintain” a public education system. Beyond the provision of
and support for public education, adequacy courts must identify the level of quality that
this system must exhibit.

To identify a level of quality, most courts rely on the constitutional language that
describes the schools the state must furnish. Initial legal scholars on this topic suggested
that this descriptive or “quality” component of the state’s education clause could be used

as a predictor to determine whether an adequacy lawsuit was likely to succeed because

 

21Reguired: ALASKA CONST. art. VII, § 1; ARIZ. CONST. art. XI, § 1; ARK. CONST. art. XIV, § 1; CAL.
CONST. an. IX, § 5; COLO. CONST. art. IX, § 2; CONN. CONST. art. VIII, § 1; DEL. CONST. art. X, § 1; FLA.
CONST. art. 1X, § 1; GA. CONST. art. V111, § 1, 1] 1; HAW. CONST. art. X, § 1;1DAHO CONST. art. 1X, § 1;
ILL. CONST. art. X, § 1; IND. CONST. art. VIII,§ 1; KAN. CONST. art. Vl, § 6(b); KY. CONST.§ 183; LA.
CONST. art. VIII, § 13(B); ME. CONST. art. VIII, pt. l,§ 1; MD. CONST. art. VIII, § 1; MAss. CONST. pt. 2,
ch. V, § 2; MICH. CONST. art. VIII, §§ 1-2; MINN. CONST. art. Art. XIII, § 1; MO. CONST. art. 1X, § 1(a);
MONT. CONST. art. X, § 1; NEB. CONST. art. V11, § 1; NEV. CONST. art. XI, §§ 1-2; N.H. CONST. pt. 2, art.
83; NJ. CONST. art. VIII, § IV, 11 1; NM. CONST. art. XII, § 1; N.Y. CONST. art. XI, § 1; NC. CONST. art.
1X, § 2(1); N.D. CONST. art. V111, §§ 1-4; OHIO CONST. art. VI, § 2; OR. CONST. art. VIII, § 3; PA. CONST.
art. 111, § 14; R.I. CONST. art. X11, § 1; SC. CONST. ANN. art. XI, § 3; SD. CONST. art. VIII, § 1; TENN.
CONST. art. XI, §12; TEX. CONST. art. VII § 1; UTAH CONST. art. X, § 1; VT. CONST. § 68; VA. CONST. art.
VIII, § 1; WASH. CONST. art. IX, §§ 1-2; W. VA. CONST. art. XII, § 1; WIS. CONST. art. X, § 3; WYO.
CONST. art. I, §23 and art. VII, § 1.

Legislature may support: ALA. CONST. art. XIV, § 256; MISS. CONST. art. VIII, § 201; W. VA. CONST. art.
XII, § 1.

Education responsibilityI not included i_n the constitution: Iowa.

22

the language could be organized into categories according to its strength.22 Yet, not all
states have quality language in addition to the “establish and maintain” clause, and no
correlation has been shown between the purported quality language in the constitution
and the likelihood of success in an adequacy lawsuit. In practice, adequacy lawsuits have
been successful across the quality spectrum. The constitutional language in the successful
adequacy cases range from a state whose education clause mandates only that a public

(1”23 to two states in which the interests of

school system be “established and maintaine
education must be “cherished”.24

The wide range of language used in state constitutions to describe the state’s duty
with respect to education is represented below. The constitutional language in the
successful adequacy lawsuits describes either the quality of the educational system to be

provided or the system’s purpose as follows:

0 free — New York, South Carolina,25

. liberal —Alabama,26

0 uniform — New Mexico, North Dakota,27
0 general and uniform - Arizona, Minnesota, North Carolina, Oregon, South

Dakota Washington,28

 

22 William Thro has categorized the state education clauses language into three different groups that reflect
the quality requirement contained within. At the low end of the spectrum are the “establishment provisions”
that require the state to maintain a system of public schools. In the middle are the “quality provisions” that
include a quality qualifier for the educational system. At the high end of the spectrum are the “high duty
provisions” that make education a priority among other government services. Thro, supra note 9, at 539-40
(referring generally to classifications used by Erica B. Grubb, Breaking the Language Barrier: The Right to
Bilingual Education, 9 HARV. C.R. —C.L. L. REV. 52, 66-70 (1974); Gershon M. Ratner, A New Legal Duty
for Urban Public Schools: Eflective Education in Basic Skills, 63 TEX. L. REV. 777, 814-16, n.143-46
(1985)).

23 ALASKA CONST. art. VII, § 1.

24 MASS. CONST. pt. 2, ch. V, § 2. art. 111; NH. CONST. pt. 2, art. 83.

25 N.Y. CONST. art. XI, § 1; SC. CONST. ANN. art. XI, § 3.

26 ALA. CONST. art. XIV, § 256. (The current version of this constitutional section no longer includes this
language.)

27 NM. CONST. art. XII, § 1; ND. CONST. art. VIII, § 2..

23

0 complete and uniform — W yoming,29

a general, uniform, and thorough — Idaho,30

0 as nearly uniform as practicable — Wisconsin,31
0 efficient — Texas, Kentucky,32

33 and

0 general, suitable and efficient — Arkansas,
0 thorough and efficient — Maryland, New Jersey, Ohio, West Virginia,
Wyoming. 34
o guarantee equality of educational opportunity to all — Montana,35
0 make suitable provision for the finance of the educational interests — Kansas,
36 and
o cherish the interests of literature and the sciences — Massachusetts, New
Hampshire. 37
No clear pattern emerges from examining these provisions. The adequacy courts
have found a basic quality requirement that was not being met even when the state is only

required to provide a free or no cost education}8 an efficient education}9 and when it

must cherish the interests of literature and the sciences.40 In essence these courts have

 

28 ARIZ. CONST. art. XI, § 1; MINN. CONST. art. XIII, § 1; NC. CONST. art. IX, § 2(1); 0R. CONST. art. VIII,
§ 3; SD. CONST. art. V111, § 1; WASH. CONST. art. IX, § 2.

29 WYO. CONST. art. VII, § 1.

30 IDAHO CONST. art. IX, § 1.

31 WIS. CONST. art. X, § 3. _

32 KY. CONST. § 183; TEX. CONST. art. VII § 1.

33 ARK. CONST. art. XIV, § 1.

34 MD. CONST. art. VIII, § 1;N.J. CONST. art. VIII, § IV, 1[ l; OHIO CONST. art. VI, § 2; W. VA. CONST.
art. XII, § 1; WYO. CONST. art. VII, § 9.

35 MONT. CONST. art. X, § 1(1).

36 KAN. CONST. art. VI, § 6(b).

37 MASS. CONST. pt. 2, ch. V, § 2; NH. CONST. pt. 2, art. 83.

38 See e. g. Abbeville County Sch. Dist. v. South Carolina, 515 S.E.2d 535, 540 (SC. 1999).

39 See e. g. Rose v. Council for Better Educ., 790 S.W.2d 186, 215 (Ky. 1989).

40 See e. g. McDuffy v. Sec’y of the Executive Office of Educ., 615 N.E.2d 516, 553-54 (Mass. 1993).

24

held that whenever a state is required to establish and maintain a public education system,
regardless of the particular language used to describe it, it must meet basic quality
standards.

In the unsuccessful adequacy lawsuits, the specific language of the state education
clauses has not been determinative of their outcome. Instead, the courts have focused on
separation of powers issues and rejected the adequacy proponents’ request for the court to
define what constitutes an adequate education or adequate funding because, in the courts’
view, this determination is a responsibility of the state legislature." The courts that have
declined to pass judgment on their state educational system on adequacy grounds have
had constitutional language that is very similar to that of the adequacy courts. These
states have education clauses that require the government to do the following:

0 make adequate provision for a uniform system of public schools — F lorida,42

0 provide an efficient system of high quality public educational institutions and
services — Illinois,43
0 provide a minimum foundation of education in all public elementary and

secondary schools — Louisiana,44

0 provide for a thorough and efficient system of public education —-

. 4
Pennsylvania, 5 and

 

41 Coal. for Adequacy and Fairness v. Chiles, 680 So. 2d 400, 407-8 (Fla. 1996); Comm. for Educ. Rights
v. Edgar, 672 N.E.2d 1178, 1193 (111. 1996); Charlet v. Louisiana, 713 So. 2d 1199, 1206 (La. 1998);
Marerro v. Pennsylvania, 709 A.2d 956, 965-66 (Pa. 1997); City of Pawtucket v. Sundlun, 662 A.2d 40,
57-59 (R.1. 1995).

42F LA. CONST. art. IX, § 1. See Coalition for Adequacy, 680 So. 2d at 405. Since this decision the Florida
Constitution has been revised to include even stronger language regarding the State’s responsibility for
education.

43 ILL. CONST. art. X, § 1. Edgar, 672 N.E.2d at 1183.

44 LA. CONST. art. VIII, § 138. Charlet, 713 So. 2d at 1203.

45 PA. CONST. art. 111, § 14. Marerro, 709 A.2d 956, 958.

25

0 secure to the people the advantages and Opportunities of education — Rhode
Island. 46

There is no appreciable difference in these underlying constitutional provisions
from those interpreted by the courts in which adequacy lawsuits were successful. In fact,
the constitutional language to support the argument for providing a quality education
seems stronger in these states than in many of those where adequacy lawsuits have been
unsuccessful. But these courts have avoided a determination of quality by focusing on the
separation of powers issue.

In sum, numerous courts have found a duty to provide an adequate education to
the children of their state based on the education provisions in their state constitutions.
This duty has been established across the spectrum of the strength of the quality language
that describes the state’s responsibility toward public schooling. Yet a few state courts
have declined to step into the educational adequacy arena, perceiving it as an interference
with the state legislature’s role to provide for public education in the state.

1.3.2. — Evidence of an Inadequate Education

Plaintiffs have brought lawsuits that highlight the inadequacies in the current
systems by detailing problems with the objects of education: the resources/inputs
available in the schools and/or the results/outputs of education. The financial inputs of
education are the items that figured prominently in the previous equity lawsuits of the
first and second waves. Adequacy cases are sometimes characterized by their reliance on
an output rather than input analysis as a basis for finding inadequacy of educational
effort. The concept of adequacy, as one that strives to provide a high minimum quality of

education to all students, would seem to naturally focus the inquiry into the sufficiency of

 

46 R.I. CONST. art. XII, § 1. Sundlun, 662 A.2d at 49-50.
26

the state’s educational effort by examining the accomplishments of its students — the
most frequently used output measure. Yet the adequacy courts have continued to place a
heavy emphasis on educational input measures.

The quality of education supplied though these inputs and outputs is contrasted
with a statement of what students should learn through their education, the education
provided by other, usually wealthier, districts in the state, and/or with surrounding states
that supply their students with quality facilities, staff, equipment, supplies, and course
offerings. If the quality of the inputs and outputs within the districts in question are
significantly lower than that in the comparison set, an inadequate education is being
provided.

On the input side, courts have found insufficient numbers of trained teachers,47
large class size and high student-teacher ratios,48 shortages of school staff,49 inadequate
educational supplies,50 scarce equipment,5 1 limited course offerings,52 inadequate

curricula or teaching of basic subjects,53 school buildings that are overcrowded, in

 

47See, e. g., Lake View Sch. Dist. No. 25 v. Huckabee, 91 S.W.3d 472, 489 (Ark. 2002); McDuffy v. Sec’y
of the Executive Office of Educ., 615 N.E.2d 516, 553 (Mass. 1993); Campaign for Fiscal Equity v. New
York (Campaign III), 801 N.E.2d 326, 333 (N .Y. 2003); DeRolph v. Ohio (DeRolph I), 677 N.E.2d 733,
745 (Ohio 1997).

48 Opinion of the Justices No. 338, 624 So. 2d 107, 133 (Ala. 1993) (quoting fiom lower court decision,
which is included as an appendix to this opinion); Rose v. Council for Better Educ., 790 S.W.2d 186, 197
(Ky. 1989); McDufiy, 615 N.E.2d at 553; Campaign [11, 801 N.E.2d at 335; DeRolph I, 677 N.E.2d at 744;
Campbell County Sch. Dist. v. Wyoming, 907 P.2d 1238, 1253 (Wyo. 1995).

49 Opinion, 624 So. 2d at 133; DeRolph I , 677 N.E.2d at 761(Douglas, J. concurring).

50See, e. g., Opinion 624 So. 2d at 131-32; Lake View 91 S.W.3d at 489-490; Campaign for Fiscal Equity v.
New York (Campaign 11), 719 N.Y.S.2d 475, 513 (App. Div. 2001); DeRolph I, 677 N.E.2d at 744.
510pinion, 624 So. 2d at 134; Lake View 91 S.W.3d at 489-490; Campaign II, 719 N.Y.S.2d at 514;
DeRolph 1, 677 N.E.2d at 742.

52 See, e.g., Opinion, 624 So. 2d at 131-132; Lake View, 91 S.W.3d at 490; Rose, 790 S.W.2d at 197;
McDufiy, 615 N.E.2d at 553; Campaign 11, 719 N.Y.S.2d at 500-501 (discussing the defunding of art and
physical education and the important role these courses play in “supporting a sound basic education”).

53 Opinion, 624 So. 2d at 121-22; see also Kasayulie v. Alaska, NO. 3AN-97-3782 CIV (Alaska Super. Ct.
1999); Roosevelt Elementary Sch. Dist. No. 66 v. Bishop, 877 P.2d 806, 808 (Ariz. 1994); McDufiy, 615
N.E.2d at 553.

27

disrepair, or lack basic necessary components,54 schools that do not meet accreditation
standards,55 disparities in amounts of money spent per students among different districts
within the state,56 disproportionate tax burdens among districts within the state,57 and
Significantly lower amounts spent on education than in other states58 to be relevant in
their inquiry.

In fact, the Ohio Supreme Court based its 1997 adequacy decision on
overwhelming evidence of insufficient educational inputs, saying that “many districts are
‘Starved for funds,’ and lack teachers, buildings, or equipment. These school districts,
plagued with deteriorating buildings, insufficient supplies, inadequate curricula and
technology, and large student-teacher ratios, desperately lack the resources necessary to
provide students with a minimally adequate education.”59

Output measures that have been used by the courts as a basis for finding the

quality of the education provided inadequate include low standardized test scores,60 high

 

54 See Columbia Falls Sch. Dist. No. 6 v. Montana, 109 P.3d 257, 263 (Mont. 2005); Campaign 1], 719
N.Y.S.2d at 500-508; DeRolph I, 677 N.E.2d at 742; Campbell County Sch. Dist. v. Wyoming, 907 P.2d
1238, 1255 (Wyo. 1995).

55 Opinion, 624 So. 2d at 127-128.

56 Id. at 116; Rose, 790 S.W.2d at 199; McDufiy, 615 N.E.2d at 552; Helena Elementary Sch. Dist. No. 1 v.
Montana, 769 P.2d 684, 686 (Mont. 1989); Abbott v. Burke, 575 A.2d 359, 374 (NJ. 1990); Hoke County
Bd. of Educ. v. North Carolina, 599 S.E.2d 365, 373 (N .C. 2004); DeRolph I, 677 N.E.2d at 758-59;
Edgewood Indep. Sch. Dist. v. Kirby (Edgewood I), 777 S.W.2d 391, 392 (Tex. 1989).

57 Claremont Sch. Dist. v. Governor (Claremont II), 703 A.2d 1353, 1356 (NH. 1997); DeRolph I, 677
N.E.2d at 745-746; Edgewood I, 777 S.W.2d at 393.

58 Opinion, 624 So. 2d at 138; Lake View Sch. Dist. No. 25 v. Huckabee, 91 S.W.3d 472, 488 (Ark. 2002).
59 DeRolph I, 677 N.E.2d at 745.

60 See, e. g., Lake View, 91 S.W.3d at 488-89; Rose, 790 S.W.2d at 197; Bradford v. Md. State Bd. of
Educ., Case No. 95258055/CL202511H] 101-105 (Baltimore City Cir. Ct., Aug. 20, 2004) (stating that
Baltimore City student performance is not up to par with state requirements, or state averages, “at every
grade level and on every test”); Hoke, 599 S.E.2d at 383; Campaign for Fiscal Equity v. New York
(Campaign III), 801 N.E.2d 326, 339-340 (N .Y. 2003); But see Columbia Falls v. Montana, 109 P.3d 257,
263 (Mont. 2005) (holding that good student performance on standardized achievement tests are not the
only measurement of a quality education system).

28

drop out rates among high school students,61 low graduation rates,62 high college
remediation rates,63 and insufficient preparation for the workforce.64

For example, North Carolina’s Supreme Court in a 2004 decision found that “an
inordinate number of Hoke County students have consistently failed to match the
academic performance of their statewide public school counterparts and that such failure,
measured by their [academic] performance. . ., their dropout rates, their graduation rates,
their need for remedial help, their inability to compete in the job markets, and their

”65

inability to compete in collegiate ranks, constituted a “clear showing that they have

failed to obtain a Leandro-comporting education.”66
Thus, courts have considered the quality of both the outcomes of education such
as student test scores and graduation rates along with the more traditional concern for the
inputs of education that include money, supplies, equipment, curricula, buildings, and
staff when making their determinations about the suitability of the state’s educational
efforts.
1.4 — The Components of an Adequate Educational System
The three components of educational adequacy that have been addressed by the
courts are funding, goals, and accountability. The intent of the proponents of the

adequacy lawsuits is to find the current level of state funding for education and the

quality of education provided constitutionally insufficient. To do this, many courts have

 

61 Opinion 624 So. 2d at 136-37; Bradford, Case No. 95258055/CL20251 at 111] 113-114; Hoke, 599 S.E.2d
at 384.

62 Lake View, 91 S.W.3d at 488; Bradford, Case No. 95258055/CL20251 at 1] 115; Hoke, 599 S.E.2d at
384 Campaign III, 801 N.E.2d at 336-37.

63 Opinion, 624 So. 2d at 137; Lake View , 91 S.W.3d at 488; Hoke, 599 S.E.2d at 385.

64 Hoke, 599 S.E.2d at 384.

65 Id. at 386.

66 Id. Leandro is the previous North Carolina court decision that found the educational system to be
inadequate. See Leandro v. North Carolina, 488 S.E.2d 249 (N .C. 1997).

29

defined the goals of a constitutionally adequate education, (i.e. the qualities, skills, and
characteristics a child would need to effectively function in society today), as a way of
measuring the sufficiency of the funding and the educational program. In addition, a few
courts have acknowledged that just having ftmding and standards are not enough to
guarantee the desired results; a system to hold schools accountable for accomplishing the
learning is also needed.67

1.4.1 — Funding

At the core of the adequacy lawsuits is their challenge to the existing state school
finance systems. A foundational principle in adequacy cases is that there is a causal link
between the amount of money spent on education and the educational opportunity offered
to the students. One court noted, “[I]ncreased educational resources, if properly deployed,
can have a significant and lasting effect on student performance.”68

The adequacy decisions clarify the states’ responsibility for funding their public
school systems. They declare that it is a state, not a local, duty to adequately fund the
schools in light of the state constitution’s requirement that its government establish and

maintain the public education system.69 Because of the constitutional stature of the duty

to educate, a few courts have declared it to be the state’s first firnding priority over the

 

67 Claremont Sch. Dist. v. Governor (Claremont IV), 794 A.2d 744, 751 (N .H. 2002).

68 Campaign for Fiscal Equity v. New York (Campaign 11), 719 N.Y.S.2d 475, 525 (App. Div. 2001); see
also Opinion, 624 So. 2d at 140-41; Lake View, 91 S.W.3d at 498; Rose v. Council for Better Educ., 790
S.W.2d 186, 198 (Ky. I989); McDuffy v. Sec’y of the Executive Office of Educ., 615 N.E.2d 516, 552
(Mass. 1993); Abbott v. Burke, 575 A.2d 359, 363 (N .J. 1990); (“Money can make a difference if
effectively used, it can provide students with an equal educational opportunity, a chance to succeed”); cf
Edgewood Indep. Sch. Dist. v. Kirby (Edgewood I), 777 S.W.2d 391, 393 (Tex. 1989) (“The amount of
money spent on a student’s education has a real and meaningful impact on the educational opportunity
offered that student”).

69 See Opinion, 624 So. 2d at 146; Lake View v. Huckabee, No. 1992-5318, #49 (Ark. Ch. Ct., May 25,
2001); Roosevelt Elementary Sch. Dist. No. 66 v. Bishop, 877 P.2d 806, 813 (Ariz. 1994); Rose, 790
S.W.2d at 205; McDufif'y, 615 N.E.2d at 548; Claremont School District v. Governor (Claremont II), 703
A.2d 1353, 1356 (N .H. 1997); DeRolph v. Ohio (DeRolph I), 677 N.E.2d 733, 745 (Ohio 1997).

30

provision of all other government services.70 In addition, some courts have held education
funding cannot be reliant on local capacity to fund.7| The revenue sources must be
dependable, not derived from discretionary levies or taxes that voters can choose not to
enact. 72 A number of states do allow for local revenues to be part of the basic funding for
an adequate education,73 but their reliance on local funding sources cannot be the cause
of the disparities among districts in the state74 or be based on unreasonable and
inequitable tax burdens.75

At its essence, educational adequacy requires that each district within the state
have enough money to offer its students a basic quality education. This is an absolute
level of sufficiency rather than a relative standard like that traditionally associated with
the educational finance equity cases of the past, which centered on comparing spending
across districts. The level of funding provided by the state must be enough in every
district to afford the substantive level of education that is mandated by the state
constitution.76 To establish this standard, the courts have called for sufficient educational
financial support to do the following:

0 to provide an adequate education,77

0 to meet the constitutional mandate,78

 

70 Rose, 790 S.W.2d at 21 1; Seattle Sch. Dist. No. 1 v. Washington, 585 P.2d 71, 91 (Wash. 1978);
Campbell County Sch. Dist. v. Wyoming, 907 P.2d 1238, 1279 (Wyo. 1995).

71 See, e.g. Rose, 790 S.W.2d at 21 1; McDufiy, 615 N.E.2d at 555 (Mass. 1993); Campbell, 907 P.2d at
1274; DeRolph I, 677 N.E.2d at 745, 747.

72 Seattle, 585 P.2d at 97.

73 Claremont II, 703 A.2d at 1360; Robinson v. Cahill, 303 A.2d 273, 292 (NJ. 1973); Leandro v. North
Carolina, 488 S.E.2d 249, 256 (N .C. 1997); Edgewood IV, 917 S.W.2d at 730.

74 Lake View No. 1992-5318; Roosevelt, 877 P.2d at 815; DeRolph v. Ohio (DeRolph II), 728 N.E.2d 993,
1013 (Ohio 2000).

75 Claremont II, 703 A.2d at 1360.

76 See Opinion of the Justices No. 338, 624 So. 2d 107, 165-66 (Ala. 1993); see generally Pinto v. Ala.
Coal. for Equity, 662 So. 2d 894 (Ala. 1995); Montoy v. Kansas, 102 P.3d 1160, 1164 (Kan. 2005); Rose,
790 S.W.2d at 213; Abbott v Burke, 575 A.2d 359, 368 (NJ. 1990); Campaign for Fiscal Equity v. New
York (Campaign 1), 655 N.E.2d 661, 667 (N.Y. 1995); Edgewood IV, 917 S.W.2d 717, 730-731.

77 Rose, 790 S.W.2d at 213.

31

o to provide basic education,79

0 to provide equal access to a sound basic education,80
0 to offer “the opportunity for a sound basic education” in every school,81 and
o to ensure enough money so that students have a chance to succeed because of
the educational opportunity provided, not in spite of it.82
In this manner, adequacy requires the state governments to furnish the money for a basic
quality education in all of the districts throughout the state.
The sufficiency of a state’s school funding can be defined (1) by its provision of
educational inputs as one in which “each and every school district in the state has an
ample number of teachers, sound buildings ..., and equipment sufficient for all students

”83

to be afforded an educational opportunity, or (2) by the system’s outputs as one in

which the “amount of revenue per pupil enab1e[s] a student to acquire knowledge and
skills necessary to participate productively in society ....”84
Adequacy requires the state to provide equality of educational Opportunity to each
student to achieve the constitutionally mandated level of education. It does not require
strict horizontal equity so that each child within the state will have the same amount of
money spent on his or her education.85 Vertical equity funding disparities are allowed by

several adequacy courts to compensate for differences in regional costs and student needs

that translate into higher costs to supply the same quality of education throughout the

 

78 McDuffy v. Sec’y of the Executive Office of Educ., 615 N.E.2d 516, 556 (Mass. 1993).

79 Seattle Sch. Dist. No. 1 v. Washington, 585 P.2d 71, 95 (Wash. 1978).

80 Leandro v. North Carolina, 488 S.E.2d 249, 256 (N .C. 1997).

81 Campaign for Fiscal Equity v. New York (Campaign [11), 801 N.E.2d 326, 348 (N .Y. 2003).

82 DeRolph v. Ohio (DeRolph l), 677 N.E.2d 733, 746 (Ohio 1997).

83 DeRolph v. Ohio (DeRolph II), 728 N.E.2d 993, 1001 (Ohio 2000).

84 Lake View Sch. Dist., No. 25 v. Huckabee, No. 1992-5318 # 47(Ark. Ch. Ct. May 25, 2001).

85 Roosevelt v. Bishop, 877 P.2d 806, 814 (Ariz. 1994); Abbott v. Burke, 575 A.2d 359, 369 (NJ. 1990);
DeRolph I, 677 N.E.2d at 746; Edgewood Indep. Sch. Dist. v. Kirby (Edgewood l), 777 S.W.2d 391 , 397
(Tex. 1989).

32

state. 86 Numerous courts also allow for local communities to supplement the basic
quality education required by the state constitution to provide for a better-than-adequate
education.87 Even though these adjustments and supplements will result in unequal
revenues across districts, the courts that allow them have found that they are consistent
with the state’s constitutional duties to provide its citizens with an adequate education.
Looking at the twenty-one adequacy court decisions represented in the table
below,88 a total of thirteen states89 specifically allow for variance in funding among
districts. Three of these provide for regional and student population cost differences,90
five states permit localities to supplement state established minimum district funding

levels,9| and the remaining five states sanction both types of funding variations.92

 

86 Opinion of the Justices No. 338, 624 So. 2d 107, 1] 115 (Ala. 1993); Montoy v. Kansas (Montoy I), 102
P.3d 1160, 1164-1 165 (Kan. 2005); Bradford v. Md. State Bd. of Educ., Case No. 95258055/CL20251 1|
38-39 (Baltimore City Cir. Ct. Aug. 20, 2004); Robinson v. Cahill, 303 A.2d 273, 297-98 (NJ. 1973);
Abbott, 575 A.2d at 375; see also Campaign for Fiscal Equity v. New York (Campaign 11), 719 N.Y.S.2d
475, 517 (App. Div. 2001) (stating that while the State is required only to “provide the opportunity for a
sound basic education,” that opportunity “must be placed within reach of all students,” and the State is not
relieved of its constitutional obligations “when public school students present with socio-economic
deficits”); Campaign III, 801 N.E.2d at 348; Edgewood I, 777 S.W.2d at 398; Campbell County Sch. Dist.
v. Wyoming, 907 P.2d 1238, 1278-79 (Wyo. 1995).

87 Lake View, No. 1992-5318 # 125; Roosevelt, 877 P.2d at 815; Montoy v. Kansas (Montoy II), 112 P.3d
923, 937 (Kan. 2005); Rose v. Council for Better Educ., 790 S.W.2d 186, 21 1-12 (Ky. 1989); Campbell
County Sch. Dist. v. Wyoming, 907 P.2d 1238, 1274 (Wyo. 1995); Claremont Sch. Dist. v. Governor
(Claremont II), 703 A.2d 1353, 1360 (N .H. 1997); Robinson, 303 A.2d at 298; Leandro v. North Carolina,
488 S.E.2d 249, 256 (N .C. 1997); DeRolph l, 677 N.E.2d at 746; Edgewood I, 777 S.W.2d at 398.

88 This table categorizes states based on a specific reference to the relevant issue within a court’s decision.
Other states may permit supplemental educational revenues or adjustments within the context of adequacy,
but it is not specifically mentioned within a court decision.

89 Alabama, Arizona, Arkansas, Kansas, Kentucky, Maryland, New Hampshire, New Jersey, New York,
North Carolina, Ohio, Texas, and Wyoming.

90 Alabama, Maryland, and New York.

91 Arkansas, Kentucky, New Hampshire, North Carolina, and Ohio.

92 Arizona, Kansas, New Jersey, Texas and Wyoming.

33

Table 1.1 — Funding Comparison

 

 

 

Localities Localities
Vertical Can Vertical Can
Equity Supplement Equity Supplement
8 3
*Alabama Yes New . Yes
Harnpshrre
‘Alaska New Jersey Yes Yes
Arizona Yes Yes New Mexico
J‘Arkansas Yes New York Yes
Idaho North Carolina Yes
Kansas Yes Yes Ohio Yes
.Kentucky Yes South Carolina
Maryland Yes Texas Yes Yes
Massachusetts Washington
*West Virginia
Montana No I"Wyoming Yes Yes

 

 

 

 

 

 

 

* Denotes Court decisions that are based in part on state equal protection clauses.93

To accomplish the funding of an adequate education, most states begin with an
equalization of revenues concept, similar to that promoted by horizontal equity. Adequate
educational funding promotes this revenue equalizing principle by:

0 eliminating large disparities in funding — Kentucky,94 Montana,95 New

Jersey,96 & Texas,97 or in educational offerings — Kentucky-98 between richer

and poorer school districts,

 

93 See Appendix 1.1 for case names.

94 Rose v. Council for Better Educ., 790 S.W.2d 186, 216 (Ky. 1989).

95 Helena Elementary Sch. Dist. No. l v. Montana, 769 P.2d 684, 690 (Mont. 1989).
96 Abbott v. Burke (Abbott I), 495 A.2d 376, 388 (NJ. 1985).

97 Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391, 397-398 (Tex. 1989).

98 Rose, 790 S.W.2d at 198; 213.

34

0 providing substantially equal educational revenues to rich and poor districts —
New Jersey” & Texas,100

0 assuring comparable funding to every school district — New Hampshire,’0'

0 funding in an equitable manner — Montana,“)2 and

o distributing funds equitably and evenly — T exas,103 and

0 supplying “sufficient funds to educate children on substantially equal terms”

Arizona. ’04
Once a base level of funding is determined, courts in eight states provide for the

adjustment of educational revenues to account for differences in the cost of educating

students in specific regions or groupings.105 The Kansas Supreme Court calls for a

financing formula with equitable distribution relative to the actual costs of education. '06

Similarly, the Arkansas County Chancery Court explained that the dollar amount that is

“adequate” is a function of many variables, including the purchasing power of a dollar in

a given locality, characteristics of students and other factors such as population sparsity

and school size.’O7
Finally, a total of ten adequacy courts allow for the supplementation of

educational revenues by localities.108 The Kansas Supreme Court explained that once the

legislature has provided suitable funding for the state school system, there may be

 

99 Abbott v. Burke (Abbott II), 575 A.2d 359, 408 (NJ. 1990).

100 Edgewood, 777 S.W.2d at 397.

101 Claremont Sch. Dist. v. Governor (Claremont II), 703 A.2d 1353, 1360 (N .H. 1997).

102 Helena Elementary Sch. Dist. No. I v. Montana, 769 P.2d 684, 690 (Mont. 1989).

103 Edgewood, 777 S.W.2d at 398.

104 Roosevelt v. Bishop, 877 P.2d 806, 814 (Ariz. 1994).

105 Alabama, Arizona, Kansas, Maryland, New Jersey, New York, Texas, and Wyoming.

106 Montoy v. Kansas (Montoy III), 112 P.3d 923, 937-39 (Kan. 2005).

107 Lake View Sch. Dist. No. 25 v. Huckabee, No. 1992-5318, 47 (Ark. Ch. Ct. May 25, 2001).
108 Arizona, Arkansas, Kansas, Kentucky, New Hampshire, New Jersey, North Carolina, Ohio, Texas and
Wyoming.

35

nothing in the constitution that prevents the legislature from allowing school districts to
raise additional funds for enhancements to the constitutionally adequate education
already provided. ’09
Adequacy can be characterized as requiring substantial equality of educational
funding throughout the state at a level that permits a basic quality education to be
supplied.1 '0 It generally does not obligate a state to supply equal amounts of financial
resources to each district. Instead, it calls for a basic level of funding necessary to provide
the required level of educational quality. This amount can be supplemented based on
regional and student group cost differences and local revenue enhancement.
1.4.2 - The States’ Teaching Responsibilities — Education Goals1 '1
Courts that have been asked to consider adequacy challenges interpret their state
constitutions’ education clause to determine whether a duty to educate exists and what it
entails. Of the states whose courts have addressed the issue, ultimately all of the courts
have found a governmental obligation to educate the children within the state. The courts
stipulate that children be given the following types of education:

0 adequate education — Arkansas,112 Kansas,113 Kentucky, ’ M Maryland,l ’5

Massachusetts,’ 16 New Hampshire, ”7 Ohio, ”8

 

109 Montoy III, 112 P.3d at 937.

110 But see Leandro v. North Carolina, 488 S.E.2d 249, 256-57 (N .C. 1997), in which the court rejects this
particular wording when it calls for equal access to a sound basic education but not substantially equal
funding or educational advantages in every district. This court allows for local supplementation and
discusses the impracticality of attempting to equalize funding or educational advantages across the state.
111 This discussion is limited to the education goals created and adopted by the courts. Other educational
goals that were developed by the state legislature or department of education are not included here.

112 Lake View Sch. Dist. No. 25 v. Huckabee, 91 S.W.3d 472, 492 (Ark. 2002).

113 See Montoy III, 112 P.3d at 937.

114 Rose v. Council for Better Educ., 790 S.W.2d 186, 211 (Ky. 1989).

115 Bradford v. Md. State Bd. of Educ., Case No. 95258055/CL20251 1[ 57 (Baltimore City Cir. Ct. Aug.
20, 2004). .

116 McDuffy v. Sec’y of the Executive Office of Educ., 615 N.E.2d 516, 519 n.8 (Mass. 1993). In this case
the court uses the term “adequate” but thinks it is redundant with the term “education.”

36

0 a minimally adequate education — Alabama,119 New York,120 South

Carolina,121

0 a basic education — Washington,l22

0 a sound basic education — New York,123 North Carolina,’24
’ ' 125 126 . 127

0 a qualrty education — Alabama, Montana, Wyoming,

0 a proper education 4 Wyoming,128

. . 2
e a suitable educatIon — Kansas,1 9

0 a high quality education — West Virginia,130 or

o a thorough and efficient education — New Jersey. '3 1
Although the manner in which the required education is described differs, ultimately, all
of the courts call for schools that meet educational standards and accomplish their
educational goals. As one court explained, the state has a “duty to ensure that the public
schools achieve their object and educate the people.”'32

The courts use similar language to describe the level of access to education

required by the states’ constitutions. The basic requirement is that the state must educate

 

117 Claremont Sch. Dist. v. Governor (Claremont I), 635 A.2d 1375, 1376 (N .H. 1993).

118 DeRolph v. State, (DeRolph l) 677 N.E.2d 733, 745 (Ohio 1997).

119 Opinion of the Justices No. 338, 624 So. 2d 107, 154 (Ala. 1993).

120 Campaign for Fiscal Equity v. New York (Campaign 11), 719 N.Y.S.2d 475, 520 (App. Div. 2001).
121 Abbeville County Sch. Dist. v. South Carolina, 515 S.E.2d 535, 540 (SC. 1999).

122 Seattle Sch. Dist. No. 1 v. Washington, 585 P.2d 71, 95 (Wash. 1978).

123 Campaign for Fiscal Equity v. New York (Campaign 1), 655 N.E.2d 661, 665 (N .Y. 1995).
124 Leandra v. North Carolina, 488 S.E.2d 249, 254 (NC 1997).

125 Opinion of the Justices No. 338, 624 So. 2d 107, 154 (Ala. 1993).

126 Helena Elementary Sch. Dist. No. l v. Montana, 769 P.2d 684, 689 (Mont. 1989).

127 Campbell County Sch. Dist. v. Wyoming, 907 P.2d 1238, 1258 (Wyo. 1995).

128 Id. at 1259.

129 Montoy v. Kansas, 102 P.3d 1160, 1164 (Kan. 2005).

130 See Pauley v. Kelly, 255 S.E.2d 859, 878 (W. Va. 1979).

131 New Jersey — all Robinson and Abbott decisions. See Appendix 1.1.

132 McDuffy v. Sec’y of the Executive Office of Educ., 615 N.E.2d 516, 526 (Mass. 1993).

37

all children133 and that each child must have a chance to succeed because of the

134 To describe the level of

educational opportunity provided by the state, not in Spite of it.
educational opportunity that the states need to offer, the courts stipulate that child be
given:

0 an Opportunity — New York,135 North Carolina,”’6 South Carolina,137

0 the same opportunity and access — Kentucky,138

0 a substantially equal or equitable opportunity — Alabama,139 or

0 an equal opportunity —- Arkansas,I40 Kentucky,141 Montana,'42 New Jersey,143
Wyoming. ’44
However the courts describe it, this opportunity is the right of all children to have
access to an adequate education. It encompasses the basic components of education —

5

Including teachers,l4 curricula,I46 facrlItIes,147 and Instruments of learning1 8— so that

 

133 Id. at 553.

134 DeRolph v. Ohio (DeRolph I), 677 N.E.2d 733, 746 (Ohio 1997).

135 Campaign for Fiscal Equity v. New York, 655 N.E.2d 661, 666 (N.Y. 1995).

136 Leandro v. North Carolina, 488 S.E.2d 249, 255 (NC. 1997).

137 See Abbeville County Sch. Dist. v. South Carolina, 515 S.E.2d 535, 541 (SC. 1999).

138 Rose v. Council for Better Educ., 790 S.W.2d 186, 211 (Ky. 1989).

139 Pinto v. Ala. Coal. for Equity, 662 So. 2d 894, 896 (Ala. 1995).

140 Lake View Sch. Dist. No. 25 v. Huckabee, 91 S.W.3d 472, 492 (Ark. 2002).

141 Rose, 790 S.W.2d at 212.

142 Helena Elementary Sch. Dist. No. 1 v. Montana, 769 P.2d 684, 689-90 (Mont. 1989).

143 See Robinson v. Cahill, 303 A.2d 273, 295 (NJ. 1973) (holding that the state has an “obligation to
afford all pupils that level of instructional opportunity which is comprehended by a thorough and efficient
system of education ...”).

144 Campbell County Sch. Dist. v. Wyoming, 907 P.2d 1238, 1266 (Wyo. 1995).

This language is typically thought of in reference to the equal protection clause of the state constitutions.
Alabama, Arkansas, West Virginia, and Wyoming are states in which the courts specifically found state
equal protection clause violations in addition to an education article or adequacy violation. Therefore, it is
not surprising that all of these states use a variation of the equal opportunity language to specify the type of
access to education required. Montana’s education clause specifically requires equal educational
opportunity. The New Jersey plaintiffs brought an equal protection clause challenge, but the courts decided
only on education clause grounds.

145 Helena, 769 P.2d at 691. Although the court chose not to address specific elements that constitute an
“equal educational opportunity,” it did name teachers as one of the “additional factors” that are a
“significant part of the education of each person in Montana.” ld. Campaign for Fiscal Equity v. New York
(Campaign I), 655 N.E.2d 661, 666 (NY 1995).

38

children living in all areas of the state, regardless of the wealth of the communities within
which they live or their own personal economic circumstances, are presented with the
opportunity to acquire the essential competencies that equate to an adequate education149
thereby allowing them to achieve basic educational equality with their more advantaged
peers. ’50
Access to education does not mean, however, that each district will have equality
in educational resources or financing. The North Carolina Supreme Court explained that
although access to an adequate education must be provided equally in every school
district, the constitution does not require substantially equal educational programs in all
school districts. In some instances, the playing field must be leveled by providing poorer
districts with more money. In others, the educational opportunities in a community will
be supplemented beyond the level of an adequate education through voluntary local
funding. Thus, the term “substantial equality” most accurately describes the level of
educational opportunities required by the adequacy courts.‘5 1 The substantial equality of
opportunity is found in the state’s provision of an adequate education within the reach of

all students152 within the state while inequality in the amount actually spent on the

education and the supplemental programs offered may vary from district to district.

 

146 Lake View Sch. Dist. No. 25 v. Huckabee, 91 S.W.3d 472, 500 (Ark. 2002); Campaign I, 655 N.E.2d
at 666.

147 Lake View, 91 S.W.3d at 500; Campaign 1, 655 N.E.2d at 666.

148 Lake View, 91 S.W.3d at 500; Campaign 1, 655 N.E.2d at 666.

149 Pinto v. Ala. Coal. for Equity, 662 So. 2d 894, 896 (Ala. 1995); Rose v. Council for Better Educ., 790
S.W.2d 186, 211 (Ky. 1989).

150 Abbott v. Burke, 575 A.2d 359, 403 (NJ. 1990).

151 But see Leandro v. North Carolina, 488 S.E.2d 249, 256-57 (NC. 1997), that says you cannot call so
much variation “substantial equality.”

152 Campaign for Fiscal Equity v. New York (Campaign 11), 719 N.Y.S.2d 47 5, 517 (App. Div. 2001).

39

1.4.2.1 — What this Duty Entails — Expectations for Student
Performance
While it is clear that states have a duty to provide an education to their children,
the parameters of what this education encompasses are not immediately obvious. The
training of students through education may be understood in its totality as comprising:
all that series of instruction and discipline which is intended to enlighten
the understanding, correct the temper, and form the manners and habits of
youth, and fit them for usefulness in the future. In its most extended
signification it may be defined, in reference to man, to be the act of

developing and cultivating the various physical, intellectual, aesthetic and
moral faculties.153

Translating this broad definition into practice, the courts have identified three general
roles that public education is intended to prepare students to perform in society. Schools
should develop the intellectual, emotional, and moral capabilities of students as
individuals, workers, and participants in our political system. As one court noted, “The
State’s constitutional duty embraces broad educational opportunities needed in the
contemporary setting to equip our children for their role as citizens and as potential
competitors in today’s market as well as in the marketplace of ideas.”154
1.4.2.1.1 — Role as citizens/individuals — Intellectual pursuits -
Alabama, Kentucky, Massachusetts, New Hampshire, New
Jersey, New York, North Carolina, South Carolina, Texas,
Washington, and West Virginia
As one of its primary goals, education should prepare children to function as

individual adults who possess a basic understanding of the world, who are capable and

self-aware, and who interact with others in a complex and rapidly changing society.

153 Seattle Sch. Dist. No. 1 v. Washington, 585 P.2d 71, 94 (Wash. 1978).
154 1d,

40

Many courts have indicated that a basic understanding of our complex society
should be promoted in the public schools by teaching what has traditionally been seen as
the academic subjects.‘55 This includes a foundational knowledge of the fields of
mathematics,156 physical science,157 and language arts. ’58 It also encompasses an

15 9 visual art,'60 performance art,l6land

awareness of and ability to appreciate music,
literature. ’62

In addition to this basic academic knowledge, some courts have directed the
schools to educate the whole person, focusing not only their minds, but also their bodies
and their emotions. Promoting knowledge of oneselfl 63 and understanding of one’s
physical and mental healthI64 are important components to a child’s education. In
addition, every student should receive support and guidance so he or she feels a sense of
self-worth, an ability to achieve, and is encouraged to live up to his or her full human

1.165

potentia Moreover, courts call for students to interact with others in society. To

 

155 Of course these subjects are also important to train students who are participants in our government
and economy.

156 Campaign for Fiscal Equity v. New York (Campaign I), 655 N.E.2d 661, 666 (N .Y. 1995); Leandra,
488 S.E.2d at 255; Abbeville County Sch. Dist. v. South Carolina, 515 S.E.2d 535, 540 (SC. 1999).

157 Leandra, 488 S.E.2d at 255; Abbeville, 515 S.E.2d at 540.

158 See Campaign 1, 655 N.E.2d at 666 (N .Y. 1995) (“Children are also entitled to reasonably up-to-
date basic curricula such as reading, writing ”); Leandro, 488 S.E.2d at 255; see also Abbeville, 515
S.E.2d at 540 (stating that the abilities of reading, writing, and speaking English should also be taught).
159 See Abbott v. Burke, 575 A.2d 359, 397 (NJ. 1990); Pauley v. Kelly, 255 S.E.2d 859, 877 (W. Va.
1979)

160Rose v. Council for Better Educ., 790 S.W.2d 186, 212 (Ky. 1989); McDuffy v. Sec’y of the Executive
Office of Educ., 615 N.E.2d 516, 554 (Mass. 1993); Abbott, 575 A.2d at 364; Claremont Sch. Dist. v.
Governor (Claremont II), 703 A.2d 1353, 1359 (N .H. 1997); Campaign for Fiscal Equity v. NY (Campaign
11), 719 N.Y.S.2d 475, 500 (App. Div. 2001); Pauley, 255 S.E.2d at 877 (W. Va. 1979).

161 Campaign 11, 719 N.Y.S.2d at 500-01; Pauley, 255 S.E.2d at 877.

162 Abbott, 575 A.2d at 397; Pauley, 255 S.E.2d at 877.

163 Pinto v. Ala. Coal. for Equity, 662 So. 2d 894, 896 (Ala. 1995); Rose, 790 S.W.2d at 212; McDufiy,
615 N.E.2d at 554; Claremont II, 703 A.2d at 1359; Pauley, 255 S.E.2d at 877.

164 Pinto, 662 So. 2d at 896; Rose, 790 S.W.2d at 212; McDufifv, 615 N.E.2d at 554; Claremont II, 703
A.2d at 1359; Seattle Sch. Dist. No. 1 v. Washington, 585 P.2d 71, 94 (Wash. 1978); see also Pauley, 255
S.E.2d at 877 (defining education as “the development of mind, body and social morality ”).

165 Pinto, 662 So. 2d at 896.

41

facilitate compatibility with others, students should learn oral and written
communications skills166 and social ethics or morality. '67
To this end, courts envision future adult citizens who are equipped to fully
participate in the life of their community and society.168 With their academic foundation,
self-knowledge, and interactive skills, these adults will be able to inquire, study, evaluate,
and gain maturity and understanding,169 to fimction at the state, national and international
levels,170 to appreciate their cultural and historical heritage,”' and the cultural heritage of
others,172 to share their ideas with others,’73 and to exercise their First Amendment
freedoms.174 They will also be capable of monitoring and contributing to their own
physical and mental well-being.175 If successful, the state will have cultivated the
intellectual, aesthetic, and moral faculties of each individual child.'76
1.4.2.1.2 — Competitors in market — Career pursuits —
Alabama, New York, South Carolina, and West Virginia.
The adequacy courts have identified preparation of students to compete for and
perform their future career pursuits as one of the main goals of education.177 These
pursuits fall into two categories: academic and vocational. In the academic realm,

students compete for enrollment into post-secondary education programs. In the job

 

166 Id.; Rose., 790 S.W.2d at 212; McDufiy, 615 N.E.2d at 554; Claremont II, 703 A.2d at 1359; Leandro
v. North Carolina, 488 S.E.2d 249, 255 (NC 1997).

167 Seattle, 585 P.2d at 94; Pauley v. Kelly, 255 S.E.2d 859, 877 (W. Va. 1979).

168Abbott v. Burke, 575 A.2d 359, 397 (NJ. 1990).

169 Seattle, 585 P.2d at 72.

170 Pinto, 662 So. 2d at 896.

171 ld.; Rose, 790 S.W.2d at 212; McDuffy, 615 N.E.2d at 554; Claremont II, 703 A.2d at 1359.

172 Pinto, 662 So. 2d at 896.

173 Abbott, 575 A.2d at 397.

174 Seattle, 585 P.2d at 94.

175 Pinto, 662 So. 2d at 896.

176 Seattle, 585 P.2d at 94.

177 See e. g. Pauley v. Kelly, 255 S.E.2d 859, 877 (W. Va. 1979) (describing an efficient education system
as one that prepares its charges to pursue “useful and happy occupations. . .”).

42

market, students vie for gainful employment. The preparation of students for their future
career pursuits is accomplished by the education system through the development of
scholastic and employment skills.I78 Students should receive “sufficient training or

””9 so that they may be

preparation for advanced training in academic or vocational skills
engaged in and make a contribution to the economy.180
The courts have described their desire to produce adults who are competitive in

these fields in different ways. First, some are concerned with students’ career decision-

making process, saying that students Should be equipped “to choose and pursue life work

”131 ”I82

intelligently and that they should be prepared “for useful and happy occupations.
Second, others want students who are successful in securing their desired positions,
saying that they should be prepared to compete on an equal basis with others183 or to
compete favorably with their counterparts in surrounding states,184 across the nation, and

throughout the world185 in academics or in the job market. Third, courts want students

who can competently perform the tasks they undertake. Schools should develop students

 

178 The vocational skills have not been defined by the courts. Academic skills include the foundational
knowledge of mathematics, physical science, and language arts.

179 Pinto, 662 So. 2d at 896; see also Abbeville County Sch. Dist. v. South Carolina, 515 S.E.2d 535, 540
(SC. 1999) (stating that the South Carolina Constitution requires that students “have the opportunity to
acquire academic and vocational skills”); Pauley, 255 S.E.2d 859, 877 (calling for the “development in
every child to his or her capacity of work-training and advanced academic training as the child may
intelligently choose”).

180 Campaign for Fiscal Equity v. New York, 719 N.Y.S.2d 475, 485 (App. Div. 2001).

181 Pinto, 662 So. 2d at 896; Rose v. Council for Better Educ., 790 S.W.2d 186,212 (Ky. 1989); McDuffy
v. Sec’y of the Executive Office of Educ., 615 N.E.2d 516, 554 (Mass. 1993); Claremont Sch. Dist. v.
Governor (Claremont II), 703 A.2d 1353, 1359 (N .H. 1997).

182 Pauley, 255 S.E.2d at 877.

183 Leandro v. North Carolina, 488 S.E.2d 249, 255 (N .C. 1997).

184 Rose, 790 S.W.2d at 212; McDufiy, 615 N.E.2d at 554; Claremont II, 703 A.2d at 1359.

185 Pinto, 662 So. 2d at 896.

43

who can successfully engage in post-secondary education or vocational training186 and
sustain competitive employment. '87
1.4.2.1.3 - Marketplace of ideas—Political System — Political
Pursuits — Alabama, Kentucky, Massachusetts, New
Hampshire, New York, North Carolina, Washington, and West
Virginia
The third key goal of the education system, as defined by the adequacy courts, is
to train students to be future participants in the American political system. To do this,
public schools should teach students basic history and geography,188 and provide them
with a fundamental knowledge of economic and political systems189 and social

191

systems.‘90 Schools should also familiarize students with the government and

governmental processes192 of their state and of the nation.

 

186 See id (“Students [should be given] the opportunity to attain sufficient training, or preparation for
advanced training, in academic or vocational skills, and sufi'icient guidance, to enable each child to choose
and pursue life work intelligently [and] sufficient training, or preparation for advanced training to
compete favorably with their counterparts in Alabama, in surrounding states, across the nation, and
throughout the world, in academics or in the job market”); Rose, 790 S.W.2d at 212 (stating the same
standard as the Pinto court); McDufi5)., 615 So. 2d at 554 (stating the same standard as the Pinto court) ;
Claremont II, 703 A.2d at 1359; Leandra, 488 S.E.2d at 255; Abbeville County Sch. Dist v. South
Carolina, 515 S.E.2d 535, 540 (SC. 1999) (stating that every student must have the “opportunity to acquire
academic and vocational skills”).

187 Campaign for Fiscal Equity v. New York, 719 N.Y.S.2d 475, 487 (App. Div. 2001).

188 Leandra, 488 S.E.2d at 255; See also Pinto, 662 So. 2d at 896 (including history, but not geography);
Abbeville, 515 S.E.2d at 540 (requiring that students be given the opportunity to acquire, inter alia, a
fundamental knowledge “of history and governmental processes”).

189 Pinto, 662 So. 2d at 896; Rose, 790 S.W.2d at 212; McDufljt, 615 N.E.2d at 554; Claremont II, 703
A.2d at 1359; Leandra, 488 S.E.2d at 255; Abbeville, 515 S.E.2d at 540.

190 Pinto, 662 So. 2d at 896; Rose, 790 S.W.2d at 212; McDufifv, 615 N.E.2d at 554; Claremont II, 703
A.2d at 1359; Abbeville, 515 S.E.2d at 540.

191 See Pauley v. Kelly, 255 S.E.2d 859, 877 (W. Va. 1979).

192 See id

44

The aim is to develop productive citizens who are capable of civic engagement193

through intelligent and effective involvement in our political system. '94 This takes two

. 9
forms, first, as members of a Jury195 and second, as voters.l 6

To serve on juries, individuals need to be capable of being impartial, learning
unfamiliar facts and concepts, deciding complex matter that require verbal, reasoning,

math, and science skills, and communicating and reaching decisions with their fellow

jurors. '97

As engaged voters who participate in our political system, these young adults will

198 t

be able to understand the issues that affect their community, state and nation, 0

2

contribute to199 and make informed choices 00 regarding these issues as they relate to

them personally201

or affect their community, state, and nation.202 They will also be able
to choose “among persons and issues that affect [their] own govemance.”2°3 Ultimately,
the goal here is to produce citizens on whom the government may rely to meet its needs
and to further its interests204 thereby ensuring the survival of our open political system205

by producing intelligent and capable members of our political community.

 

193Campaign for Fiscal Equity v. New York (Campaign 11, 719 N.Y.S.2d 475, 487 (App. Div. 2001).
194 Seattle Sch. Dist. No. 1 v. Washington, 585 P.2d 71, 94 (Wash. 1978).

195 Campaign for Fiscal Equity v. New York (Campaign 1), 655 N.E.2d 661, 666 (N .Y. 1995).

196 Campaign 11, 719 N.Y.S.2d at 485.

197 1d.

198 Pinto v. Ala.Coa1. for Equity, 662 So. 2d 894, 896 (Ala.1995); Rose v. Council for Better Educ., 790
S.W.2d 186, 212 (Ky. 1989); McDuffy v. Sec’y of the Exec. Office of Educ., 615 N.E.2d 516, 554 (Mass.
1993); Claremont Sch. Dist. v. Governor (Claremont 1!), 703 A.2d 1353, 1359 (N .H. 1997).

199 Pinto, 662 So. 2d at 896.

200 Id.; Rose, 790 S.W.2d at 212; McDufiS», 615 N.E.2d at 554; Claremont II, 703 A.2d at 1359; Leandra v.
North Carolina, 488 S.E.2d 249, 255 (N .C. 1996); Pauley v. Kelly, 255 S.E.2d 859, 877 (W. Va. 1979).
201 Leandra, 488 S.E.2d at 255.

202Pinta, 662 So. 2d at 896; Leandra, 488 S.E.2d at 255.

203 Pauley, 255 S.E.2d at 877.

204 McDufiji, 615 N.E.2d at 555.

205 Seattle Sch. Dist. No. 1 v. Washington, 585 P.2d 71, 94 (Wash. 1978).

45

1.4.3 — Accountability
The third component of adequacy discussed by the courts is accountability. This
concept demands that states not only provide high standards and sufficient funding for
education, but that they also are held responsible for achieving the substantive level of
education required by their constitution. One court defined it in this manner:
Accountability means that the State must provide a definition of a
constitutionally adequate education, the definition must have standards,
and the standards must be subject to meaningful application so that it is
possible to determine whether, in delegating its obligation to provide a
constitutionally adequate education, the State has fulfilled its duty.206
Accountability is the least developed element of the adequacy lawsuits,207
yet it serves the important function of putting into place a system for monitoring
the state’s progress towards and compliance with its constitutional responsibility
to provide an adequate education to all of its children.208 As one court noted, “[i]f
the State cannot be held accountable for fulfilling its duty, the duty creates no
obligation and is no longer a duty.”209
The mechanisms for holding states responsible for fulfilling their constitutional
responsibilities for public education can be implemented through the adoption of a formal
accountability system or through a series of rulings by the courts on whether the
government has fulfilled its obligations with respect to the state educational system. Two

states with adequacy lawsuits have adopted formal accountability systems and in two

others, courts have called for the creation of one.210 In at least six states, plaintiffs have

 

206 Claremont Sch. Dist. v. Governor (Claremont IV), 794 A.2d 744, 751 (N .H. 2002).

207 See Abbott v. Burke, 693 A.2d 417, 428-29 (N ..1 . 1997).

208 See Lake View Sch. Dist., No. 25 v. Huckabee, No. 1992-5318, # 48 (Ark. Ch. Ct. May 25, 2001)
(“[T]here must be an effective accountability system that holds the schools accountable for results”;
Claremont 1 V, 794 A.2d at 751; DeRolph v. Ohio (DeRolph II), 728 N.E.2d 993, 1018-20 (Ohio 2000).
209 Claremont l V, 794 A.2d at 751.

210 The Massachusetts and Ohio Legislatures adopted formal accountability systems.Hancock v. Comm’r
of Educ., 822 N.E.2d 1134, 1137-38 (Mass. 2005); DeRolph I], 728 N.E.2d at 1017-18. The New York

46

utilized the court system to hold states accountable for providing adequate educational
opportunities to their children?”
1.5 — Conclusion

Adequacy can be seen as another advance in the school reformers’ quest to utilize
the legal system to secure an education system that better serves the needs of all children
within a state. With courts in twenty-one of the twenty-six states that have considered
adequacy claims finding support for the legal theory of adequacy, these reformers have
largely succeeded in the goal of enlisting state courts to advance their desire for sufficient
funding for a quality education for all students within a state. The decisions, however,
form a patchwork of legal precedence on adequacy that was created by the often
ambiguous state constitutional education provisions, in light of the underlying state
school finance systems and the evidence of inadequacy within the existing public school
systems.

To develop a better understanding of the theory of adequacy, this paper examined
these decisions to identify their similarities and differences, providing a comparative
analysis on several key aspects of adequacy theory, cross-referenced to the outcomes in
individual states. The result is a set of similarities that is intended to provide the reader
with a deeper understanding of adequacy and the requirements governing state provision
of a high minimum quality education.

Although this paper is organized around the three components of adequacy—

funding, educational goals, and accountability—these categories are not required to be

 

courts call for the development of one. Campaign for Fiscal Equity. v. New York (Campaign 11]), 801
N.E.2d 326, 345-47 (N.Y. 2003). The New Hampshire Court calls for a meaningful accountability in its
decision. Claremont IV, 794 A.2d at 758.

211 Arizona, New Hampshire, New Jersey, New York, Ohio, and Texas are states that have a series of
adequacy court decisions. See Appendix 1.1 for a list of cases.

47

addressed in a successful adequacy case. Adequacy as a theory is most often associated
with its financial component because these lawsuits, at their essence, have a primary goal
of obligating the states to spend more money on their public school systems. This goal
can be met without defining the specific educational goals the state should pursue in the
education of its children and without providing for an accountability mechanism to
guarantee that its standards are attained. In fact, many would argue that these two
functions fall within the authority of the legislatures, not the courts.212

And so the educational funding question continues to serve as the focus on the
adequacy lawsuits as courts attempt to determine whether their state is providing
sufficient financial resources to fund a high minimum quality education. This adequate
funding level could be represented by either horizontal equity, substantial equality in
access to financial resources, or vertical equity, obligating the state to offer a comparable
base level of educational opportunity to its students throughout the state. Interestingly,
the adequacy rulings typically do not mandate the same level of funding in every district.
Instead, they recognize the state’s ability to provide extra funding for districts whose
student population or physical location translate into higher costs to provide the same
level of educational programs as in other districts. In some instances, they also permit
local communities to supplement the educational offerings in their school districts
beyond the base-level adequate education supplied by the state.

Several adequacy courts did address the relevant educational goals that should be

pursued by the state. They envision an educational system that prepares students to

 

212 See e.g. Coal. For Adequacy and Fimess v. Chiles, 680 So. 2d 400, 407-8 (Fla. 1996); Comm. For
Educ. Rights v. Edgar, 672 N.E.2d 1178, 1193 (111. 1996); Charlet v. Louisiana, 713 So. 2d 1199, 1205 (La.
1998); Marerro v. Pennsylvania, 709 A.2d 956, 965-66 (Pa. 1997); City of Pawtucket v. Sundlun, 662 A.2d
40, 57-59 (RI. 1995).

48

assume their three primary roles in society as: citizens, workers, and participants in the
political system. These courts want schools to develop students as individuals who are
prepared to engage in intellectual pursuits. They should have a general knowledge about
academic subjects, our culture, and our society. Students should also be prepared to
compete for jobs and entrance into higher educational institutions. They must be trained
to assume their roles as productive members of our society. In addition, these courts see
the survival of our democratic form of government as dependent upon our future
members’ ability to intelligently analyze and choose among the issues and alternatives
presented to them in their roles as voters and members of juries.

The issue of holding states accountable for actually achieving the educational
objectives delineated in a few of these cases is something that is not satisfactorily
addressed by most of these decisions. While many courts are motivated by their desire to
not overstep their bounds into an area that is controlled by the legislature, it seems as if
more could be done with this issue. Even in the current climate of standards-based
accountability in this country, which has been heightened by the No Child Left Behind
Act, the accountability measures undertaken by the states through testing and reporting of
results do not begin to address the breadth of the educational goals that the adequacy
courts describe.213 It is possible that these broad intellectual, political, and career goals
are meant to be merely hortatory, ideals that we ascribe to in our democratic society. It is
also likely that these goals would be very difficult to measure. However, if these are the

actual goals of the American educational system, more attention should be paid to

 

213 The No Child Left Behind Act requires only “yearly student academic assessments that
include mathematics, reading or language arts, and science” 20 U.S.C. § 631 1(b)(3)(A).

49

determining how and whether they are being accomplished in the educational program
offered to our children in our public schools.

In this way, the adequacy wave of the school finance reform movement
progresses beyond the previous two waves of reform with an exclusive focus on the
finance of education through measurements of educational inputs, tackling a broader
array of the significant challenges faced by public schools. It encompasses not only the
financial issues, but also the relevant educational goals and achievement results of the
students. With so many state courts siding with adequacy reformers, one should expect to
see further pushes in other states to use adequacy rulings to drive substantive education

reform in years to come.

50

CHAPTER 1 APPENDIX

51

APPENDIX 1.1

Alabama

Ala. Coal. for Equity v. Hunt, CV-90-883-R & CV-91-0117-R (Ala. Cir. Ct. March 31,
1993), in appendix of Opinion of the Justices No. 338, 624 So. 2d 107 (Ala. 1993)
(finding public education system unconstitutional under education and equal protection
clause).

Pinto v. Ala. Coal. for Equity, 662 So. 2d 894 (Ala. 1995) (affirming circuit court
decision regarding the unconstitutionality of public education system).

Ex parte James, 836 So. 2d 813 (Ala. 2002) (sua sponte dismissal of equity funding
case).

Alaska

Kasayulie v. Alaska, NO. 3AN-97-3 782 CIV (Alaska Super. Ct. Sept. 1, 1999) (holding
that the method of financing capital funding project for education unconstitutional under
both the education and equal protection clauses).

Arizona

Roosevelt Elementary Sch. Dist. No. 66 v. Bishop, 877 P.2d 806 (Ariz. 1994) (finding
unconstitutional the financing scheme for public school facilities under the education
clause).

Roosevelt Elementary Sch. Dist. No. 66 v. Bishop, 74 P.3d 258 (Ariz. 2003) (reversing
the lower court’s judgment due to insufficient evidence of inadequate funding for public
school facilities).

Hull v. Albrecht, 950 P.2d 1141 (Ariz. 1997) (new capital funding system not sufficient
to meet education clause requirements).

Hull v. Albrecht, 960 P.2d 634 (Ariz. 1998) (new capital funding system still not
sufficient to meet education clause requirements).

Arkansas

Lake View Sch. Dist. No. 25 v. Huckabee, No. 1992-5318 (Ark. Ch. Ct. May 25, 2001)
(declaring the public school system inequitable and inadequate under the equality and
education provisions).

Lake View Sch. Dist. No. 25 v. Huckabee, 91 S.W.3d 472 (Ark. 2002) (affirming the
lower court decision).

52

Idaho
Idaho Sch. for Equal Educ. Opportunity v. Idaho, 976 P.2d 913 (Idaho 1998) (remanding
case for trial on potential violation of education clause for facilities funding).

Kansas214

Montoy v. Kansas (Montoy II), 102 P.3d 1160 (Kan. 2005)(lack of suitable funding for
middle and large districts with high minority, at-risk, and special education population
violates education clause), supplemental opinion at 112 P.3d 923 (Kan. 2005) (new
financing system still unconstitutionally inadequate because of over-reliance on local
revenues).

Montoy v. Kansas (Montoy III), 138 P.3d 755 (Kan. 2006) (case dismissed because
legislature in substantial compliance with court order on school finance formula).

Kentucky
Rose v. Council for Better Educ., 790 S.W.2d 186 (Ky. 1989) (declaring school system

unconstitutional under education clause).

ngland
Bradford v. Md. State Bd. of Educ., Case No. 9525805 5/CL20251 (Baltimore City Cir.

Ct. Aug. 20, 2004) (finding the Baltimore school system unconstitutionally inadequate).

Massachusetts

McDuffy v. Sec’y of the Executive Office of Educ., 615 N.E.2d 516 (Mass. 1993)
(declaring the educational system unconstitutional under the education clause because it
fails to provide education without regard to the fiscal capacity of the community or
district in which the children live).

Hancock v. Comm’r of Educ., 822 N.E.2d 1134 (Mass. 2005) (rejecting the conclusion
that the State is not meeting its educational obligations, terminating jurisdiction in the
case).

Montana
Helena Elementary Sch. Dist. No. 1 v. Montana, 769 P.2d 684 (Mont. 1989) (finding that
Montana’s public school funding system violates its education clause).

Helena Elementary Sch. Dist. No. 1 v. Montana, 784 P.2d 412 (Mont. 1990) (delaying
the effect of 1989 decision until 1991 to give legislature time to adopt new educational
firnding scheme).

Columbia Falls Sch. Dist. No. 6 v. Montana, 109 P.3d 257 (Mont. 2005) (finding the
educational product of the public school system constitutionally deficient and the funding
insufficient).

 

214 Montoy v. State (Montoy I), 62 P.3d 228 (Kan. 2003) (overturning summary disposition and
remanding case to trial).

53

New Hampshire
Claremont Sch. Dist. v. Governor (Claremont I), 635 A.2d 1375 (N .H. 1993) (finding the
public school finance system violated the education clause).

Claremont Sch. Dist. v. Governor (Claremont II), 703 A.2d 1353 (N .H. 1997) (finding
the educational funding system unconstitutional because of the differing tax burdens

between districts).

Claremont Sch. Dist. v. Governor (Claremont III), 744 A.2d 1107 (N .H. 1999) (declaring
the phase-in feature of property tax system unconstitutional).

Claremont Sch. Dist. v. Governor (Claremont IV), 794 A.2d 744 (N .H. 2002) (holding
that accountability is an essential component of the State’s educational duty, and the
current accountability system constitutionally deficient).

New Jersey
Abbott v. Burke (Abbott I), 495 A.2d 376 (NJ. 1985) (remanding case to administrative

agency).

Abbott v. Burke (Abbott II), 575 A.2d 359 (NJ. 1990) (finding a violation of the
education clause in the poor urban districts).

Abbott v. Burke (Abbott III), 643 A.2d 575 (N .J . 1994) (holding the Quality Education
Act unconstitutional for failing to achieve financial parity for regular education
expenditures between special needs districts and richer districts).

Abbott v. Burke (Abbott IV), 693 A.2d 417 (NJ. 1997) (finding the Comprehensive
Educational Improvement and Finance Act insufficiently addresses the needs of special
needs districts, is not calculated in a manner that relates to student needs, does not
address facilities deficiencies, and does not address the extra educational needs of poor
students).

Abbott v. Burke (Abbott V), 710 A.2d 450 (N J . 1998) (ordering the implementation of
improvement plan that includes preschool).

Abbott v. Burke (Abbott V1), 748 A.2d 82 (NJ. 2000) (finding that the preschool program
is not properly implemented in the poor, urban districts).

Abbott v Burke (Abbott VII), 832 A.2d 891 (NJ. 2003) (ordering the implementation of
the mediated settlement between the parties).

Abbott v. Burke (Abbott VIII), 857 A.2d 173 (NJ. 2004) (relaxing the requirements for
certification of preschool teachers subject to specified conditions).

Abbott v. Burke (Abbott IX), 862 A.2d 538 (N .J . 2004) (ordering the parties to participate
in mediation).

54

Robinson v. Cahill (Robinson 1), 303 A.2d 273 (NJ. 1973) (finding the New Jersey
education funding system unconstitutional because it violates the education clause’s
“thorough and efficient” requirement).

Robinson v. Cahill, 306 A.2d 65 (NJ. 1973).

Robinson v. Cahill, 339 A.2d 193 (NJ. 1975).

Robinson v. Cahill, 351 A.2d 713 (NJ. 1975).

Robinson v. Cahill, 355 A.2d 129 (NJ. 1976).

Robinson v. Cahill, 358 A.2d 457 (NJ. 1976).

New Mexico
Zuni Sch. Dist. v. State, CV-98-14-II (N .M. Dist. Ct, Oct. 14, 1999).

New York
Campaign for Fiscal Equity v. New York (Campaign 1), 655 N.E.2d 661 (N .Y. 1995).

Campaign for Fiscal Equity v. New York (Campaign 1]), 719 N.Y.S.2d 475 (App. Div.
2001)

Campaign for Fiscal Equity v. New York (Campaign III), 801 N.E.2d 326 (N .Y. 2003).
Campaign for Fiscal Equity v. New York (Campaign IV), 816 N.E.2d 50 (N .Y. 2006).

North Carolina
Leandro v. North Carolina, 488 S.E.2d 249 (N .C. 1997).

Hoke County Bd. of Educ. v. North Carolina, 599 S.E.2d 365 (N .C. 2004).

Ohio
DeRolph v. Ohio (DeRolph I), 677 N.E.2d 733 (Ohio 1997).

DeRolph v. Ohio (DeRolph II), 728 N.E.2d 993 (Ohio 2000).
DeRolph v. Ohio (DeRolph III), 754 N.E.2d 1184 (Ohio 2001).
DeRolph v. Ohio (DeRolph IV), 780 N.E.2d 529 (Ohio 2002).

South Carolina
Abbeville County Sch. Dist. v. South Carolina, 515 S.E.2d 535 (SC. 1999).

Texas
Edgewood Indep. Sch. Dist. v. Kirby (Edgewood I), 777 S.W.2d 391 (Tex. 1989).

55

Edgewood Indep. Sch. Dist. v. Kirby (Edgewood II), 804 S.W.2d 491 (Tex. 1991).

Carrollton-Farmers Branch Indep. Sch. Dist. v. Edgewood Indep. Sch. Dist. (Edgewood
III), 826 S.W.2d 489 (1992).

Edgewood Indep. Sch. Dist.v. Meno (Edgewood IV), 893 S.W.2d 450 (Tex. 1995),
modified opinion at Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717 (Tex. 1995).

West Orange-Cove Consol. I.S.D. v. Alanis, 107 S.W.3d 558 (Tex. 2003).

Neeley v. West Orange-Cove Consol. l.S.D., 176 S.W.3d 746 (Tex. 2005).

Washington
Seattle Sch. Dist. No. l v. Washington, 585 P.2d 71 (Wash. 1978).

West Virginia
Pauley v. Kelly, 255 S.E.2d 859 (W. Va. 1979).

Pauley v. Bailey, 324 S.E.2d 128 (W. Va. 1984).

Wyoming
Campbell County Sch. Dist. v. Wyoming (Campbell I), 907 P.2d 1238 (Wyo. 1995).

Wyoming v. Campbell County Sch. Dist. (Campbell II), 19 P.3d 518 (Wyo. 2001).

Wyoming v. Campbell County Sch. Dist. (Campbell III), 32 P.3d 325 (Wyo. 2003).

56

CHAPTER I BIBLIOGRAPHY

57

CHAPTER 1 BIBLIOGRAPHY

Abbeville County Sch. Dist. v. South Carolina, 515 S.E.2d 535 (SC. 1999).
Abbott v. Burke (Abbott I), 495 A.2d 376 (NJ. 1985).

Abbott v. Burke (Abbott II), 575 A.2d 359 (NJ. 1990).

Abbott v. Burke (Abbott III), 643 A.2d 575 (NJ. 1994).

Abbott v. Burke (Abbott IV), 693 A.2d 417 (NJ. 1997).

Abbott v. Burke (Abbott V), 710 A.2d 450 (NJ. 1998).

 

Abbott v. Burke (Abbott VI), 748 A.2d 82 (NJ. 2000).

Abbott v Burke (Abbott VII), 832 A.2d 891 (NJ. 2003).

Abbott v. Burke (Abbott VIII), 857 A.2d 173 (NJ. 2004).

Abbott v. Burke (Abbott IX), 862 A.2d 538 (NJ. 2004).

Ala. Coal. for Equity v. Hunt, CV-90-883-R & CV-9l-01 l7-R (Ala. Cir. Ct. March 31,
1993), in appendix of Opinion of the Justices No. 338, 624 So. 2d 107 (Ala.
1993)

ALA. CONST. art. XIV, § 256.

ALASKA CONST. art. VII, § 1.

ARIZ. CONST. an. XI, § 1.

ARK. CONST. art. XIV, § 1.

Bradford v. Md. State Bd. of Educ., Case No. 95258055/CL20251 (Baltimore City Cir.
Ct., Aug. 20, 2004).

CAL. CONST. art. IX, § 5.
Campaign for Fiscal Equity v. New York (Campaign 1), 655 N.E.2d 661 (N .Y. 1995).

Campaign for Fiscal Equity v. New York (Campaign 11), 719 N.Y.S.2d 475 (App. Div.
2001)

Campaign for Fiscal Equity v. New York (Campaign [11), 801 N.E.2d 326 (N .Y. 2003).

58

Campaign for Fiscal Equity v. New York (Campaign IV), 816 N.E.2d 50 (N .Y. 2006).
Campbell County Sch. Dist. v. Wyoming, 907 P.2d 1238 (Wyo. 1995).

Carrollton-Farmers Branch Indep. Sch. Dist. v. Edgewood Indep. Sch. Dist. (Edgewood
III), 826 S.W.2d 489 (1992).

Charlet v. Louisiana, 713 So. 2d 1199 (La. 1998).

City of Pawtucket v. Sundlun, 662 A.2d 40 (RI. 1995).

Claremont Sch. Dist. v. Governor (Claremont I), 635 A.2d 1375 (N .H. 1993).
Claremont Sch. Dist. v. Governor (Claremont II), 703 A.2d 1353 (N .H. 1997).
Claremont Sch. Dist. v. Governor (Claremont III), 744 A.2d 1107 (N .H. 1999).
Claremont Sch. Dist. v. Governor (Claremont IV), 794 A.2d 744, 751 (N .H. 2002).
Coal. for Adequacy and Fairness v. Chiles, 680 So. 2d 400 (Fla. 1996).

COLO. CONST. art. IX, § 2.

Columbia Falls Sch. Dist. No. 6 v. Montana, 109 P.3d 257 (Mont. 2005).

Comm. for Educ. Rights v. Edgar, 672 N.E.2d 1178 (111. 1996).

CONN. CONST. art. VIII, § 1.

DEL. CONST. art. X, § 1.

DeRolph v. Ohio (DeRolph I), 677 N.E.2d 733 (Ohio 1997).

DeRolph v. Ohio (DeRolph II), 728 N.E.2d 993 (Ohio 2000).

DeRolph v. Ohio (DeRolph III), 754 N.E.2d 1184 (Ohio 2001).

DeRolph v. Ohio (DeRolph 1 V), 780 N.E.2d 529 (Ohio 2002).

Edgewood Indep. Sch. Dist. v. Kirby (Edgewood I), 777 S.W.2d 391 (Tex. 1989).
Edgewood Indep. Sch. Dist. v. Kirby (Edgewood II), 804 S.W.2d 491 (Tex. 1991).
Edgewood Indep. Sch. Dist.v. Meno (Edgewood IV), 893 S.W.2d 450 (Tex. 1995),

modified opinion at Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717 (Tex.
1995)

59

EQUITY AND ADEQUACY IN EDUCATION FINANCE: ISSUES AND PERSPECTIVES 23 (Helen F.
Ladd, Rosemary Chalk & Janet S. Hansen eds., 1999).

Ex parte James, 836 So. 2d 813 (Ala. 2002).
FLA. CONST. art. 1X, § 1.
GA. CONST. art. VIII, § 1, 11 1.

Erica B. Grubb, Breaking the Language Barrier: The Right to Bilingual Education, 9
HARV. C.R. -C.L. L. REV. 52 (1974).

Hancock v. Comm’r of Educ., 822 N.E.2d 1134 (Mass. 2005).

HAW. CONST. art. X, § 1.

Helena Elementary Sch. Dist. No. 1 v. Montana, 769 P.2d 684 (Mont. 1989).
Helena Elementary Sch. Dist. No. 1 v. Montana, 784 P.2d 412 (Mont. 1990).
Hoke County Bd. of Educ. v. North Carolina, 599 S.E.2d 365 (N .C. 2004).
Hull V. Albrecht, 950 P.2d 1141 (Ariz. 1997).

Hull v. Albrecht, 960 P.2d 634 (Ariz. 1998).

IDAHO CONST. art. IX, § 1.

Idaho Sch. for Equal Educ. Opportunity v. Idaho, 976 P.2d 913 (Idaho 1998).
ILL. CONST. art. X, § 1.

IND. CONST. art. VIII, § 1.

Josh Kagan, A Civics Action: Interpreting “Adequacy” in State Constitutions’ Education
Clauses, 78 N.Y.U. L. REV. 2241 (2003).

KAN. CONST. art. VI, § 6(b).

Kasayulie v. Alaska, NO. 3AN-97-3782 CIV (Alaska Super. Ct. 1999).

KY. CONST. § 183.

James S. Liebman & Charles F. Sabel, A Public Laboratory Dewey Barely Imagined: The

Emerging Model of School Governance and Legal Reform, 28 N.Y.U. REV. L. &
Soc. CHANGE 183 (2003).

60

Lake View v. Huckabee, No. 1992-5318 (Ark. Ch. Ct., May 25, 2001).
Lake View Sch. Dist. No. 25 v. Huckabee, 91 S.W.3d 472 (Ark. 2002).
Leandro v. North Carolina, 488 S.E.2d 249 (N .C. 1997).

LA. CONST. art. VIII, § 13(B).

ME. CONST. art. VIII, pt. 1, § 1.

MAKING MONEY MATTER: FlNANCING AMERICA’S SCHOOLS 53 (Helen F. Ladd & Janet S.
Hansen eds., 1999).

Marerro v. Pennsylvania, 709 A.2d 956 (Pa. 1997).

MD. CONST. art. VIII, § 1.

MASS. CONST. pt. 2, ch. V, § 2.

McDuffy v. Sec’y of the Executive Office of Educ., 615 N.E.2d 516 (Mass. 1993).
M1CH.CONST. art. VIII, §§ 1-2.

M1NN.CONST. art. Art. XIII, § 1.

MISS. CONST. art. VIII, § 201.

MO. CONST. art. IX, § 1(a).

MONT. CONST. art. X, § 1.

Montoy V. State (Montoy I), 62 P.3d 228 (Kan. 2003).

Montoy v. Kansas, (Montoy II) 102 P.3d 1160 (Kan. 2005).

Montoy v. Kansas (Montoy III) 138 P.3d 755 (Kan. 2006).

National Access Network, http://www.schoolfunding.info/index.php3.
NEB. CONST. art. VII, § 1.

Neeley v. West Orange-Cove Consol. I.S.D., 176 S.W.3d 746 (Tex. 2005).
NEV. CONST. art. XI, §§ 1-2.

N.H. CONST. pt. 2, art. 83.

61

NJ. CONST. art. VIII, § IV, 11 1.

NM. CONST. art. XII, § 1.

N.Y. CONST. art. XI, § 1.

No Child Left Behind Act, 20 U.S.C. § 6301 et seq. (2002).
NC. CONST. art. IX, § 2(1).

N.D. CONST. art. VIII, §§ 1-4.

Larry J. Obhof, Rethinking Judicial Activism and Restraint in State School Finance
Litigation, 27 HARV. J .L. & PUB. POL’Y 569 (2004).

OHIO CONST. art. VI, § 2.
Opinion of the Justices No. 338, 624 SO. 2d 107 (Ala. 1993).
OR. CONST. art. VIII, § 3.

Joseph S. Patt, School Finance Battles: Survey Says? It’s All Just a Change in Attitudes,
34 HARV. C.R.-C.L. L. REV. 547 (Summer, 1999).

Pauley v. Kelly, 255 S.E.2d 859 (W.Va. 1979).

Pauley v. Bailey, 324 S.E.2d 128 (W. Va. 1984).

PA. CONST. art. 111, § 14.

Pinto v. Ala. Coal. for Equity, 662 So. 2d 894 (Ala. 1995).

Gershon M. Ratner, A New Legal Duty for Urban Public Schools: Effective Education in
Basic Skills, 63 TEX. L. REV. 777 (1985).

R.I. CONST. art. XII, § 1.

Robinson v. Cahill, 303 A.2d 273 (NJ. 1973).
Robinson v. Cahill, 306 A.2d 65 (NJ. 1973).
Robinson v. Cahill, 339 A.2d 193 (NJ. 1975).
Robinson v. Cahill, 351 A.2d 713 (NJ. 1975).

Robinson v. Cahill, 355 A.2d 129 (NJ. 1976).

62

Robinson v. Cahill, 358 A.2d 457 (NJ. 1976).

Roosevelt Elementary Sch. Dist. No. 66 v. Bishop, 877 P.2d 806 (Ariz. 1994).
Roosevelt Elementary Sch. Dist. No. 66 V. Bishop, 74 P.3d 258 (Ariz. 2003).
Rose v. Council for Better Educ., 790 S.W.2d 186 (Ky. 1989).

San Antonio Independent School District v. Rodriguez, 411 US. 1 (1973).
Seattle Sch. Dist. No. 1 V. Washington, 585 P.2d 71 (Wash. 1978).

Steve Smith, Education Adequacy Litigation: History, Trends, and Research, 27 ARK. L.
REV. 107 (2004).

SC. CONST. ANN. art. XI, § 3.

SD. CONST. art. VIII, § 1.

William E. Thro, Issues in Education and Policy: Judicial Analysis During the Third
Wave of School Finance Litigation: The Massachusetts Decision as a Model, 35
BC. L. REV. 597 (1994).

TENN. CONST. art. XI, §12.

TEX. CONST. art. VII § 1.

UTAH CONST. art. X, § 1.

VT. CONST. § 68.

Deborah A. Verstegen, The Law of Financing Education: Towards a Theory of
Adequacy: The Continuing Saga of Equal Educational Opportunity in the Context
of State Constitutional Challenges to School Finance Systems, 23 ST. LOUIS U.
PUB. L. REV. 499 (2004).

VA. CONST. art. VIII, § 1.

WASH. CONST. art. IX, §§ 1-2.

West Orange-Cove Consol. I.S.D. v. Alanis, 107 S.W.3d 558 (Tex. 2003).

W. VA. CONST. art. XII, § 1.

WIS. CONST. art. X, § 3.

63

Wyoming v. Campbell County Sch. Dist. (Campbell 11), 19 P.3d 518 (Wyo. 2001).
Wyoming v. Campbell County Sch. Dist. (Campbell 111), 32 P.3d 325 (Wyo. 2003).
WYO. CONST. art. I, §23 and art. VII, § 1.

Zuni Sch. Dist. v. State, CV-98-l4-II (N .M. Dist. Ct, Oct. 14, 1999).

64

CHAPTER 2 — THE NO CHILD LEFT BEHIND ACT:
IS IT AN UNFUNDED MANDATE OR A PROMOTION OF FEDERAL
EDUCATIONAL IDEALS?215

2.1 — Introduction: Federalism and American Educational Policy

Since its inception, the No Child Left Behind Act of 2001 (NCLB)216 has
generated substantial controversy over the expanding role of the federal government in
public K-12 education. The NCLB, a revision of the 1965 Elementary and Secondary
Education Act, calls for states and localities to hire highly qualified teachers, develop and
implement challenging academic standards, set achievement targets for students,
administer assessments to measure student progress, report data on all students, and face
consequences if these requirements are not satisfied. Schools across the country are
diligently working to meet these goals. NCLB, with its pervasive reach, has become a
lightening rod in education policy forums regarding the federal government’s ability to
require local and state education reforms, particularly in light of the small Share of overall
national education funding that originates from federal sources.

The National Education Association, along with several local associations and
school districts, brought this debate to the federal court system in 2005 in their School

217 A few months later, the State of Connecticut

District of Pontiac v. Spellings lawsuit.
entered the fray by filing Connecticut v. Spellings.218 These lawsuits argue that the

federal government, represented by the Secretary of Education, is overstepping its

authority in its regulation of state and local education practices under NCLB by requiring

 

215 This article has been published. See 37 J. L. & EDUC. 193 (2008).

216 The No Child Left Behind Act of 2001 , 20 U.S.C. § 6301 et seq. (2002).

217 No. C1V.A.05-CV-71535-D, 2005 WL 3149545 (E.D. Mich. Nov. 23, 2005).
218 453 F .Supp.2d 459 (D. Conn. 2006).

65

compliance with the law’s provisions even if federal funding is not sufficient to cover all

of these expenses. Plaintiffs characterize NCLB as an unfunded or underfunded mandate.

219

220 affirmed

The Sixth Circuit Court of Appeals’ 2008 decision in the Pontiac case
the plaintiffs’ position that the language of the NCLB, in light of § 7907(a) of the law,
did not clearly alert states to their responsibility to pay for the additional costs of
compliance not covered by federal dollars provided under the act, and that therefore,
NCLB violated the Spending Clause’s clear statement requirement. The court’s majority
found that a state official could plausibly interpret NCLB as not requiring states and
localities to pay for those costs not covered by federal funding. This decision overturned
the federal district court’s 2005 decision that states and local districts were bound by
NCLB’s requirements under current funding because the funding language in § 7907(a)
was only intended to prevent federal officers and employees from imposing additional
unfunded obligations on the states and localities, beyond those provided for in the statute.
It would make no sense for Congress to enact an elaborate statutory scheme and then

allow states to not comply with some of it because they had to spend their own money on

its implementation.

 

219 The use of the word “mandate” is not an accurate description of the whole statute even if plaintiffs’
allegations are correct, though. NCLB was passed under Congress’ conditional spending power. A valid
use of this authority is an inducement, not a mandate, since Congress may only invite states to participate in
the regulatory scheme, and once they do require their compliance with its terms. It may not command a
state to comply with the statute if they do not accept the federal monies offered under it. Plaintiffs use the
term “mandate” to describe the Secretary of Education’s actions in requiring the performance of funding
obligations they do not believe are clearly set forth in the legislation, not to describe the authority under
which the statute was enacted. See Lorraine McDonnell & Richard Elmore. Getting the Job Done:
Alternative Policy Instruments. 9 EDUC. EVALUATION AND POLICY ANALYSIS, 133, 138-39 (1987).

220 On May 14, 2008, the Sixth Circuit agreed to have the entire fourteen member court re-hear this case.
Mark Walsh, Full Appeals Court to Reconsider Ruling that Revived NCLB Suit, 27 EDUC. WEEK 8 (May 7,
2008).

66

This article addresses the arguments in the NCLB unfunded mandate debate as it
has unfolded in the courts. Section 2.2 explores the expansion of the federal
government’s policy-making role in and financial support for education over the past
Sixty years. Section 2.3 examines Congress’ use of its Spending Clause power to enact
legislation that affects education. It discusses several court decisions that define the scope
and limit of CongreSS’ Spending Clause power, a mechanism that permits Congress to
legislate in fields over which it holds no direct authority. It then examines Congress’
Spending Clause power within the context of the NCLB by detailing the two lawsuits that
allege NCLB constitutes an unfunded mandate that exceeds Congress’ conditional
spending power. Ultimately, Section 2.5 concludes that NCLB is a valid exercise of
Congress’ Spending Clause power rather than an unfunded mandate. Therefore, states are
required to fulfill the obligations they assumed under the law at the current funding levels
provided by the federal government.

Several legal commentators have weighed in on this debate and have landed on
both sides of the issue of the NCLB’S constitutionality. While commentators agree that
NCLB can be construed to be in support of the general welfare Of the nation under the
legal test set forth in South Dakota v Dole,22' they disagree about the law’s status under
the other requirements necessary for NCLB to qualify as a valid conditional spending

program.222 Gina Austin, Nicole Lugori, and Professor L. Darnell Weeden have

 

221 483 US. 203 (1987).

222 Compare Gina Austin, Leaving Federalism Behind: How the No Child Left Behind Act Usurps States’
Rights, 27 T. JEFFERSON L. REV. 337, 356 (2005); Nicole Liguori, Leaving No Child Behind (Except in
States that don 't do as we say): Connecticut ’s Challenge to the Federal Government '3 Power to C antral
State Education Policy through the Spending Clause, 47 BC. L. REV. 1033, 1070 (2006); and L. Darnell
Weeden, Does the No Child Left Behind Law (NCLBA) Burden the States as an Unfunded Mandate Under
Federal Law?, 31 T. MARSHALL L. REV. 239, 242 (2006); with Philip T.K. Daniel, No Child Left Behind:
The Balm of Gilead has Arrived in American Education, 206 EDUC. L. REP. 791, 800-01 (2006); and
Michael Heise, The Political Economy of Education Federalism, 56 EMORY LJ. 125 (2006).

67

concluded that NCLB is unconstitutional.223 In her analysis, MS. Austin argues that
NCLB exceeds congressional authority under the Spending Clause under four of the five
prongs of the Dale test,224 and Professor L. Darnell Weeden agrees with her analysis.225
Ms. Lugori believes a court should declare NCLB unconstitutional under the prong that
considers other constitutional conditions, in particular the Equal Protection Clause.
Although She concedes that a court is not likely to do so because of prior

jurisprudence.226

227and Professor

On the other side of the analysis are Professor T.K. Daniels
Michael Heise.228 Professor Daniels focuses on the overall Dole test, concluding that
courts are likely to find that NCLB is a valid use of Congress’ conditional Spending
power because NCLB provides for the general welfare of the nation by promoting
education.229 In concluding that NCLB does not amount to legal coercion, Professor
Heise notes the courts’ reluctance to embrace Dole ’s coercion prong except in extreme
circumstances. Although, he does argue that NCLB is politically rather than legally

coercive.230

 

223 Austin, supra note 222; Liguori, supra note 222; Weeden, supra note 222. See also Amanda K.
Wingfield, The No Child Left Behind Act: Legal Challenges as an Underfunded Mandate, 6 LOY. J. PUB.
INT. L. 185 (2005) (describing the potential legal avenues for and barriers to challenging NCLB).

224 Austin, supra note 222 (alleging that NCLB is not a valid exercise of Congress’ conditional spending
power because it is ambiguous, not closely tied to the federal interest, coercive, and is barred by the Tenth
Amendment).

225 Weeden, supra note 222, at 243-44.

226 Liguori, supra note 222, at 1076-80 (arguing that the Secretary of Education’s administration of
NCLB, which threatens to remove all federal education Title 1 funding from Connecticut leaves the State
vulnerable to a Fourteenth Amendment’s Equal Protection Clause challenge by its public school students
who are likely to receive an inferior education to students in other states because of this lack of funding).
227 Daniel, supra note 222, at 791.

228 Heise, supra note 222, at 125.

229 Daniel, supra note 222, at 800-01 (contending that the federal government may attach conditions to
fimds given to the states to protect the general welfare of the nation, in this case by promoting education).
230 Heise, supra note 222, at 156.

68

While these discussions have added valuable insight to the debate, one cannot
over look the particular arguments advanced by the parties of the two NCLB lawsuits or
the findings of the respective courts. The legal analysis in this article focuses specifically
on these arguments, rather than on a broader spectrum of potential arguments that
plaintiffs could bring. Therefore, this article helps illuminate the legal framework for the
policy debate about NCLB in this country as members of the public, the government, and
the education community continue to negotiate its implementation and reauthorization.
2.2 - The History of Federal Involvement in Education

State and local governments have traditionally been responsible for providing
education in the United States. Education is not mentioned in the US. Constitution, so it
is reserved to the states through the Tenth Amendment.231 The US. Supreme Court has
declared that education is not a fundamental right even though it plays a vital role in our
society.232 Most state constitutions require state governments to provide free public
education, and state governments normally delegate this duty to local school districts.
Thus, the states and their subordinate localities have the responsibility for and control
over education under both tradition and law. For most of our nation’s history, local
control has been the hallmark of educational governance, and the federal government has
played a limited role. However, federal influence has grown substantially during the past
sixty years, and most of this expansion has been accomplished through federal legislation

passed under Congress’ Article 1, § 8 Spending power.

 

231 See US. CONST. amend. X (providing 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).
232 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 US. 1, 35 (1973).

69

2.2.1 - Laws Regulating Education: 1950s to Present

The 19505 mark the time when the federal government became increasingly
involved in K-12 education. The 1954 landmark US. Supreme Court decision in Brown
v. Board of Education” 3 and the 1957 launch of the Soviet Union’s first earth-orbiting
satellite, Sputnik, set the stage for Congress’ enactment of the National Defense
Education Act (N DEA) in 1958.234 The NDEA was the first in a series of acts passed by
Congress using its Spending Clause power to influence the field of education.235

In the 19603, as part of the Great Society reforms, Congress passed several laws
using its spending power in an attempt to eliminate poverty and racial inequality. These
included Title VI of the Civil Rights Act of 1964,236 the Elementary and Secondary
Education Act of 1965 (ESEA),237 and the Bilingual Education Act of 1968.238 It was
during this era that the federal government became the biggest sponsor of educational
reform, and the ESEA was the most significant of the educational legislation passed. 239
Title I of this act, which provided financial assistance to improve the educational

opportunities for poor children, embodied the federal hopes for a better future. This

 

233 347 US. 483 (1954).

234 Law of Sept. 2, 1958, Title I § 101, 1958, 72 Stat. 1581 (repealed 1970). This law was designed to
stimulate education in science, engineering, foreign languages, and mathematics by offering schools
financial assistance and scholarships for students attending post-secondary institutions in these fields of
study.

235 Prior to this date this power had only been used infrequently. One example of its prior use was in the
passage of the Smith-Hughes Vocational Education Act, Pub. L. No. 64-347, 39 Stat. 929 (1917),, an act
that provided federal funds for vocational education, particularly in the field of agriculture.

236 42 U.S.C. § 2000d et seq. (2003). This law links federal funds to non-discrimination and supports
desegregation activities.

237 20 U.S.C. § 6301 et seq. (2002) (original version at ch. 70, 79 Stat. 27 (1965)). This law provides
federal funding for remedial educational and support services for elementary and secondary school students
residing in low-income areas.

238Act of Jan. 2, 1968, ch. 20, 20 U.S.C. § 6811, replaced by the English Language Acquisition, Language
Enhancement, and Academic Achievement Act, 20 U.S.C. § 6811 et seq .(2002).

239 Bruce Dollar, Federal Attempts to Change the Schools, 33 PROCEEDINGS OF THE ACADEMY OF
POLITICAL SCIENCE, 109, No. 2 (1978).

70

legislation continues today in its reauthorized form, the No Child Left Behind Act of
2001.240

This legislative trend continued into the 19705 with the passage of Title IX of the
Education Amendments Act of 1972,241 Section 504 of the Rehabilitation Act of 1973,242

243

the Equal Educational Opportunities Act of 1974, and the Education for all

Handicapped Children Act of 1975.244 During the past thirty years, Congress enacted

4 . .
2 5 Instead focusrng on the

fewer new education-related legislative initiatives,
reauthorization of prior acts. The two most prominent of these successively reauthorized
acts have been the Elementary and Secondary Education Act of 1965246 and the
Education for all Handicapped Children Act of 1975, which was renamed the Individuals
with Disabilities Education Act in 1990.247

Through all of these initiatives, the federal government has assumed the role as a
promoter of educational opportunity to students with enumerated “disadvantages,” such
as those living in poverty, in need of special education, subject to discrimination based on

race or sex, or learning English as a second language.248 To accomplish this goal, it has

provided supplemental financial resources through categorical grants to states and

 

2401d.; 20 U.S.C. § 6301 et seq. (2002).

241 20 U.S.C. § 1681 et seq. (2000 & Supp. 2006). This act bans sex discrimination in all education
programs and activities receiving federal funds.

242 29 U.S.C. § 794 (1999 & Supp. 2006). This law prohibits discrimination against otherwise qualified
individuals with certain physical impairments that limit major life activities.

243 20 U.S.C. § 1701 et seq. (2000). This act provides that no state shall deny equal educational
opportunity because of race, color, sex, or national origin.

244 Pub. L. No. 94-142 (S 6), November 29, 1975. This act amended Pub. L. No. 93-380, the Education of
the Handicapped Act of 1970 (84 Stat. 175), a non-funded amendment to Title IV-B of the Elementary and
Secondary Education Act.

245 Congress did enact a few new laws during this period. The Federal Equal Access Act in 1984, 20
U.S.C. § 4071 et seq. (2003) and the Goals 2000: Educate America Act in 1994, 20 U.S.C. § 5801 et seq.
(2003 & Supp. 2006) are two examples.

246 20 U.S.C. § 6301 et seq. (2002) (original version at ch. 70, 79 Stat. 27 (1965)).

247 20 U.S.C. § 1400 et seq. (2000 & Supp. 2006).

248 20 U.S.C. §§ 6301, 1701, 6811; PL 94-142 (S 6); 42 U.S.C. § 2000d.

71

localities to allow them to better service students’ special needs in the schools.249 In this
manner, the federal government has been able to support its agenda of improving the
educational quality for certain groups of students by offering funding only for specific
programs and limiting its use to narrowly defined activities.

Over time, however, the federal government’s role has changed so that it now has
a greater focus on aligning federal support with the overall national goals for the
education of all students.250 These universal student goals are reflected in the No Child
Left Behind Act. The NCLB is controversial because it expands coverage to all students
without providing sufficient funding to pay for all costs associated with implementing its
requirements .

2.2.2 - The No Child Left Behind Act Controversy: Does it expand the

federal role in education?

The No Child Left Behind Act (N CLB) is designed to change the'culture of
America's schools by closing the achievement gap between disadvantaged children and
other student groups in US. public schools.25 1 Specifically, the introduction to the Act
states as follows:

[t]he purpose of this subchapter is to ensure that all children have a fair, equal,

and Significant opportunity to obtain a high-quality education and reach, at a

minimum, proficiency on challenging State academic achievement standards and
state academic assessments.

 

249 Donald W. Burnes, A Case Stuay of Federal Involvement in Education, 33 PROCEEDINGS OF THE
ACADEMY OF POLITICAL SCIENCE 87, No. 2 (1978).

250 Michael W. Kirst, Recent Research on Intergovernmental Relations in Education Policy, 24
EDUCATIONAL RESEARCHER 18, No. 9 (1995).

251 US. DEP’T OF EDUC. OVERVIEW OF NCLB (2003), http://www.ed.gov/nc1b/accountability/index.html.
252 20 U.S.C. § 6301 (2002).

72

To guide this effort, the law requires states to develop and implement academic

standards,253 employ “highly qualified” teachers,254 test students annually,255

report
student scores,256 define and determine whether “adequate yearly progress” (AYP)
towards academic goals is being made,257 and impose consequences on schools that do
not make AYP, ranging from a requirement to provide extra services to students258 to
total reorganization of the school.259 To receive funds under the act, states must submit a
plan to the US. Department of Education that outlines their commitment to comply with
the key features of NCLB.260

Many in education today argue that this latest version of the Elementary and
Secondary Education Act (ESEA) goes beyond the traditional federal role and infiinges

261

into the field of education too deeply — in a manner that usurps States’ rights. They see

NCLB as reaching beyond the federal government’s customary role of providing money

 

253 20 U.S.C. § 6311(b)(1) (2006).

254 20 U.S.C. § 6319 (2002).

255 20 U.S.C. § 6311(b)(3).

256 20 U.S.C. § 6311(b)(h).

257 20 U.S.C. § 6311(b)(2)

258 Stages 1 & 2 — School Improvement: After two years of not making adequate yearly progress (AYP),
the school is identified for school improvement. The school must undertake professional development for
its teachers, and all students enrolled in these schools are offered the opportunity to transfer to a different
public school that has not been labeled for school improvement. 20 U.S.C. § 6316(b) (2002). If the
identified school does not meet AYP for the third consecutive year, the students who remain in the school
must be offered the option to utilize supplemental services, most commonly manifested as individual
tutoring. 20 U.S.C. § 6316(b)(5). The school must allocate twenty percent of its federal funds to cover the
costs of transporting students who chose to attend different schools and providing supplemental services to
those who remain in the failing school. 20 U.S.C. § 6316(b)(9-10).

259 Stages 3 & 4 — Corrective Action and Restructuring: If the identified school does not meet AYP for the
fourth consecutive year, corrective action must be taken by the district to respond to the consistent
academic failure of the school. This action involves significant changes at the school level including new
curriculum, staff changes, a longer school day or year, the hiring of outside consultants, and the
continuation of the options offered to parents for school choice or supplemental services. 20 U.S.C.. §
6316(b)(7). After one year on a corrective action plan, if the school still does not meet its AYP targets, it
must be restructured. 20 U.S.C. § 6316(b)(8). Restructuring involves implementation of an alternative
governance system that replaces some or all of the school’s staff in addition to a continuation of the
provision of parental choice and supplemental services. 20 US. C. § 6316(b)(8).

260 20 U.S.C. § 631 1(a—b) (2002).

261 See Austin, supra note 222; Lance Fusarelli, Gubernatorial Reactions to No Child Lefi Behind:
Politics, Pressure, and Educational Reform, 80 THE PEABODY J. OF EDUC. 120, No. 2 (2005).

73

for states and localities to use in schools as they see fit within the context of fairly loose
guidelines. Four of the features of NCLB are especially troublesome: (l) the “highly
qualified” teacher requirement; (2) its call for curriculum and teaching practices to be
based on scientific research; (3) its requirement that schools produce certain levels of
educational progress for all students, reported as adequate yearly progress (AYP)
measures on state academic tests; and (4) the consequences for schools whose students do
not meet their academic targets. 267' In this manner, NCLB extends federal authority into
areas of education such as teacher qualifications, curriculum selection, and educational
assessment that have previously been state or local prerogatives. This is seen as a
reordering of intergovernmental relationships that has given the federal government
unprecedented control over education.263

Others argue that NCLB represents an evolution of the federal role in education
rather than a radical departure from past practice because NCLB’S features of standards,
assessments, and accountability are extensions of the framework contained in the most
recent prior versions of the law and the surrounding federal and state policy context.264
To see this progression, the federal government’s relationship through ESEA’s Title 1
with states and local districts has been categorized into three distinct periods.265 First,
during the period of 1965 to 1980, the law established a categorical program that
operated at a distance fiom the regular education programs of local schools, primarily

through classroom pull-outs where economically disadvantaged children received

 

262 Kathryn A. McDermott & Laura S. Jensen, Dubious Sovereignty: Federal Conditions of A id and the
No Child Left Behind Act, 80 THE PEABODY .1. OF EDUC. 39,45 No. 2 (2005).

263 1d. at 48.

264 Lorraine M. McDonnell, No Child Left Behind and the Federal Role in Education: Evolution or
Revolution?, 80 THE PEABODY J. 0F EDUC. 19, 33-34 No .2 (2005). This article does not comment on the
validity or appropriateness of the evolution of the law; it merely documents its development.

265 Id. at 22,

74

additional instruction outside of their regular classrooms.266 Second, during the Reagan
and George H. W. Bush administrations, ESEA’S scope and funding were downsized but
the national rhetoric surrounding it focused on ensuring excellence in education for all
students.267 Third, since 1988, ESEA’S goals have become more tightly linked to the
states’ educational priorities while simultaneously shaping those policies to concentrate
on academic standards, achievement, and assessments for all students.268 Thus, NCLB’S
basic policy framework can be seen as an outgrth of the original ESEA because it
builds on its goal of improving the educational opportunity for certain disadvantaged
students as it has been adapted to the changing political and educational environment
over its forty year history to include a concern for the overall quality of education in the
U.S. and attention to the achievement of additional “disadvantaged” student groups.269

2.2.3 - Educational Funding in the U.S.

To frame the NCLB unfunded mandate debate, it is also important to understand
the magnitude of the financial commitment being made to public education in this
country at the federal, state and local levels. Public spending on K-12 education in the
United States was $536 billion in 2004-05.270 State sources account for about 83 percent
of the revenue spent on K-12 education—generally through a mix of prOperty, sales and
income taxes. Federal sources account for approximately 8.3 percent of the revenue

spent on education, and private funding, mostly for private schools, account for the other

‘

266 Id.

267 Id at 27.

268 Id. at 31.

269 Id. at 36.

270 U.S. DEP’T OF EDUCATION, 10 FACTS ABOUT K-IZ EDUCATION FUNDING (2005),
imp ://www.echov/aMt/overview/fed/10facts/ 10facts.pdf.

75

8.9 percent.271 Overall federal education spending in 2006 was $36 billion.272 In the fiscal
year 2002, the year following NCLB’S enactment, federal education funding increased
$4.7 billion—or 26 percent—over the previous year.273 After three years of growth,
federal appropriations for education programs began to taper off in fiscal year 2004 and
Slowed in fiscal year 2005.274 Federal NCLB funding has held steady in 2005, 2006, and
2007, at $12.7 billion annually.275 Yet, because of the relatively small share of funding
provided by the federal government, the increase in federal funding due to NCLB
amounts to only about 2 percent of total K-12 appropriations.276 It is against this
historical and financial backdrop that the NCLB unfunded mandate debate has evolved.
2.3 — Legal Analysis: Federalism and the Spending Clause

2.3.1 — Federalism: The Division of Power between the Federal & State

Governments

The U.S. system of government is one of dual sovereignty between the federal
and state governments. The presence of an apportionment of power between these two
entities is manifested in the Tenth Amendment of the U.S. Constitution, which declares
that “[t]he 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.” Since

education is not explicitly mentioned in the U.S. Constitution, it is not specifically

 

271 Id. 83% and 8% are the averages across states and that the actual state and federal contributions vary.
See e. g. Goodwin Lui, Interstate Inequality in Educational Opportunity, 81 N.Y.U. L. REV. 2045, 2072
(2006)

272 Id

273 NAT’L CONFERENCE OF STATE LEGISLATURES, TASK FORCE ON NO CHILD LEFT BEHIND FINAL REPORT
(2005), httpzl/www.hartfordinfo.org/issues/documentS/education/nclb.pdf.

274 CENTER ON EDUC. POLICY, FROM THE CAPITAL TO THE CLASSROOM: YEAR 3 OF THE NO CHILD LEFT

BEHIND ACT (2005),
QED://www.cepdc.org/index.cfin?fuseaction=documentshowDocumentByID&DocumentlD=48&C:\CFusi

0nMX7\verity\Data\dummy.txt.

275 U.S. DEP’T OF EDUCATION, ESEA TITLE I GRANTS TO LOCAL EDUC. AGENCIES (2007),
13112 ://www.ed. aov/about/overview/budget/statetables/O8stvarogram.Ddf.

276 NAT’L CONFERENCE OF STATE LEGISLATURES, supra note 273, at 42.

76

delegated to the federal government, and therefore lies with the states. Thus, Congress
does not have a Constitutional grant of authority to regulate directly education in the
United States.

This balance of power between the federal and state governments offers three
primary benefits for the governance of our nation. First, it guards against the blurring of
political accountability.277 Because federalism assigns different powers to each level of
government, citizens are able to determine which entity to hold accountable. Also, if
either the federal or a state government attempts to encroach on the powers of the other, it
can be checked by the other for overstepping its boundaries. Second, federalism protects
individual freedoms.278 Having strong state and local governments provides many
opportunities for citizens to participate in government, to employ diverse solutions to
social, economic, and cultural issues, and to influence national policy by building support
on the local level. Third, federalism fulfills the balanced vision of the political structure
for our country that is embodied in the Tenth Amendment of the U.S. Constitution.279

To maintain this balance, Congress must only act within its delineated powers,
thereby not encroaching on the areas under the control of the states. To determine
whether Congress has invaded the authority reserved to the states by the Tenth
Amendment, an inquiry must be made into whether Congress exceeded the limits of its

authority conferred to it by Article 1, Sec. 8 of the U.S. Constitution.

277 Ryan C. Squire, Eflectuating Principles of Federalism: Reevaluating the Federal Spending Power as
the Great Tenth Amendment Loophole, 25 PEPP. L. REV. 869, 877-881 (1998).

278 Id. at 881-882.

279 Id. at 882-883.

77

2.3.2 - The Federal Conditional Spending Power280
2.3.2.1 — The Grant of Authority: U.S. Constitution, Art. 1, § 8
Congress’ powers to regulate are found in Article 1, § 8 of the Constitution.
Congress may regulate an activity or enterprise directly, and states are required to
comply, if it falls within certain powers, such as those contained in the Commerce
Clause?“ If it does not, Congress may utilize its Spending power under Article I, § 8,
clause 1 of the U.S. Constitution to induce the states to cooperate with its policies.282 This
clause says “Congress shall have Power To lay and collect Taxes, Duties, Imposts and
Excises, to pay the Debts and provide for the common Defense and general Welfare of
the United States; but all Duties, Imposts and Excises shall be uniform throughout the
United States.”283 Unlike direct regulatory power where the federal government can
mandate state and local action, through its Spending Clause power Congress can offer
states money in exchange for their agreement to abide by certain laws and their
regulations. In this manner, Congress may legislate in fields, such as education, over
which it holds no direct authority.
2.3.2.2 — Limits on the Grant of Authority
The boundaries on Congress’ ability to spend have been enumerated by the

United States Supreme Court, and these boundaries form the criteria that must be met in

 

280 This article examines the constitutionality of the No Child Left Behind Act. An analysis could also be
performed under the Unfunded Mandate Reform Act of 1995 (UFMRA). A 2004 GAO report conducted
such an analysis and determined that NCLB did not violate this act because, under the definitions of the
UMRA, state participation was a voluntary, and so it was not a “mandate.” U.S. GEN. ACCOUNTING
OFFICE, GAO-04-63 7, UNFUNDED MANDATES: ANALYSIS OF REFORM ACT COVERAGE 4 (2004),
http://www.gao.gov/new.items/d04637.pdf.

28 l U.S. CONST. art. I, § 8, c1.3.

282 See e. g. the Elementary and Secondary Education Act of 1965, Pub. L. No. 89-10, 79 Stat. 27 (current
version at 20 U.S.C. § 6301 (2002)); the Individuals with Disabilities Education Act, Pub. L. No. 91-230,
84 Stat. 175 (current version at 20 U.S.C. § 1400 (2000 & Supp. 2006)).

283 U.S. CONST. art. I, § 8, cl. 1.

78

order for the federal legislature to utilize its conditional power under the Spending Clause
in a manner consistent with the federal structure of government established in the U.S.
Constitution.

Five criteria for determining the constitutionality of Congress’ use of its spending
power were specified by the U.S. Supreme Court in South Dakota v. Dole.284 First, the
federal legislation must be in pursuit of the general welfare.285 Second, any conditions on
the receipt of federal funds must be unambiguous, so that states may know the
consequences of their participation.286 Third, the conditions must be related to the federal
interest in national projects or programs.287 Fourth, the conditions must not be prohibited
by other constitutional provisions.288 And fifth, the conditions or circumstances of the
financial inducement offered by the federal government cannot be coercive so as to

violate the Tenth Amendment.289

 

284 483 U.S. 203 (1987) (finding the withholding of highway funds fiom states with legal drinking ages
under 21 to be consistent with the national goal of safe interstate travel).

285 South Dakota v. Dole, 483 U.S. at 207. The discretion to determine what promotes the general welfare
of the nation lies with Congress unless its choice is clearly wrong, a display of arbitrary power, instead of
an exercise of judgment. Helvering v. Davis, 301 U.S. 619, 640 (1937). Numerous federal conditional
spending programs have been found to be in pursuit of the general welfare. See e. g. Helvering V. Davis, 301
U.S. 619 (1937) (upholding the creation of the Social Security system as a valid exercise of Congress’
judgment about the need for financial support for older Americans in light of the changing economy and
population composition of the nation).

286 South Dakota v. Dole, 483 U.S. at 207. This criterion requires the federal government to clearly and
unambiguously state the conditions a state will be bound by if it accepts federal aid, so a state may
knowingly accept its terms. .

287 Id. at 207-208. This criterion recognizes that the federal government may impose reasonable conditions
on the use of federal funds, federal property, and federal privileges, but it requires that the conditions under
which federal monies or other benefits are given to participating states be reasonably related to the federal
interest in the particular national program or project. Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275,
295 (1958). See e. g. Massachusetts v. United States, 435 U.S. 444, 461-62 (1978) (finding a valid federal
interest in requiring states pay an annual registration fee for their aircraft as part of a national effort to
recoup the costs of federal aviation programs).

288 South Dakota v. Dole, 483 U.S. at 207-208. Congress’ conditional spending “power may not be used to
induce the States to engage in activities that would themselves be unconstitutional.” Id. at 210.

289 Id at 21 I. The courts have not yet defined the point at which a condition passes from encouragement
to coercion.

79

Although all of these criteria are relevant to the question of Congress’ permissible
use of its spending power, the limitations that are most pertinent to an analysis of the
constitutional status of The No Child Left Behind Act are numbers two and five --
whether the conditions are stated unambiguously and not coercively.290 Therefore, this
article will focus on these two criteria.

2.3.2.3 — Limit on Grant Authority - Clarity of Conditions
3.3.2.3.] — Overview of the Law

The NCLB unfunded mandate debate currently unfolding in the courts centers on
the second requirement that federal program conditions cannot be ambiguous to be
binding on the states. When Congress enacts legislation under its Spending power and
invites states to participate in the resulting program, it has the power to set the terms
under which federal funds will be distributed to the states.“ The relationship that is

established between the federal government and the states is in the nature of a contract

 

290 The other limitations are easily satisfied by the Act.

A court is likely to defer to Congress’ judgment that NCLB’s purpose of improving education
promotes the general welfare. 20 U.S.C. § 6301 (2002); South Dakota v. Dole, 483 U.S. at 207 (“In
considering whether a particular expenditure is intended to serve general public purposes, courts should
defer substantially to the judgment of Congress”)

NCLB’S conditions dealing with the provision of education, such as requiring highly qualified
teachers and annual assessments, are reasonably related to the federal interest in promoting education
because they are intended to improve the quality of education provided. 20 U.S.C. § 6301 (2002). But see
Austin, supra note 222 (arguing that NCLB is not closely tied to the federal interest because its conditions
are over- and under- inclusive).

Moreover, there is no potential inducement for states to engage in conduct prohibited by the U.S.
Constitution because NCLB only asks states to engage in legal activities, such as testing Students and
reporting student scores, that do not potentially infi'inge on rights guaranteed by the Constitution. The
potential removal of federal Title 1 funding would not create an Equal Protection violation because
education is not a fundamental right. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973).
And NCLB does not impose substantial financial burdens on state citizens or require a specified form of
political or institutional structure, since states set and implement their own educational standards. 20 U.S.C.
§ 6301 (2002). But see Liguori, supra note 222, at IO76-80.(arguing that the Secretary of Education’s
administration of NCLB, which threatens to remove all federal education Title 1 funding fi'om Connecticut
leaves the State vulnerable to a Fourteenth Amendment’s Equal Protection Clause challenge by its public
school students who are likely to receive an inferior education to students in other states because of this
lack of funding); See Austin, supra note 222 (alleging that the Tenth Amendment is an independent
constitutional bar to NCLB).

291 Pennhurst State Sch. and Hosp. v. Halderrnan, 451 U.S. l, 17 (1981).

80

where the states agree to comply with the requirements of the legislation in exchange for
federal monies.292 Thus, the legitimacy of Congress’ use of its conditional spending
power is dependent upon states voluntarily and knowingly accepting the terms of the
“contract.”293

To determine the responsibilities states and local school districts must fulfill
under conditional spending statutes, the courts routinely examine the text of the statute,294
its purpose,295 its legislative history,296 and/or the cases interpreting it.297 These sources
are considered from the perspective of the state official who is making the determination
of whether to accept the federal funds offered in exchange for the statutory obligations.298
In order for the obligations to be binding on the states, Congress must speak “with a clear
voice” in identifying them, so that states are cognizant of the consequences of their
participation.299 If the requirements are clear, then a state is bound by the statute’s terms
under the “contract theory” because the state knowingly assumed the responsibilities
under the law.300 States cannot be bound by conditions that they are unable to

ascertain.30l

 

292 1d; Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 640 (1999).

293 Pennhurst State Sch. and Hosp., 451 U.S. at 17.

294 Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 547 U.S. 1038 (2006); Jackson v. Birmingham
County Bd. of Educ., 544 U.S. I67, 173 (2005); Bennett v. Ky. Dep’t of Educ., 470 U.S. 656, 666 (1985);
Bell v. New Jersey, 461 U.S. 773, 783 (1983); Pennhurst State Sch. and Hosp., 451 U.S. at 18; Com. of.
Va., Dept. of Educ. v. Riley, 106 F.3d 559, 568 (4th Cir. 1997).

295 Arlington Cent. Sch. Dist. Bd. of Educ., 547 U.S. 1038; Jackson, 544 U.S. at 180; Pennhurst State Sch.
and Hosp., 451 U.S. at 18; Com. of Va., Dept. of Educ., 106 F.3d at 568; County Sch. Bd. of Henrico
County, Va. v. RT, 433 F.Supp.2d 692, 708 (ED. Va. 2006).

296 Arlington Cent. Sch. Dist. Bd. of Educ., 547 U.S.1038; Bell, 461 U.S. at 783; Pennhurst State Sch. and
Hosp., 451 U.S. at 18; Com. of. Va., Dept. of Educ., 106 F.3d at 568.

297 Arlington Cent. Sch. Dist. Bd. of Educ., 547 U.S. 1038; Jackson, 544 U.S. at 182; County Sch. Bd. of
Henrico County, Va, 433 F.Supp.2d at 712.

298 Arlington Cent. Sch. Dist. Bd. of Educ., 548 U.S. at 2459.

299 Id.

300 Bell, 461 U.S. at 790-791.

301 Davis, 526 U.S. at 640.

81

If a court finds that a state was able to determine the conditions and agreed to
them by accepting federal monies in exchange for their performance, then several
potential remedies are available to the federal government. When the conditions have
been found to be clear and therefore agreed to by the parties, courts have required states
and local school boards to fulfill them,302 permitted the federal government to enforce
financial withholding provisions against states,303 and even barred a local board from
challenging the validity of the law under the Spending Clause.304 In contrast, if the
federal conditions are unclear, then states and school boards are not bound by those
terms.305 In this situation, the federal government may not properly impose conditions
because to do so would violate the Spending Clause.306 Moreover, the federal government
may not withhold funds promised under a statute in an attempt to enforce conditions that

are not clearly assumed by the state.”

 

302 See e. g. Jackson, 544 U.S. at 173-82 (2005) (allowing a private action for retaliation against the school
board because Title IX provided sufficient notice that the board would be liable for retaliation against an
individual who reports sexual harassment since the law’s terms broadly prohibit any discrimination based
on sex, even though the text of the statute did not specifically mention “retaliation”); County Sch. Bd. of
Henrico County, Va., 433 F.Supp.2d at 713-14 (requiring a school district to pay for the costs of a private
school placement for a student with a disability while the district appealed a hearing officer’s decision that
the placement was appropriate because the district was aware of its responsibility to pay for this type of
service both through its application for federal funding under the Individuals with Disabilities Education
Act (IDEA) and several court decisions interpreting the law).

303 See e. g. Bell, 461 U.S. at 782-87 (finding that the ESEA gives the Secretary of Education explicit
authority to recover funds misspent by a recipient); Bennett, 470 U.S. at 662-66 (allowing the U.S.
Department of Education to demand repayment from Kentucky for funds misused under Title 1).

304 County Sch. Bd. of Henrico County, Va., 433 F.Supp.2d at 705-706 (finding that states and local
school boards may actually be estopped from challenging the validity of the law when they have consented
to its terms in cases where the state or local board receives an advantage over the federal government due to
the inconsistency from its original agreement).

305 Com. of. Va., Dept. of Educ., 106 F .3d at 567.

306 Davis, 526 U.S. at 640 (states cannot be bound where Congress does not speak with a “clear voice”
because there can be no knowingly acceptance of terms if states are unable to ascertain them). See e. g.
Arlington Cent. Sch. Dist. Bd. of Educ., 547 U.S. at 2459-61 (finding that a school district lacked sufficient
notice and was therefore not required to reimburse parents of children with disabilities for the cost of
experts hired for IDEA proceedings where the statute’s plain language Stated only that they must be
reimbursed for attorney fees as part of the “costs” associated with the hearings, and expert fees were not
traditionally associated with these costs).

307 See e. g. Com. of. Va., Dept. of Educ., 106 F.3d at 567 (holding that the federal Department of
Education was without authority to withhold IDEA funds from the Commonwealth of Virginia for not

82

3.3.2.3.2 — The NCLB Unfunded Mandate Lawsuits

The plaintiffs308

in both lawsuits contend that in fact NCLB’s provisions are not
ambiguous. Instead, the law’s unfunded mandate section specifies that the states are not
required to expend their own funds to meet NCLB’S goals.309 Despite this promise and
the fact that federal Title 1 education funding does not cover all of the states’ and local

3 '0 the United States Secretary of Education has

districts’ costs in implementing NCLB,
mandated that the states fulfill all of the law’s requirements.3 ” Therefore the federal
government is violating its agreement with the states under the terms of the law itself, 3 '2

exceeding the scope of its powers under the Spending Clause by changing one of the

conditions under which the states agreed to participate,313 and also infiinging on the

 

providing Special educational services to students with disabilities who were suspended or expelled from
school for reasons unrelated to their disability because the language of the statute did not explicitly mention
or even imply such a duty on the part of the state).

308 Plaintiffs in the Pontiac School District suit include nine school districts (Pontiac School District in
Michigan, Laredo Independent School District in Texas, Vermont school districts Rutland Northeast
Supervisory Union, Leicester Town School District, Neshobe Elementary School District, Otter Valley
Union High School District, Pittsford Town School District, Sudbury Town School District and Whiting
Town School District) and the following ten education associations: the National Education Association
(NEA), eight NEA state affiliates (the Connecticut Education Association, Illinois Education Association,
Indiana State Teachers Association, Michigan Education Association, NEA-New Hampshire, Ohio
Education Association and Verrnont-NEA) and one NEA local affiliate (the Reading Education
Association). Proof Opening Brief of Plaintiffs-Appellants Pontiac School District et. al., No. 05-2708 (6th
Cir. March 22, 2006) FN 4. The Plaintiffs in the Connecticut. v. Spellings lawsuit include the State of
Connecticut and its General Assembly. Complaint for Declaratory and Injunctive Relief at 1-3, Connecticut
v. Spellings, No. 3:05-cv-l330 (MRK) (D. Conn. Aug. 22, 2005).

309 Second Amended Complaint at 17, Connecticut. v. Spellings, No. 3:05-cv-1330 (MRK) (D. Conn. June
6, 2006).

310 Complaint for Declaratory and Injunctive Relief, Sch. Dist. of Pontiac v. Spellings at 14, No. 05-CV-
715 35-DT (E.D. Mich. April 20, 2005); Second Amended Complaint, Connecticut, supra note 309, at 18.
Connecticut also argues that the Secretary of Education’s arbitrary and capricious failure to waive its
mandates through plan waivers and/or amendments exacerbates the problem. Second Amended Complaint,
Connecticut, supra note 309, at 41.

311 Complaint, Sch. Dist. of Pontiac, supra note 310, at 12; Second Amended Complaint, supra note 309,
at 17.

312 Complaint, Sch. Dist. of Pontiac, supra note 310, at 57-58; Second Amended Complaint, Connecticut,
supra note 309, at 40-41.

313 Complaint, Sch. Dist. of Pontiac, supra note 310, at 56-57; Second Amended Complaint, Connecticut,
supra note 309, at 42-43.

83

state’s sovereignty under the Tenth Amendment.314 AS a remedy, these plaintiffs are
asking the courts to enforce their agreement with the federal government and declare
first, that they do not have to spend their own money to implement the law, and second,
that the Secretary of Education cannot penalize them for not meeting their NCLB
achievement goals if they fail because they did not Spend their own funds attempting to
meet them.“5

In response, the Secretary of Education also contends that the provisions of
NCLB are not ambiguous, saying that it is a legitimate exercise of Congress’ conditional
spending clause authority. NCLB is valid and enforceable against the states because it
creates a federal-state partnership wherein federal funds are provided to support the
states’ efforts in ensuring that their students make adequate academic progress using
educational standards, assessments, and accountability systems developed and
implemented by the states. 3’6 Educating kids to be proficient in reading and mathematics
has traditionally been and continues to be primarily a state and local responsibility.3 '7 The
generous funding the federal government provides to the states under NCLB is only
intended to supplement the state educational effort. NCLB does not require the federal
government to pay for any and all costs a state chooses to designate as being related to

NCLB. Instead, NCLB grants local school districts unprecedented new flexibility while

 

314 U.S. CONST. amend X. This allegation is included only in the Connecticut. v. Spellings lawsuit. Second
Amended Complaint, Connecticut, supra note 309, at 42-43.

315 Complaint, Sch. Dist. of Pontiac, supra note 310, at 3-4; Second Amended Complaint, Connecticut,
supra note 309, at 46-48. Much of Connecticut’s argument in its lawsuit also focuses on the U.S.
Department of Education’s failure to grant it waivers under the law, so in crafting its request for relief,
Connecticut asks that either the federal government be required to pass the extra costs associated with
compliance or grant the waivers it seeks that it claims force Connecticut to spend money in addition to that
given to it by the federal government. The State’s Opposition to the Secretary’s Motion to Dismiss,
Connecticut. v. Spellings, No. 3:05-cv-1330 (MRK) (D. Conn. Dec. 23, 2005) at 45.

316 Final Brief for the Appellee at 1 1, Sch. Dist. of Pontiac . v. Spellings, No. 05-2708 (6th Cir. July 13,
2006).

317 Memorandum of Law in Support of Defendant’s Motion to Dismiss, Connecticut. v. Spellings at 37,
3:05-cv-0133O (MRK) (D. Conn. Dec. 2, 2005).

84

at the same time demanding results in public education through strict accountability
measures.318 The states voluntarily assumed their responsibilities under NCLB.3 '9 Now
they must fulfill them, even if it means spending their own funds.320
The dispute between the parties focuses primarily on the language of NCLB’S
unfunded mandate provision. It reads, in pertinent part as follows:
[n]othing in this Act shall be construed to authorize an officer or employee of the
Federal Government to mandate, direct, or control a State, local educational
agency, or school’s curriculum, program of instruction, or allocation of State or

local resources, or mandate a State or any subdivision thereof to Spend any funds
or incur any costs not paid for under this chapter.321

The plaintiffs in both of the NCLB unfunded mandates lawsuits have argued that
this language clearly says the federal government cannot require the states to “incur any
costs” or spend any “funds” not paid for by the federal government pursuant to the act or
to “mandate, allocate or control” state and local funding.322 The plaintiffs argue that on its
face, §7907(a) applies to all actions a state or locality might have to undertake to comply
with NCLB. Therefore, the federal government must pay the entire additional costs
imposed on states by NCLB. Because overall federal NCLB funding is insufficient to

meet all of its requirements,323 states are forced to pay part of the costs of compliance out

 

318 Final Brief for Appellee, Sch. Dist. Of Pontiac, supra note 316, at 5-6.

319 Reply in Support of Defendant’s Motion to Dismiss at 10, Connecticut. v. Spellings, No. 3:05-cv-
01330 (MRK), (D. Conn., Jan. 13, 2006).

320 Memorandum of Law in Support of Defendant’s Motion to Dismiss, Connecticut, supra note 317, at
37-38.

321 20 U.S.C.A. § 7907(a) (2002).

322 Complaint, Sch. Dist. of Pontiac, supra note 310, at 56-58. The “mandate, allocate or control” portion
of the argument is only present in the Connecticut lawsuit. Second Amended Complaint, Connecticut,
supra note 309, at 41.

323 The Plaintiffs in the Sch. Dist. of Pontiac v. Spellings lawsuit claim that not only is NCLB funded at a
level less than that called for by the legislation, the costs for complying with all of its mandates, such as
revised curriculum standards, developing and administering standardized tests, reporting the assessment
results, and ensuring that staff are qualified, are enormous. Complaint, Sch. Dist. of Pontiac, supra note
310, at 14-52. Connecticut alleges that federal funding is insufficient in two respects. First, the total amount
of funding received under NCLB does not cover all of the State’s NCLB-related expenses. Second, the $5.8
million provided for assessments under NCLB will not pay for the State’s annual assessment costs of $14.4

85

of their own money. AS a consequence, the federal government is violating the plain
language of the statute,324 the Spending Clause,325 and the Tenth Amendment.326

In addition to the plain language of the unfunded mandates provision, the
section’s legislative history and the overall structure of the NCLB act reveal that
Congress was strongly committed to avoiding the imposition of unfunded federal
mandates on states. Although legislators did not specifically comment on the inclusion of
§ 7907(a) in NCLB, this provision was present in three prior acts: Goals 2000: Educate
America Act,327 the School-to-Work Opportunities Act,328 and the prior version of ESEA
the Improving America’s Schools Act}29 The legislative commentary about the unfunded
mandate section in these acts makes it clear that legislators did not intend to require states
to do things that were not paid for under these laws. Similarly, the overall structure of the
law supports this reading. The purpose of NCLB was to increase resources for education,
not decrease them. Thus, § 7907(a) covers additional expenditures imposed by the law,
and provisions such as § 6321(b)(l) that require states and localities to maintain their
financial effort for education330 and § 631 1(b)(3)(D) that require a minimum threshold for

federal funding for states to be responsible to implement the assessment portion of

 

million plus its modified special education assessments. State’s Memorandum Regarding its First Amended
Complaint, Connecticut. v. Spellings, No. 3:050vl330 (D. Conn., Feb. 28, 2006) at 8.

324 Complaint, Sch. Dist. of Pontiac, supra note 310, at 57-58; Second Amended Complaint, Connecticut
v. Spellings, supra note 309, at 40-41.

325 Complaint, Sch. Dist. of Pontiac, V. Spellings, supra note 310, at 56-57; Second Amended Complaint,
Connecticut v. Spelling, supra note 309, at 42-43.

326 Second Amended Complaint, Connecticut v. Spellings, supra note 309, at 42-43.

327 20 U.S.C. § 5801 et seq. (1996 & Supp. 2006).

328 20 U.S.C. § 6111 et seq. (2003).

329 Law of Oct. 20, 1994, Title I, § 101, 108 Stat. 3906 (repealed 2002).

330 “A State educational agency or local educational agency shall use Federal funds received under this
part [20 USCS §§ 6311 et seq.] only to supplement the funds that would, in the absence of such Federal
funds, be made available fi'om non-Federal sources for the education of pupils participating in programs
assisted under this part [20 USCS §§ 6311 et seq.], and not to supplant such funds.” 20 U.S.C. §6321(b)(1)
(2003).

86

NCLB"31 do not alter the unfunded mandate aspect of the law. Connecticut’s decision to
accept NCLB funds was informed by a view of the statute as a whole. While annual
testing in all grades was a general expectation, under no circumstances would a state be
required to spend any additional state resources to comply with the law and states would
have the right to seek waivers from any of NCLB’s requirements.

The U.S. Secretary of Education, on the other hand, has alleged that § 7907(a)
does not alter the conditions of aid included in the statute itself since the federal
government has offered federal financial assistance in exchange for a state’s compliance
with NCLB’s provisions, and the various states have affirmatively agreed to abide by
them. The conditions of assistance the states agreed to when accepting federal funds--like
annual assessments at specific grade levels--were clear from the language of the act.
Section §7907(a) does not introduce ambiguity into the statute. Instead, this section
prohibits federal officers or employees from imposing extra unfunded requirements in the
form of actions or expenditures (such as curriculum or staffing directives or per pupil
spending, teacher salaries, or the purchase of new equipment) on states or localities that
are in addition to the statutory conditions in the law for the receipt of federal NCLB
funds.332 In this manner, §7907(a) clarifies the scope of the U.S. Department of

Education’s power to administer and enforce NCLB.

 

331 “A State may defer the commencement, or suspend the administration, but not cease the development,
of the assessments described in this paragraph, that were not required prior to the date of enactment of the
No Child Left Behind Act of 2001 [enacted Jan. 8, 2002], for 1 year for each year for which the amount
appropriated for grants under section 6113(a)(2) [20 USCS § 7301b(a)(2)] is less than--

(i) S 370,000,000 for fiscal year 2002;

(ii) $ 380,000,000 for fiscal year 2003;

(iii) 8 390,000,000 for fiscal year 2004; and

(iv) $ 400,000,000 for fiscal years 2005 through 2007.” 20 U.S.C. §63l 1(b)(3)(D).
332 Final Brief for the Appellee, Pontiac Sch. Dist., supra note 316, at 10, 20.

87

In addition to its plain language, the Secretary of Education argues that § 7907(a)
must be read in harmony with the rest of NCLB. At its core, NCLB is a law that assists
states in their effort to educate students. Any programmatic or financial obligations the
states assume pursuant to this law are voluntarily entered into, not mandated by the
federal government.333 Two provisions highlight this fact. First, the maintenance of effort
provision clarifies that states continue to be primarily responsible for education
funding.334 Second, §6311(b)(3)(D) defines the only instance in which a state can be
excused from performance under the act. This section temporarily excuses a state’s
administration of assessments if federal funding falls below the levels set in the act, a
situation that has not occurred.335 Furthermore, plaintiffs’ interpretation of § 7907(a)
undermines Congressional intent because it pits two of NCLB’s main features against
each other—accountability versus state and local autonomy and flexibility—in a manner
that allows one to defeat the other.336 As defined by the plaintiffs, a state’s autonomy and
flexibility under NCLB to develop its own standards, assessments and accountability
system could effectively remove the state from any responsibility to actually achieve the
goals of the law in any circumstance where a state claims the system it developed itself
for meeting NCLB’s requirements costs more than the federal government is providing
funding. This result is contrary to the purposes of the act that promote the ability of all

children to achieve “proficiency on challenging state academic achievement standards

 

333 Memorandum of Law in Support of Defendant’s Motion to Dismiss, Connecticut. supra note 317, at
31.

334 20 U.S.C. § 6321(b)(1). See Memorandum of Law in Support of Defendant’s Motion to Dismiss,
Connecticut, supra note 317, at 37-38.

335 20 U.S.C. §6311(b)(3)(D). See Memorandum of Law in Support of Defendant’s Motion to Dismiss,
Connecticut, supra note 317, at 35; Final Brief for the Appellee, Pontiac Sch. Dist, supra note 316, at 15-
16.

336 See Memorandum of Law in Support of Defendant’s Motion to Dismiss, Connecticut, supra note 317,
at 38-41.

88

and state academic assessments.”337 Therefore, § 7907(a) must be read as it was intended,
to limit the ability of an officer or employee of the federal government to impose
additional unfunded requirements on states while maintaining a state’s responsibility to
abide by the obligations it voluntarily assumed under NCLB in exchange for federal

funds.

2.3.2.3.3 — The Decision in School District of the City of Pontiac
v. Secretary of the United States Department of Education338
The 6th Circuit Court of Appeals, in its January 2008 decision, held that NCLB

failed to provide clear notice regarding who bears the additional cost of compliance not
paid for by the federal funding provided under the act and therefore violates the Spending
Clause of the U.S. Constitution.339 The court found that a state official could “plausibly
contend,” based on § 7907(a), she understood that “her State need not comply with
NCLB requirements for which federal funding falls short.”340 This decision overturned
the lower court’s interpretation of the law, which read § 7907(a) as only prohibiting
officers and employees of the federal government from imposing additional, unfirnded
obligations on the states that were not in the original statute?" not as prohibiting
“Congress itself from offering federal funds on the condition that States and school

districts comply with the many statutory requirements” of the act.342

 

337 “The purpose of this title [20 USCS §§ 6301 et seq.] is to ensure that all children have a fair, equal, and
significant opportunity to obtain a high-quality education and reach, at a minimum, proficiency on
challenging State academic achievement standards and state academic assessments.” 20 U.S.C. § 6301
(2003).

338 Sch. Dist. of Pontiac v. Sec’y of the U.S. Dep’t of Educ., 2008 WL 60187 (6th Cir. Jan. 7, 2008).

339 1d. at *15.

340 Id. at *1 1.

341 Sch. Dist. of Pontiac v. Spellings, Civ.A. 05-CV-71535-D, 2005 WL 3149545, *4 (ED. Mich. Nov.
23, 2005).

342 1d. at *5.

89

In reaching this conclusion, the Court of Appeals stated that although NCLB
plainly lays out the obligations of states and school districts that participate in the act to
fulfill its educational and accountability requirements, such as the submission of state
plans, and tracking student achievement, it is not obvious from the language of the statute
or its legislative history that states must pay for the cost of implementing these measures

343 Without clarity on this assumption of

if federal monies do not cover their full cost.
liability, states cannot have knowingly assumed these obligations.

The Court of Appeals rejected the Secretary of Education’s interpretation of
NCLB wherein states are required to fully fund in compliance with NCLB regardless of
federal funding based on two possible readings of § 7907(a): (1) stopping rogue federal
officials or employees from imposing additional requirements on participating states; and
(2) ensming that states would not be subject to mandates under NCLB that did not form a
part of this voluntary program, saying that these interpretations are not evident enough

344 syntax,345 and legislative history346 of the provision to bind the states.

from the text,

In reaching this conclusion, though, the court made the following
acknowledgement: “[t]hat is not to say, however, that the Secretary’s interpretation of the
Act is frivolous. Indeed, perhaps the Secretary’s view of the text is ultimately

correct.”347 Nevertheless the court said the only real question was whether the act

provides clear notice to states of their obligation, and NCLB does not.348

 

343 Sch. Dist. of Pontiac v. Sec’y of the U.S. Dep’t of Educ., 2008 WL 60187 at * 14-16.
344 Id. at12;13.

345 Id at 12.

346 Id. at 13-14.

347 Id. at 11.

348 Id

90

2.3.2.3.4 — The Decision in Connecticut v. Spellings349

The court in Connecticut v. Spellings declined to reach the merits of the case on
the unfunded mandate issue, finding instead that it lacked subject-matter jurisdiction to
entertain this pre-enforcement declaratory judgment action brought by the State of
Connecticut to determine if the U.S. Secretary of Education’s interpretation of NCLB’s
unfunded mandate provision was proper.350 The Court reached this decision because
Connecticut remained in compliance with NCLB’s provisions. Therefore, the U.S.
Secretary of Education had not declared Connecticut in violation of any provision of
NCLB and had not undertaken any enforcement actions against the state.351 Review of a
final agency action in this situation is governed by the General Education Provisions Act
(GEPA).352 This act provides for a hearing of disputes by an administrative law judge
with discretionary review of this decision by the Secretary of Education. The Secretary’s
decision is considered a final agency action. A court may review the Secretary’s decision.
Therefore, GEPA effectively precludes a pre-enforcement court action by an aggrieved
party because allowing it would undermine the “comprehensive system for enforcement”
created by Congress, and the courts must defer to its preference that disputes be heard at
the administrative level before they are brought before the courts.353

2.3.2.3.5 — Analysis

 

349 453 F.Supp.2d 459 (D. Conn. 2006).

350 Id. at 489 and 494. This case was dismissed in April 2008. Connecticut v. Spellings, 549 F.Supp.2d
161 (D. Conn. 2007). The court found that the U.S. Secretary of Education’s decision to deny
Connecticut’s plan amendments regarding the testing of students with disabilities and English language
learners was not arbitrary or capricious because it was consistent with NCLB requirements that all students
be tested every year using the same academic standards. Id. at 174-76. In addition, the court declined to
decide the Unfunded Mandate Provision claim because Connecticut had not properly raised it in its
correspondence regarding the contested state plan amendments. Id. at 181.

35] Id. at 482.

352 20 U.S.C. § 1221 et seq. (2003 & Supp. 2006).

353 Connecticut v. Spellings, 453 F.Supp.2d at 484.

91

The question raised by these cases is ultimately whether states had clear notice
that they would be required to comply with all of the provisions of NCLB as conditions
of assistance under Congress’ conditional spending power even if federal funding was
insufficient to cover all of the costs associated with its implementation. The analysis
focuses on the text of the statute, most particularly the unfunded mandate provision, 354
whose words must be read in light of the overall statutory scheme to “fit, if possible, all
_ parts into a harmonious whole.”355

The original reading of the unfunded mandate provision by the district court in the
Pontiac case,356 which would require states to comply with the basic conditions of
assistance contained in the law but not new requirements imposed by officers or
employees of the federal government, best comports the text of § 7097(a), the unfunded
mandate provision, with the overall structure and purpose of the NCLB. The text of the
key provision in dispute, § 7097(a) of the act,357 does not provide conclusive guidance on
the ultimate question raised by these cases.

Nothing in this Act [20 USCS §§ 6301 et seq.] shall be construed to authorize an
officer or employee of the Federal Government to mandate, direct, or control a State,
local educational agency, or school's curriculum, program of instruction, or allocation of

State or local resources, or mandate a State or any subdivision thereof to spend any funds

or incur any costs not paid for under this Act.

 

354 “Nothing in this Act [20 USCS §§ 6301 et seq.] shall be construed to authorize an officer or employee
of the Federal Government to mandate, direct, or control a State, local educational agency, or school's
curriculum, program of instruction, or allocation of State or local resources, or mandate a State or any
subdivision thereof to spend any funds or incur any costs not paid for under this Act.” 20 U.S.C. § 7907(a)
(2003).

355 Food and Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132-33 (2000).

356 Sch. Dist. of Pontiac v. Spellings, Civ.A. 05-CV-71535-D, 2005 WL 3149545 (E.D. Mich. Nov. 23,
2005), reversed, Sch. Dist. of Pontiac v. Sec’y of the U.S. Dep’t of Educ., 2008 WL 60187 (6th Cir. Jan. 7,
2008). -

357 20 U.S.C. § 7907(a) (2003).

92

What is clear from this provision is that it has two parts that somehow limit the
federal government’s ability to: (l) affect curriculum, instruction and allocation of state
resources and (2) require states, or their subdivisions, to spend money not provided by the
law."58 What is not clear is whether the latter prohibition contained in this provision,
against states being required to “spend any funds” or “incur any costs” not paid under the
act, applies to the basic conditions of assistance contained in the statute itself, as alleged
by Plaintiffs, 359 or only to additional directives by federal government officers or
employees made after the law was passed, as argued by the Secretary of Education. 360
The line between these alternative understandings of this provision is drawn around the
“officer or employee of the Federal Government” language in § 7907(a) by asking
whether it modifies the clause regarding the spending of state and local government
funds. Both interpretations offered by the parties are feasible under the rules of
punctuation and grammar.3 6‘ And because of this, the Sixth Circuit Court of Appeals said

that a state official could plausibly contend that her state would not have to implement

portions of NCLB where no federal fimds were provided.362 But the traditional tools of

 

358 Id.

359 Plaintiffs propose that the clause be read as follows: “Nothing in this Act [20 USCS §§ 6301 et seq.]
shall be construed ...mandate a State or any subdivision thereof to spend any funds or incur any costs not
paid for under this Act.” 20 U.S.C. § 7907(a).

360 The Secretary of Education says that the provision is properly read as follows: “Nothing in this Act [20
USCS §§ 6301 et seq.] shall be construed to authorize an officer or employee of the Federal Government to
mandate a State or any subdivision thereof to spend any funds or incur any costs not paid for under this
Act.” 20 U.S.C. § 7907(a).

361 Plaintiffs justify their position that the clause “officer or employee of the Federal Government” does
not modify the subject act by focusing on the final series comma after “local resources,” saying that it
marks the separation between the first and second clauses or parts of this provision. The Secretary of
Education, on the other hand, focuses on the infinitive “to mandate” to say that “officer or employee of the
Federal Government” must be read as part of the last dependent clause to give the provision a parallel
structure.

362 The majority opinion rejects the Secretary of Education’s interpretation of the text on three grounds:
(1) the reading is not “so evident” that a state would clearly understand Congress to have meant it; (2) it is
reasonable to read the “officer or employee” language to modify only the middle clause regarding state and
local control over curriculum, not the funding portion of the provision; and (3) if the “officer or employee”
language is read to modify the final clause regarding funding then the following words would have to be

93

statutory construction, used to determine an act’s meaning, include an examination of the
law’s overall structure and purpose.’63
The overall structure of NCLB is consistent with a reading of § 7907(a) that
retains the basic conditions of assistance of the statute but limits the Secretary of
Education’s ability to require states to fund things that were not contemplated by the act.
NCLB is a statute that aspires to improve the educational opportunity and academic
performance of all students in the U.S.364 by requiring states to devise and implement

365

their own challenging academic standards and accountability systems that measure

adequate yearly progress of their schools in preparing all students to meet these

366 with content being taught by highly qualified teachers,367 all

educational standards,
students taking academic assessments, 368 and having their scores publicly reported.369 It
offers states, schools and teachers the flexibility to devise and implement their own
version of the law’s key requirements in exchange for greater accountability for student
performance.370 States and local educational agencies that desire to obtain funding under
the act must submit plans that guarantee they will meet the law’s requirements.371 If a

state does not fulfill any of its obligations under the law, the Secretary of Education has

the authority to withhold fundingm

 

substituted into the provision in order to effect the desired result (“. .. or incur any costs not paid for under
this Act rather than “. . .not authorized under this Act”). Sch. Dist. of Pontiac v. Sec’y of the U.S. Dep’t of
Educ., 2008 WL 60187 *11-12 (6th Cir. Jan. 7, 2008).

363 Bell Atlantic v. FCC, 131 F .3d 1044, 1047 (DC. 1997).

364 20 U.S.C. § 6301 (2003).

365 20 U.S.C. § 631 1(b)(l) (2003).

366 20 U.S.C. § 6311(b)(2) (2003).

367 20 U.S.C. § 6319(a) (2003).

368 20 U.S.C. §631 1(b)(3) (2003).

369 20 U.S.C. § 631 1(h) (20003).

370 20 U.S.C. § 6301(7) (2003).

371 20 U.S.C. § 631 1(a)(1) (2003); 20 U.S.C. § 6312 (2003).

372 “If a State fails to meet any of the requirements of this section, other than the requirements described

94

Although federal fimding for education has increased substantially under NCLB,
there is no implication in the law that all costs will be covered. In fact, there is no
mention of the cost of compliance in the statute, and the formula for distributing federal
Title 1 education funding is based on the number of children from families with incomes

1,373 not on any estimates of the actual costs that might be incurred

below the poverty leve
by states or districts in creating, implementing, and administering the requirements of the
law. In addition, most schools that do receive funding must spend funds only on the
specific students for whom the money is given, not on the entire student body.374
Moreover, NCLB requires all school districts in states that participate to test students
under their challenging academic standards, even if the districts do not receive NCLB
funding.375

These are all indications that Congress “did not intend to tie the cost of complying
with NCLB’s requirements to the amount of federal funding, which is inherently subject
to change based on the spending priorities of each particular Congress and its competing
demands for increasingly scarce federal dollars.376 Instead, NCLB contains a section that
excuses state performance o_nly from administering assessments and M federal

377

funding falls below certain levels, which have been met. In addition, there is a

 

in paragraph (1), then the Secretary may withhold funds for State administration under this part [20 USCS
§§ 6311 et seq.] until the Secretary determines that the State has fulfilled those requirements.” 20 U.S.C. §
6311(g)(2) (2003).

373 20 U.S.C. § 6333(a)-(c) (2003).

374 20 U.S.C. § 6333(a)(l)(B) (2003).

375 20 U.S.C. § 6311(b)(3)(C)(ix)(I) (2003).

376 Sch. Dist. ofPontiac v. Sec’y ofthe U.S. Dep’t of Educ., 2008 WL 60187 *20 (6th Cir. Jan. 7, 2008)
(McKeague, J., dissenting).

377 20 U.S.C. § 6311(b)(3)(D)(2003).

95

maintenance of state effort provision that obligates states to continue their substantial
financial support for education when federal funding is provided.378

The unfunded mandate provision does not alter the fundamental obligations the
states assumed when they agreed to accept federal funding under NCLB. Instead, this
section’s reference to an “officer or employee of the Federal Government” can be most
reasonably interpreted to limit the U.S. Department of Education’s power to add extra
requirements that were not originally included in the act and would require states or local
educational agencies to spend their own fimds to accomplish. Thus, the unfunded
mandate provision is best read as follows: “Nothing in this Act [20 USCS §§ 6301 et
seq.] shall be construed to authorize an officer or employee of the Federal Government to
mandate a State or any subdivision thereof to spend any funds or incur any costs not
paid for under this Act.”379

This reading is proper for several reasons. First, the reading is most consistent
with the act’s purpose to improve the educational opportunities of all children in the
nation. Second, this reading is most consistent with the extensive obligations for
educational standards, assessments, and accountability systems that it allows states to
first define and then commit to implementing. Third, it is consistent with the provisions
that do not link funding with the costs of compliance but still hold states to the financial
obligations they assume380 and provide excuses for non-compliance only in limited
circumstances.381 Fourth, this reading is consistent with the text of § 7907(a) that

specifically refers to federal officers or employees: “In expounding a statute, the Court

 

378 20 U.S.C. § 6321(b)(1) (2003).
379 20 U.S.C. § 7907(a) (2003).
380 20 U.S.C. § 6321(b)(1).

381 20 U.S.C. § 6311(b)(3)(D).

96

must not be guided by a single sentence or member of a sentence, but look to the
provisions of the whole law, and to its object and policy.”382 It is the only reading that
maintains the integrity of the act. Finally, it avoids the “absurd effect of eviscerating with
a single provision the entire comprehensive scheme of accountability requirements and
financial disbursements set forth in hundreds of pages of statutory text.”383 Therefore, the
unfunded mandate provision should be read in the context of the whole statute as only
limiting officers’ and employees’ of the federal government ability to impose additional
requirements on states not included in the original statute and NCLB should be found to
be within Congress’ permissible use of its Spending Clause power to encourage states to
implement its conditions in exchange for federal funding for education. With this issue
addressed, we turn to the other relevant limitation on Congress’ conditional spending
power, the fifth listed by the Court in South Dakota v. Dole,384 to determine if NCLB
amounts to impermissible coercion that infi‘inges on states’ sovereignty.
2.3.2.4 - Limit to Grant of Authority — Coercion
2.3.2.4.] — Overview of the Law
In order for the federal use of the spending power to be valid, the conditions
imposed on the states and localities in exchange for federal benefits received cannot be so
coercive as “to pass the point at which pressure turns into compulsion.”385 To make this
determination, courts examine whether states have a real choice on whether to participate

or are instead forced into submitting to Congress’ desires set forth in the legislation in

 

382 Pennhurst State Sch. & Hosp. v. I-lalderman, 451 U.S. l, 18 (1981).

383 Sch. Dist. of Pontiac v. Sec’y of the U.S. Dep’t of Educ., 2008 WL 60187 *20 (6th Cir. Jan. 7, 2008)
(McKeague, J ., dissenting).

384 South Dakota v. Dole, 483 U.S. 203, 21] (1987).

385 South Dakota v. Dole, 483 U.S. 203, 211 (1987).

97

question.386 If the federal action goes beyond encouraging state participation in a federal
program to coercing it, it violates the Tenth Amendment as an encroachment on state
sovereignty because it interferes with a power reserved to the states.387 To decide whether
federal spending conditions constitute coercion rather than encouragement, courts have
consistently looked to the scope of the forfeiture of federal funding.388 Other factors that
have also been considered are the nature and severity of the alleged breach of duties by
the state,389 the period of time the federal government has maintained that the provision

390

in question is an essential component of the federal-state relationship, and the extent to

which the condition treads on a state’s essential policy-making functions.391

Although several courts have considered coercion arguments by examining the
amount of money states would have to sacrifice if they would reject federal firnding, none
have found that the federal requirements rose to the level of undue coercion.392 In South
Dakota v. Dole, a potential loss of 5% of federal highway funds for states that chose not
to enact a drinking age of twenty-one was not found to be a coercive condition.393 This
financial inducement was characterized by the Court as a mild encouragement to adopt
the drinking age minimum, one that did not remove a state’s real choice to decide

whether to participate in the federal program.394 Similarly, in Hodges v. Shalala, a

requirement that states establish and operate a specific child support enforcement system

 

386 Jim C. v. United States, 235 F.3d 1079, 1082 (8th Cir. 2000).

387 New York v. United States, 505 U.S. 144, 156 (1992).

388 See South Dakota, 483 U.S. at 21 l; Hodges v. Shala, 121 F .Supp.2d 854, 875 (D.S.C. 2000); Jim C.,
235 F.3d at 1082; Virginia Dep’t of Educ. v. Riley, 106 F.3d 559, 569 (4th Cir. 1997); Pace v. Bagalusa
City Sch. Bd., 403 F.3d 272, 287 (5th Cir. 2005).

389 Hodges, 121 F.Supp.2d at 876; Virginia Dep’t of Educ., 121 F.Supp.2d at 570.

390 Hodges, 121 F.Supp.2d at 876.

391 Id.; Virginia Dep’t of Educ., 121 F.Supp.2d at 571.

392 West Virginia v. U.S. Dep’t of Health and Human Serv., 289 F.3d 281, 289 (4th Cir. 2002).

393 South Dakota v. Dole, 483 U.S. 203, 211-12 (1987).

394 Id.

98

as a condition of receiving federal monies under the Temporary Assistance to Needy
Families (TANF) program was not found to be coercive even though the states could
potentially lose all fimding under it for non-compliance because the federal program
offered alternative penalty options that would only result in the loss of a maximum of six
percent of federal TANF fimds.395

Courts have not found the federal conditional spending power coercive even when
they may cost states their entire federal funding for a program or a particular state
agency. In Jim C v. United States, the Court held that the federal government’s insistence
that Arkansas either give up all of its federal education finding, in the amount of $250
million, or accept it and be subject to lawsuits under §504 of the Rehabilitation Act,
although politically painful, was not unduly coercive so as to invalidate Congress’ use of
its conditional spending power.396 Instead, it was a normal quid pro quo type of
arrangement where the federal government offers states firnds in exchange for performing
certain activities.397

However, one court did suggest that a total loss of funding for one education
program based on a minor infraction under the act for which funding was received would
amount to coercion in violation of the Tenth Amendment. In Virginia Department of
Education v. Riley, the court, after finding that the U.S. Department of Education’s
interpretation of the Individuals with Disabilities Act, which required states to provide
special education services to students with disabilities who were expelled from school for

reasons unrelated to their disabilities, violated the Spending Clause because it was not

 

395 Hodges v. Shalala, 121 F .Supp.2d 854, 874-77 (D.S.C. 2000).

396 Jim C v. United States, 235 F.3d 1079, 1081-82 (8th Cir. 2000).

397 1d; Pace v. Bogalusa City School Board, 403 F.3d 272, 287 (5th Cir. 2005) (finding no coercion under
either the Individuals with Disabilities Act or §504 of the Rehabilitation Act).

99

clearly and unambiguously stated in the act. The court said that the state had a strong
claim that this condition was coercive because the U.S. Department of Education had
withheld 100% of Virginia’s fimds under the act for its failure to provide services to less
than one tenth of one percent of eligible students in the state.398
2.3.2.4.2 — The Connecticut v. Spellings Lawsuit

In the Connecticut NCLB unfunded mandate lawsuit, Connecticut argues that the
Secretary of Education’s penalties are so harsh and unrelated to the conditions upon
which Connecticut accepted the funds that they violate the Tenth Amendment.399
Connecticut contends that it stands to lose hundreds of millions of dollars in federal

education funding if it attempts to opt out of NCLB.400

To support this claim, Connecticut
cites the U.S. Department of Education’s response to Utah’s inquiry about the financial
effect of opting out of NCLB. The U.S. Department of Education told Utah that it would
lose all of its funding that relied upon the Title 1 formula for distribution, not just the
federal funds provided under NCLB.40' From 2002-2005, Connecticut received
approximately $175 to $184 million per year under Title 1 and $287 to $325 million per
year in total education firnding.402 This money is in jeopardy if Connecticut fails to

comply with NCLB. Because states are becoming increasingly dependent upon federal

funding for education, the U.S. Department of Education’s threat to remove most of the

 

398 Va. Dep’t of Educ. v. Riley, 106 F.3d 559, 569-572 (4th Cir. 1997).

399 Second Amended Complaint, Connecticut v. Spellings, supra note 309, at 43.

400 Id. at 16.

401 Id.. These monies would include funds for safe and drug free schools, after-school programs, and
literacy programs for parents. The State’s Opposition to the Secretary’s Motion to Dismiss, Connecticut v.
Spellings, supra note 315, at 7.

402 Second Amended Complaint, Connecticut v. Spelling, supra note 309, at 15. Federal education funding
represents approximately 5% of overall educational spending in Connecticut and between 10% and 15% of
the budgets in certain districts. Id.

100

federal education funding is coercive.403 Therefore, the federal government has intruded
into the state’s sovereignty through its imposition of NCLB.

The U. S. Department of Education responds to these claims by saying that
requiring states to honor the obligations they assumed under the conditional spending
clause does not intrude on their sovereignty. It is clearly within a states’ power to refuse
federal funding under NCLB and not be subject to its requirements.404 Moreover, the
boundary between inducement and coercion has never been well defined by the courts,
and courts have found no coercion where large amounts of money were at stake.405 So,
NCLB is a valid exercise of Congress’ conditional spending power. It does not violate the
Tenth Amendment.

2.3.2.4.3 - Analysis

Although the courts have articulated that limiting the federal government’s ability
to unduly infringe on a state’s sovereignty by compelling its participation through
coercive conditions is an important limitation on Congress’ spending power, no court has
actually found Congressional conditions to be coercive, and the point at which the
incentive Congress offers within a conditional spending statute passes from
encouragement to coercion is unclear.406

The coercion claim is difficult to analyze for two reasons: (1) few lawsuits have
been successfully prosecuted using it, so the legal standard is not well-established; and

(2) Connecticut remains in compliance with NCLB’s requirements, so the U.S.

Department of Education has not taken any enforcement action against it. Therefore,

 

403 1d

404 Memorandum of Law in Support of Defendant’s Motion to Dismiss, Connecticut, supra note 317, at
49.

405 Id at 50.

406 West Virginia v. U.S. Dep’t of Health and Human Services, 289 F.3d 281, 288-289 (4th Cir. 2002).

101

there is no actual scope of the breach or magnitude of withholding to apply to the legal
principles set forth in the relevant Tenth Amendment cases. Connecticut desires the court
to rule before it actually does not comply with NCLB because it potentially stands to lose
much of its education funding.

Assuming that the U.S. Department of Education removes 100% of the state’s
Title 1 fimding, plus some additional funding that uses the Title 1 distribution formula,
Connecticut would lose at least $184 million in annual funding, which amounts to over
50% of their total federal education funding. Moreover, this funding affects education, a
primary state responsibility. While this is a substantial amount of money for an essential
state function, this figure must be weighed against the nature and severity of the breach.
Here Connecticut’s primary desire is not to implement the required summative testing in
grades 3, 5, and 7 and instead use formative tests in those years. Essentially, Connecticut
is asking to continue its student assessment system in the grades it covered before NCLB
was adopted without adding the new assessments required by the law.407 The U.S.
Department of Education considers annual assessments to be one of the act’s
cornerstones, so failure to conduct these would be a material and substantial breach of
NCLB.

Ultimately, any action the U.S. Department of Education takes against

Connecticut in withholding funds for its future non-compliance with NCLB because of a

 

407 Connecticut’s student assessment system consists of three categories of tests: the Connecticut Mastery Test
(CMT), the Connecticut Academic Performance Test (CAPT), and the CMT/CAPT Skills checklist, an
alternate assessment. The CMT was first administered in 1985 to measure the achievement and progress of
Connecticut students in Grades 4, 6 and 8. Its most recent version, begun in 2005-2006, is a criterion
referenced test that assesses three major content areas on each grade-level version of the CMT: reading,
writing and mathematics. CONNECTICUT STATE DEP’T OF EDUC. BUREAU OF STUDENT ASSESSMENT
BUREAU OF SPECIAL EDUC. ASSESSMENT GUIDELINES FOR ADMINISTERING THE CONNECTICUT MASTERY
TEST, CONNECTICUT ACADEMIC PERFORMANCE TEST AND THE CMT/CAPT SKILLS CHECKLIST TO
STUDENTS ENROLLED 1N SPECIAL EDUCATION STUDENTS IDENTIFIED UNDER SECTION 504 OF THE
REHABILITATION ACT & STUDENTS WITH LIMITED ENGLISH PROFICIENCY (2005).

102

refusal to implement annual testing is likely to be upheld as not infringing on
Connecticut’s sovereignty. Even a total withholding of federal education funding to the
state would amount to only 5% of Connecticut’s total educational expenditures.408 It is
unlikely that a court would find that this amount would result in a compulsion for
Connecticut to participate in NCLB. Even if all federal education dollars were withheld,
Connecticut would retain the real choice and the right to decline federal funding and not
participate in NCLB.
2.4 - Is NCLB AN UNFUNDED MANDATE — THE RESEARCH ON THE FINANCES

There is little agreement in the education community about how much NCLB
actually costs to implement. Disagreement is due to a number of factors including a lack
of consensus over what counts as legitimate costs attributable to the Act, the difficulty in
estimating uncertain firture costs, and differences in the methodologies used to calculate
the costs. Several cost studies have been conducted on this topic, and several
methodologies have been used to estimate NCLB costs in them.409

The 2005 National Conference of State Legislatures (N CSL) report on The No
Child Left Behind Act outlines six distinct approaches to estimating NCLB costs.“0 The
methods to calculate NCLB costs include the relative federal expenditure increases,"ll

412

unspent balances in federal education accounts, the difference between the statutory

 

408 Second Amended Complaint, Connecticut v. Spellings, supra note 309, at 15.

409 See William J. Mathis, The Cost of Implementing the Federal No Child Left Behind Act. Diflerent
Assumptions, Diflerent Answers, PEABODY J. OF EDUC., 80(2), 90-119 (2005) (summarizing the results
from the studies performed).

410 NAT’L CONFERENCE OF STATE LEGISLATURES, supra note 273, at 43. See also Mathis, supra note 409,
at 93-97 (listing a similar set of approaches).

411 In this method, federal spending increases are compared to previous levels of federal financial support.
See e. g. CENTER ON EDUCATION POLICY, Title 1 Funds: Who 's Gaining and Who 's Losing: School Year
2006-07 Update, (2007), (reporting stagnant funding levels for 2006-07 year) , http:l/www.cep-
dc.org/index.cfm?fusea_tction=page.viewpage&pageid=509.

412 This method measures the amount of money present in federal education accounts.

103

authorization and actual appropriation amounts,413 the statutory definition of full
funding,414 compliance costs,"15 and proficiency costs.416 The NCSL report concludes that
a compliance versus proficiency cost estimate approach is the one that best captures the
actual costs of the law.417 This approach contrasts the conservative cost estimates
generated by those who believe that only the technical compliance costs like the
administrative and processing costs should be counted as NCLB costs with the much
more generous estimates that consider all of the costs necessary to bring the nation’s
children up to proficiency in the high academic standards called for by NCLB.418

2.4.1 - Compliance Costs

Compliance costs are generally comprised of the direct costs the state will incur in
administrating NCLB, including the annual testing, data collection, analysis and
reporting, implementing adequate yearly progress (AYP), providing sanctions such as
school choice, supplemental services, and technical assistance, and getting teachers to
meet the “highly qualified” definition. 4’9 This is the approach that many state NCLB cost
studies adopt. The National Conference of State Legislatures Task force on NCLB
estimates that these costs will range from 1 percent of aggregate K-l2 budgets to 5.3
0

percent of state aggregate resources, with 2 percent emerging as a national average.42

Consequently, the NCSL concludes under the lowest cost estimates, i.e. those that

 

413 The authorization amounts are taken fi'om the statutory provisions and then compared with actual
legislative appropriations.

414 Full funding is defined in the statute as 40 percent of the average state per pupil expenditure for Title I
students. See e. g. NAT’L EDUC. ASS’N, NO CHILD LEFT BEHIND? THE FUNDING GAP IN ESEA AND OTHER
FEDERAL EDUC. PROGRAMS 7 (2004), (identifying a $16.5 billion funding gap in Title I-A in 2003 alone)
http://www.nea.org/esea/images/funding-gap.pdf.

415 NAT’L CONFERENCE OF STATE LEGISLATURES, supra note 273, at 43.

416 Id.

417 Id.

418 Mathis’ work also focuses on these approaches, which he calls “administrative, implementation, and
‘hard costs’” and “costs of teaching children to the standards.” Mathis, supra note 409, at 96-97.

419 Id. at 41.

420 Id. at 46.

104

consider just compliance costs, the increased federal funding should cover the average
state compliance costs of the law since federal NCLB fimding increases are estimated to
contribute an additional two percent to overall education fundingm Virginia’s NCLB’s
cost estimate supports this finding. In a 2005 report, the state calculates the actual new
costs of implementing NCLB at approximately $20 million/year from 2004-2008.
Virginia officials expect the additional federal revenues provided under the law to cover
these costs."22

One aspect of compliance costs, the development and administration of state
assessments, is considered particularly expensive by the states. The General Accounting
Office estimated that states will have to expend between $1.9 and $5.3 billion for the first
six years of NCLB (fiscal year 2002 - 2008).423 The $1.9 billion figure represents all
states using multiple choice question tests. If states employ tests using a mixture of
multiple-Choice questions and a limited number of open-ended questions where students
write a short response, the cost would be $5.3 billion. The method by which tests are
scored largely explains the differences in cost estimates. State spending will be at about
$3.9 billion if the states keep the mix of question they reported when this study was

conducted.424

 

4211d. at 45. Because this is an average estimate, several states have estimated their costs substantially
higher than this. For example, Connecticut, Hawaii, and Minnesota’s estimates are described as marginal
costs of compliance, not proficiency, but they still find a substantial cost differential from the funds
provided under NCLB. But see Mathis, supra note 409, at 103 (concluding that even with a 2% to 2.5%
cost estimate increase, new federal NCLB revenues will not cover implementation costs).

422 VIRGINIA DEP’T OF EDUC., REPORT TO THE GOVERNOR AND GENERAL ASSEMBLY ON THE COSTS OF THE
FEDERAL NO CHILD LEFT BEHIND ACT TO THE VIRGINIA DEP’T OF EDUC. 24 (2005),
http://www.doe.virginia.govNDOE/nclb/coststudvreport-state.pdf.

423 U.S. GEN. ACCOUNTING OFFICE, GAO-03-3 89, TITLE 1: CHARACTERISTICS OF TESTS WILL INFLUENCE
EXPENSES; INFORMATION SHARING MAY HELP STATES REALIZE EFFICIENCIES 3 (2003),
http://www.gao.gov/new.items/d03389.pdf.

424 Id.

105

In its lawsuit, Connecticut estimates that it will spend $14.4 million on
assessments in 2006, but federal funding will only be $5.8 million, thus producing a $8.6
million shortfall.425 In addition, Connecticut estimates that it will need to spend $1.5
million for Special education student assessments.426 These additional expenses would
bring the NCLB funding shortfall to $10.1 million for 2006. The total of all Connecticut’s
federal Title 1 funding for 2006 was $100 million.427

2.4.2 — Proficiency Costs

The proficiency costs are the additional resources needed to actually increase
student achievement to the levels specified by NCLB. This can include a wide array of
activities, some of which states were doing prior to NCLB. But fulfilling the expectation
of having all children proficient by 2013-2014 will require states to drastically increase
funding for these programs and others.428 It is these costs that detractors of NCLB most
frequently cite.

William J. Mathis examined the cost studies for ten states — Maryland, Indiana,
Montana, Nebraska, New Hampshire, New York, South Carolina, Texas, Vermont, and
Wisconsin — and summarized their conclusions regarding the cost of bringing the state's
children up to a high academic standard.429 Each of the ten states found that providing a

"standards-based" NCLB education for all children will require massive new investments

 

425 Second Amended Complaint, Connecticut v. Spellings, supra note 309, at 19.

426 Id. Sixty-five thousand students with disabilities receive special education services in Connecticut.
These students represent 1 1.4% of the total school population of children ages 6-21 in the state. CT State
Dep’t of Educ., Assessment guidelines, supra note 407. From 1990 to 2004, many students with disabilities
in Connecticut were given the CMT test that corresponded to their instructional level, a practice known as
out of level testing (OOL). For example, a 9th grade student may take the 7th grade CMT. This is the
practice the state requested to continue under in its plan amendments to NCLB. Connecticut v. Spellings,
453 F.Supp.2d 459 (D. Conn. 2006).

427 U.S. DEP’T OF EDUCATION, ESEA TITLE 1 GRANTS TO LOCAL EDUC. AGENCIES (2007), supra note 275.
428 NAT’L CONFERENCE OF STATE LEGISLATURES, supra note 273, at 41.

429 William J. Mathis, No Child Left Behind: What are the Costs? Will We Realize any Benefits? (2003).

106

in education spending. Seven of the 10 studies Show increases in base cost that are greater
than 24%, and of these, six were between 30% and 46%; two were in the 15% range; one
did not directly address the base cost. Mathis uses these studies to approximate the total
new investment needed in our educational system. Starting from a figure of $422.7
billion in 2001-2002, Mathis estimates a need for an additional $84.5 billion a year by
adding 20% to the total annual national education expenditures and $148 billion with a
35% increase.430
The cost study done for the State of Ohio illustrates the projected massive
amounts of expenditures needed when an expansive approach, one that considers both
compliance and proficiency costs, to estimating NCLB costs is adopted. In Ohio’s study,
the overwhelming majority of the costs are allocated to the proficiency interventions in
the schools. These include additional teacher and instructional assistant salaries, summer
school costs, extended school day costs, intensive in-school academic intervention,
academic coordination services, and early assessment and intervention monitoring. The
report estimates that Ohio districts will need an additional $1.5 billion annually to
implement fully NCLB. The programs and services purchased with this money are
designed to empower 100% of Ohio’s children to achieve proficiency on its state
achievement standards. Federal funding for Ohio is only estimated to be $44 million.431
2.4.3 - Analysis

The technical issue of whether NCLB is an unfunded mandate depends on

whether the costs of compliance or the costs of compliance plus proficiency are

 

430 Id.

431 William Driscoll & Dr. Harold Fleeter, OHIO DEP’T OF EDUC., PROJECTED COSTS OF IMPLEMENTING
THE FEDERAL “NO CHILD LEFT BEHIND” ACT IN OHIO
(2003),http://www.ode.state.oh.us/GD/DocumentManagement/DocumentDownload.aspx?DocumentID=29
47.

107

measured. If states only consider their administrative costs when implementing the law,
these will, for the most part, be covered by the increased federal funding under NCLB
because federal funding has increased approximately 2% under the act and this coincides

‘32 If, on the other

with the average estimated expenses for states in implementing the law.
hand, states include the cost of interventions to raise all student performance to the
proficiency level, the additional federal funds supplied under NCLB will be vastly
insufficient. Connecticut strongly argues that its Title 1 funding will not be adequate to
cover its costs, particularly for its assessments. This claim is probably true because
Connecticut uses assessments that are much more expensive to develop and to score than
the multiple choice formats utilized by many other states. With this in mind, the U.S.
Department of Education suggested that Connecticut implement multiple choice tests for
the grades whose assessments are newly required by NCLB. Connecticut has rejected this
suggestion and has developed its high quality assessments for all grades that are tested.
Therefore, it is likely that Connecticut has incurred substantial costs to comply with
NCLB.
2.5 — CONCLUSION

Over the past Sixty years, policy analysts, educators and administrators have
watched the influence of the federal government grow in the field of education. The
NCLB represents the most far-reaching manifestation of this powerful federal presence in
an area that has, by both law and tradition, been reserved to the states. In the educational
policy arena it is frequently alleged that NCLB is an unfunded mandate because it asks

states and local school districts to implement educational standards, assessments, and

accountability systems for all students in the nation while only providing federal funding

 

432 NAT’L CONFERENCE OF STATE LEGISLATURES, supra note 273, at 42.

108

in certain limited amounts; amounts that many contend are insufficient to perform all of
the necessary tasks.

NCLB represents the latest iteration of the federal government’s use of its
conditional spending power, granted in Article 1, Sec. 8, clause 1 of the U.S.
Constitution, in a manner that has gradually expanded its role in setting education policy
by offering states federal dollars in exchange for compliance with the conditions
specified in the relevant laws, such as the Individuals with Disabilities Education Act433
and the Elementary and Secondary Education Act.434 To be valid, these statutory
conditions must be in pursuit of the general welfare, unambiguous, related to the federal
interest, not prohibited by other constitutional provisions, and not coercive."35

The Sixth Circuit Court of Appeals weighed in on this debate in early 2008,
essentially agreeing with the unfunded mandate claims,436 ruling in Pontiac v. Secretary
of the U.S. Department of Education, that NCLB exceeds Congress’ Spending Clause
authority because it does not provide clear notice regarding who bears the additional
costs of compliance for implementing the law’s requirements.437 This article has
examined the legal context and the arguments in both this lawsuit and Connecticut v.
Spellings,438 and reached the opposite conclusion, arguing instead that NCLB is a valid
exercise of Congress’ Spending Clause power. NCLB is a permissible use of Congress’

conditional spending power because it is consistent with the principles that govern its use.

It promotes the general welfare of the nation and is related to the federal interest of

 

433 20 U.S.C. § 1400 et seq. (2000 & Supp. 2006).

434 20 U.S.C. § 6301 et seq. (2003) (original version at ch. 70, 79 Stat. 27 (1965)).

435 South Dakota v. Dole, 483 U.S. 203, 207(1987).

436 Although a Spending Clause analysis is one that examines whether an inducement is proper. Congress
may not mandate state or local action under this clause of the Constitution. See U.S. CONST. art. I, § 8, cl.
1; McDonnell & Elmore, supra note 219, at I38-39.

437 Sch. Dist. of Pontiac v. Sec’y of the U.S. Dep’t of Educ., 2008 WL 60187 (6th Cir. Jan. 7, 2008).

438 Connecticut v. Spellings, 453 F.Supp.2d 459 (D. Conn. 2006).

109

improving the educational opportunity for all students. It unambiguously conditions
federal financial assistance on the firlfillment of its terms that require states to define and
implement standards, assessments, and accountability systems, and states have clear
notice of their responsibility to pay for the costs of these reforms if federal fiInds are not
sufficient. It does not induce states to violate other constitutional provisions. And states
retain a real choice either to accept federal funds or decline them if they do not wish to
participate in this program. Thus, from a legal perspective, NCLB is not an unfunded
mandate.

Moreover, NCLB is not an unfunded mandate from a financial perspective.
Although NCLB implementation cost estimates differ depending on the approach used,
calculations that include only the basic compliance costs of implementation and
administration of the technical requirements predict that the new federal funding
provided under the law will be sufficient to cover the average estimated expenses for
states implementing the law.439 Funding under NCLB will not, however, cover the
proficiency costs of raising student performance to higher levels of academic
achievement. Under the conditions of the statute, states and local school districts must
fund any additional monies that are necessary to achieve their student achievement goals.

Even though NCLB has generated a lot of controversy in the education
community, its passage is within the scope of Congress’ Spending Clause power. Judge
McKeague made the following observation in his dissent in the Pontiac decision, “[t]he
notion that Congress intended to pay in full for a testing and reporting regime of
indeterminate cost, designed and implemented by States and school districts, not federal

agencies, is not only nonsensical and fiscally irresponsible, but also contravenes the

 

439 NAT’L CONFERENCE OF STATE LEGISLATURES, supra note 273, at 42.

110

traditional recognition of State and local governments’ primary responsibility for public
education.”440Therefore, after examining the law’s language and structure, and in light of
this clear division of responsibility for public education among government agencies,
NCLB is best characterized as a permissible promotion of the federal education ideal of
improving the educational quality of all students in this country, rather than an unfunded

mandate.

 

440 Sch. Dist. of Pontiac v. Sec’y of the U.S. Dep’t of Educ., 2008 WL 60187 *22 (6th Cir. Jan. 7, 2008)
(McKeague, J ., dissenting).

lll

CHAPTER 2 BIBLIOGRAPHY

112

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01330 (MRK), (D. Conn., Jan. 13, 2006).

San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973).

School District of Pontiac v. Spellings, No. C1V.A.05-CV-71535-D, 2005 WL 3149545 (E.D.
Mich. Nov. 23, 2005).

Sch. Dist. of Pontiac v. Sec’y of the U.S. Dep’t of Educ., 2008 WL 60187 (6th Cir. Jan. 7, 2008).
School-to-Work Opportunities Act, 20 U.S.C. § 6111 et seq. (2003).

Second Amended Complaint, Connecticut. v. Spellings, No. 3:05-cv-l 330 (MRK) (D. Conn.
June 6, 2006).

Sch. Dist. of Pontiac v. Spellings, Civ.A. 05-CV-71535-D, 2005 WL 3149545 (E.D. Mich. Nov.
23, 2005), reversed, Sch. Dist. of Pontiac V. Sec’y of the U.S. Dep’t of Educ., 2008 WL
60187 (6th Cir. Jan. 7, 2008).

Sch. Dist. of Pontiac v. Sec’y of the U.S. Dep’t of Educ., 2008 WL 60187 (6th Cir. Jan. 7, 2008).

South Dakota v. Dole, 483 U.S. 203 (1987).

State’s Memorandum Regarding its First Amended Complaint, Connecticut. v. Spellings, No.
3:05cv1330 (D. Conn., Feb. 28, 2006).

Ryan C. Squire, Ejfectuating Principles of Federalism: Reevaluating the Federal Spending
Power as the Great Tenth Amendment Loophole, 25 PEPP. L. REV. 869 (1998).

The State’s Opposition to the Secretary’s Motion to Dismiss, Connecticut. v. Spellings, No.
3:05-cv-1330 (MRK) (D. Conn. Dec. 23, 2005).

116

U.S. CONST. amend. X.
U.S. CONST. art. I, § 8, cl. 1.
U.S. CONST. art. I, § 8, c1.3.

U.S. DEP’T OF EDUCATION, 10 FACTS ABOUT K-12 EDUCATION FUNDING (2005),
http://www.ed.gov/about/overview/fed/10facts/l 0facts.pdf.

 

U.S. DEP’T OF EDUCATION, ESEA TITLE 1 GRANTS TO LOCAL EDUC. AGENCIES (2007),
http://www.ed.gov/about/overview/budget/statetables/OSstbyprogampdf.

U.S. DEP’T OF EDUC. OVERVIEW OF NCLB (2003),
http://www.edgov/nclb/accountabilitv/index.html.

U.S. GEN. ACCOUNTING OFFICE, GAO-O3-389, TITLE 1: CHARACTERISTICS OF TESTS WILL
INFLUENCE EXPENSES; INFORMATION SHARING MAY HELP STATES REALIZE EFFICIENCIES
3 (2003), http://www.gao.gov/new.items/d03389.pdf.

U.S. GEN. ACCOUNTING OFFICE, GAO-o4-63 7, UNFUNDED MANDATES: ANALYSIS OF REFORM
ACT COVERAGE 4 (2004), http://www.gto.gov/new.items/d04637.pdf.

VIRGINIA DEP’T OF EDUC., REPORT To THE GOVERNOR AND GENERAL ASSEMBLY ON THE COSTS
OF THE FEDERAL NO CHILD LEFT BEHIND ACT TO THE VIRGINIA DEP’T OF EDUC. (2005),
http://www.doe.virginia.gov/VDOE/nclb/coststudyreport-state.pdf.

Virginia Dep’t of Educ. v. Riley, 106 F .3d 559 (4th Cir. 1997).

Mark Walsh, Full Appeals Court to Reconsider Ruling that Revived NCLB Suit, 27 EDUC. WEEK
8 (May 7, 2008).

Darnell Weeden, Does the No Child Left Behind Law (NCLBA) Burden the States as an
Unfunded Mandate Under Federal Law?, 31 T. MARSHALL L. REV. 239 (2006).

West Virginia v. U.S. Dep’t of Health and Human Serv., 289 F.3d 281 (4th Cir. 2002).

Amanda K. Wingfield, The No Child Left Behind Act: Legal Challenges as an Underfitnded
Mandate, 6 LOY. J. PUB. INT. L. 185 (2005).

117

Chapter 3 - IDEA and NCLB - Convergence and Dissonance in Special Education
Policy - The Growing Alignment between these Laws and the Continuing
Differences in their Conceptions of Equal Educational Opportunity
3.1 — Introduction
As an outside observer studying the No Child Left Behind Act (N CLB) from a
legal perspective, I was intrigued to find so much consternation in the special education
community over its 2002 authorization.“ On its surface the landmark legislation
providing sweeping guarantees that students with disabilities would be expected to
achieve improved academic goals in step with the general education peers, a laudable
goal sought by a generation of special education advocates. Yet concerns were raised
about the means through which NCLB would achieve this goal. While most educators
agreed that its principle purpose of improving educational results for all students,
including those with disabilities was a laudable goal— the most notable of which was
inclusion of all students in the standardized test regimen, which has proven to be the
accountability bulwark of the new law.442
Proponents described NCLB as an opportunity to enhance the educational rights
and opportunities for students with disabilities."’43 Several articles describe the potential

benefit to students with disabilities because of NCLB’S expectations for improved

educational performance and closing the achievement gap among students found in the

 

441 No Child Left Behind Act of 2001, 20 U.S.C. §§ 6301-7941 (2003 & Supp. 2008).

442 Christian E. Keele, Is the No Child Left Behind Act the Right Answer for Children with Disabilities?,
72 UNIV. OF MISSOURI AT KANSAS CITY L. REV. 1111, 1117-1 18 (Summer, 2004); Michael J. Wasta, No
Child Left Behind: The Death of Special Education?, 88(4) PHI DELTA KAPPAN 298, 299 (Dec. 2006).
443 Beth Handler, Meeting the Shared Vision of No Child Left Behind and Individuals with Disabilities
Education Improvement Act of 2004, 80(1) THE CLEARING HOUSE 5, 5-6 (Sept/Oct. 2006); Scott F.
Johnson, Reexamining Rowley: A New Focus in Special Education Law, 2003 BYU. EDUC. & L.J. 574-75
(2003); Stephen A. Rosenbaum, Aligning or Maligning? Getting Inside a New IDEA, Getting Behind No
Child Left Behind and Getting Outside of it all, 15 HASTINGS L.J. 1, 27-28 (Winter, 2004).

118

law’s requirements that students be included in and make progress in the general
education curriculum and participate in and achieve a proficient level on state academic
assessments.444

Detractors saw NCLB as a threat to the substantial rights that were afforded to
students with disabilities under the Individuals with Disabilities Education Act (IDEA)
because, as enacted, NCLB required that students with disabilities be fully included in its
standardized testing mandates.445 Two main categories of concern emerged. First, a shift
from IDEA’S focus on the unique needs of each child with a disability to a school’s
required level of attainment on the tests under NCLB was seen as a potential threat to
students with disabilities’ rights under IDEA to a free appropriate education.446 Second,
the potential negative effects on the students themselves that could result from NCLB
such as increased anxiety, a Shift in curriculum from life skills and personal success to
test taking techniques, and the likelihood of a higher drop-out rate for students with
disabilities because of the increased academic pressure.447

At the same time as this seminal conversation unfolded, both IDEA and NCLB
were being amended through legislative and administrative processes to address many of
the concerns raised by commentators regarding the full inclusion of students with

disabilities in NCLB’s accountability systems. The 2004 reauthorization of IDEA

Specifically incorporated many of the key NCLB accountability requirements. In

 

444 Handler, supra note 443, at 5; Johnson, supra note 443 at 574-75; Rosenbaum, supra note 443, at 27-
28.

445 Matthew R. Plain, Comment, Results Above Rights? The No Child Left Behind Act ’s Insidious Eflect
on Students with Disabilities, 10 ROGER WILLIAMS U. L. REV. 249 (Fall 2004); Michael Metz-Topez,
Comment, Testing — The Tension Between the No Child Left Behind Act and the Individuals with
Disabilities Education Act, 79 TEMP. L. REV. 1387 (Winter, 2006); ERIN G. Frazor, Comment, “No Child
Left Behind " in Need of a New “IDEA A Flexible Approach to Alternate Assessment Requirements, 36
GOLDEN GATE U. L. REV. 157 (Spring, 2006); Keele, supra note 442.

446 Keele, supra note 442, at 1119; Plain, supra note 445 at 258; Metz-Topodas, supra note 445, at 1409.
447 Keele, supra note 442, at [119-22; Metz-Topodas, supra note 445, at 1397-99.

119

addition, the U.S. Department of Education issued regulations that permitted certain
students with disabilities to take alternate assessments rather than the standardized
general assessments required under the original version of the law.

What few commentators acknowledge is that the subsequent modifications
provided greater alignment between the two laws. First, there is an agreement in the
overall purpose of the laws to improve the educational outcomes for students with
disabilities.448 Second, there is better coherence in their accountability provisions Since
both require the same performance goals and indicators for students with disabilities, that
all students must participate in assessments, and that their scores must be reported and
count towards a school’s AYP calculation.449 Third, there is better consistency among
their assessment requirements, which now permit alternate assessments.450

During the same time period, a parallel conversation was taking place regarding
the possibility of greater opportunity for students with disabilities under the new
accountability provisions in IDEA 1997 and 2004. Several articles were written to
advocate for an elevated educational benefit standard for the free and appropriate public
education students with disabilities must be provided by states under IDEA. Although
most focused exclusively on the provisions of IDEA in their argtunent, 45‘ one author

references NCLB’S high expectations for student achievement as support for this

 

448 Handler, supra note 3, at 5.

449 U.S. DEP’T OF EDUC. OFFICE OF SPECIAL ED. PROGRAMS, ALIGNMENT WITH THE N0 CHILD LEFT
BEHIND (NCLB) ACT (FEB. 2, 2007) at 4-5.

450 Id. at 5.

451 Tara L. Eyer, Greater Expectations: How the 1997 IDEA Amendments Raise the Basic Floor of
Opportunity for Children with Disabilities, 103 DICK. L. REV. 613 (Spring, 1999) (arguing that the “some
educational benefit standard” is no longer viable because of substantive changes that have been made to
IDEA over the years that emphasize greater expectations for the educational achievement of students with
disabilities); Johnson, supra note 443; AndreaValentino, The Individuals with Disabilities Education
Improvement Act: Changing What Constitutes an “Appropriate" Education, 20 J .L. & Health 139(2007).

120

claim.452 All allege that the “some educational benefit” requirement for the
appropriateness of the individualized education program provided to a child with a
disability that was articulated by the U.S. Supreme Court in Board of Education of the

453

Hendrick Hudson Central School District v. Rowley, should be raised to require states

to offer students with disabilities a higher substantive level of educational benefit.454

These conversations — the one regarding special education inclusion in NCLB’s
accountability system and the one arguing for greater educational rights for students with
disabilities under IDEA -- provide an excellent framework for examining the underlying
conceptions of equal educational opportunity that emerge from these policies. Both IDEA
and NCLB are compensatory education statutes that seek to promote a high quality
education for students with certain disadvantages, specifically including students with
disabilities. The compensatory education model embodied in the Education for All
Handicapped Children Act of 1975 established a level the playing field goal for students
with disabilities that offered them additional assistance to have an educational program
that was reasonably calculated to offer each child some educational benefit. Twenty-five
years later, NCLB was enacted with a conception of equal educational opportunity that
called for a higher standard, one of minimal achievement that required all students,

including those with disabilities, to reach a certain level of proficiency as demonstrated

by their proficiency on academic assessments.455 And so, at first glance, especially in

 

452 Johnson, supra note 443, at 561-62 (alleging that the “some educational benefit” standard no longer
accurately reflects the requirements of IDEA because of significant changes in the educational landscape,
specifically NCLB and the state standards movement, the educational adequacy state court decisions, and
the 1997 amendments to IDEA).

453 458 U.S. 176 (1982).

454 Johnson, supra note 443; Eyer, supra note 451; Valentino, supra note 451.

455 But see Harvey Kantor and Robert Low, From New Deal to No Deal: No Child Left Behind and the
Devolution of Responsibility for Equal Opportunity, 76(4) HARVARD EDUC. REVIEW 474, 482-88 (Winter,
2006) (arguing that although NCLB appears to promote equality of educational opportunity, in practice it is

121

light of the numerous advocates arguing under the new IDEA for a higher standard of
educational benefit for students with disabilities, the special education community’s tepid
response to NCLB seemed out of place.

This article explores this tension in the similarities and differences between the
rights and requirements IDEA and NCLB place on students with disabilities and the
underlying conceptions of equal educational opportunity embodied in these laws. It
utilizes two bodies of literature to do this: policy-making and equal educational
opportunity. The article begins in section 3.2 by outlining the foundational principles for
both theoretical frameworks. Regarding the policy-making process, it includes the
necessary background for the idea that laws are viewed as fixed or static and are often
discussed in this manner to allow for analysis of their specific components but that in
reality they are always changing through revisions made by Congress itself and the
administrative agencies charged with administering them. Regarding equal educational
opportunity, sketches out the central concepts conveyed by the terms “equality”, “equal
opportunity”, and “equality of educational opportunity” as they have manifested
themselves in the U.S. public education system, particularly related to students with
disabilities and identifies a equal outcomes conceptual model for describing it.

Section 3.3 traces the development of the guarantee of equal educational
opportunity to students with disabilities, starting in the 19603 with both the cases and
legislation that pre-date the Education for all Handicapped Children of 1975 and
including a discussion of this law and the U.S. Supreme Court decision in Rowley that

interpreted it.

 

likely to reduce it through a narrowing of the curriculum, a stigmatization of schools that educate large
numbers of low-income students, and, most importantly, its inattention to the broader social issues that
prevent student success in schools).

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Section 3.4 contains the discussion of federal education policy for students with
disabilities under both IDEA and NCLB. It examines the relevant portions of both laws
and then analyzes their conceptions of equal educational opportunity using the equal
outcomes framework set forth in the second section of the article and a description of
how federal courts currently analyze questions of educational opportunity under the
IDEA’s free appropriate public education (FAPE) provision. Using this information, it
then explains the tension in the requirements of both laws and the debate that has ensured
about including students with disabilities in general local and state standardized tests.

Section 3.5 looks specifically at the federal government’s assessment policy for
students with disabilities, as articulated in both NCLB and IDEA. Its particular focus is
on NCLB assessment policy, and it traces the development of the requirements for
participation of students with disabilities issued by the U.S. Department of Education
under NCLB and the resulting modifications to the full inclusion requirement in NCLB’s
original text to accommodate the concerns of special education advocates.

Section 3.6 contains the analysis. It describes the usefulness and limitations of the
policy cycle model for examining the changing nature of laws. It also applies both
models for describing the conceptions of equal educational opportunity: the equal
outcomes model and the Rowley FAPE test.

I conclude with my findings in Section 3.7 by identifying the critical distinction
between IDEA and NCLB, which both apply to students with disabilities. Special
education advocates value the responsibility of considering each child’s unique situation
in crafting an individualized education program under IDEA, one that arguably equates to

a lower level of equal educational opportunity known as level the playing field more

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highly than a blanket and perhaps unreachable promise that all students must minimally
achieve the same level of proficiency on a standardized test. It is this right that drove the
conversation leading the USDOE to modify NCLB’S assessment requirements from all
students taking the same standardized tests to the establishment of five different testing
options and a 3% exemption in AYP calculations for students with disabilities within five
years of NCLB’S passage.

3.2 - Theoretical Framework

This article examines special education policy under the lenses of two different
bodies of literature: policy-making and equal opportunity. It studies the main provisions
of the Individuals with Disabilities Education Act (IDEA) and the No Child Left Behind
Act (N CLB) to identify their similarities and differences with respect to their terms that
require the type of educational benefit or services that each school is required to provide
to a student with disabilities and the consequences that occur if they are not supplied
under each of the laws. It then compares both laws’ visions of the type and quality of
education students with disabilities must receive, paying particular attention to the laws’
view of accountability policy, using both bodies of literature. This section lays out the
relevant theoretical frameworks that are utilized in the analysis. The first focuses on the
process of policy-making that generates laws in this country using the policy cycle model
to observe the role the U.S. Department of Education (U SDOE) played in altering and
aligning the assessment requirements of NCLB and IDEA. The second considers the
notion of equal opportunity that has been promoted in the U.S. educational system in

order to examine the current conceptions that reside in IDEA and NCLB.

124

3.2.1 - The Policy-Making Process

Public policymaking is the process by which society chooses to do or not do
certain activities through government.456 “The goal of a political theory of the policy
process is to explain how interested political actors interact within political institutions to
produce, implement, evaluate and revise public policies.”457

Research about policy takes many forms. Two major categories of policy research
are analysis for policy and analysis of policy.45 8 Analysis for policy is concerned with
influencing policy decisions through either policy advocacy, information for policy, or
policy monitoring and implementation research. Analysis of policy is concerned with
how policy develops and analyzes either policy determination or policy content. This
article is an analysis of policy determination and content because it focuses both on the
process through which NCLB and IDEA were revised by NCLB’S regulations and
IDEA’S reauthorization and on conceptions of equality of educational opportunity in
these laws.

3.2.1.1 — Policy Development in General

Although there are several different ways to characterize the policy-making

process, the most enduring is the rational decision-making model that outlines the policy

cycle approach.459 The common formulation of this model contains the stages in which a

problem is identified and placed on the policy agenda, alternative solutions are proposed,

 

456 DAVID J. GOULD, LAW AND THE ADMINISTRATIVE PROCESS: ANALYTIC FRAMEWORKS FOR
UNDERSTANDING PUBLIC POLICYMAKING (University Press of America 1979) (1977).

457 Edella Schlager & William Bloomquist, A Comparison of Three Emerging Theories of the Policy
Process, 49(3) POLITICAL RESEARCH QUARTERLY 651 (Sept. 1996).

458 LES BELL & HOWARD STEVENSON, EDUCATION POLICY: PROCESS, THEMES AND IMPACT lO-l l
(Routledge 2006).

459 WAYNE PARSONS, AN INTRODUCTION TO THE THEORY AND PRACTICE OF POLICY ANALYSIS (Edward
Elgar Publishing Co. I995); See also DEBORAH STONE, POLICY PARADOX: THE ART OF POLITICAL
DECISION MAKING 10 (Rev. ed., Norton & Co, Inc. 2002) (I988).

125

analyzed, and then selected. After this process is complete, the policy is implemented and
its implementation is evaluated.460

Many scholars have identified shortcomings the policy cycle model in describing
the policy-making process, a process that is much more fluid than the model suggests.461
In practice, policy development is not linear, and does not progress in a methodical
manner through a well-defined process, almost as if on an assembly line.462 Instead, it
goes through a variety of stages and takes place at a number of different levels. Education
policy, in particular, is formed and re-fonned as it is being implemented by those
working at the ground level of implementation in the schools.463 And so any attempt to
break up the policy making process into steps is artificial. The steps cannot be reliably
distinguished from one another because policy making is a complex interactive process
without beginning or end, in part because implementation of one policy raises

unanticipated concerns that must be addressed.“

 

460 See generally Parsons, supra note 459, at 77-80; B. GUY PETERS, AMERICAN PUBLIC POLICY PROMISE

AND PERFORMANCE (5th ed., University Press, 1999); Stone, supra note 459, at 10-11.

461 Criticism of the model have been stated as follows:

0 “it does not provide any causal explanation of how policy moves from one stage to another;

0 it cannot be tested on an empirical basis;

0 it characterizes policy-making as essentially ‘top-down’, and fails to take account of ‘street-level’ and
other actors;

o the notion of a policy cycle ignores the real world of policy-making, which involves multiple levels of
government and interacting cycles;

0 it does not provide for an integrated View of the analysis of the policy process and analysis
(knowledge, information, research) which is used in the policy process.” Parsons, supra note 459, at
79-80.

462 Stone, supra note 459, at xi-xii.

463 Bell & Stevenson, supra note 458, at 8-9. Bell & Stevenson argue that the policy process passes

through a variety of stages and takes place at a number of different levels almost simultaneously. Policy

development is a continuous and and contested process in which those with competing values and
differential access to power seek to form and shape policy in their own interests. Even individuals who the
policy affects are able to shape it. Id. at 2. They criticize analysis of a formal policy document, such as the

text of a law, as being only a statement of intent, a plan of action, or a set of guidelines. Id. at 23.

464 CHARLES E. LINDBLOM & EDWARD J. WOODHOUSE, THE POLICY-MAKING PROCESS 10 (3rd ed.,

Prentice Hall 1993) (1968).

126

However, this model has proven to be a good heuristic tool through which to
explore the policy process465 because it identifies some important markers in it.466 In
addition, the actions taken by Congress and federal administrative agencies, such as the
U.S. Department of Education, can be easily identified by examining the documents they
publish. These actions fit into the identification, evaluation, and selection section of
policy options phase of the model. This phase occurs throughout the policy process,
including immediately after the initial identification of the problem, subsequent to any
action taken by Congress, and following implementation efforts by both the federal
administrative agency charged with administering the law and local implementation
efforts. Moreover, it is a method of examining policy that is frequently employed in the
field of administrative law.467

3.2.1.1.1 - The Development of Laws

The Role of Congress. An act of Congress represents a political decision made at
one point in time. It is generally seen as being something permanent and final. However,
the act is not designed to be the ultimate resolution of a problem. Most often the problem

continues, inside and outside of Congress, and new laws are proposed which reshape the

issues and ground rules of previously fought battles.468 Therefore, over time, laws rarely

 

465 Parsons, supra note 459, at 81.

466 Lindblom & Woodhouse, supra note 464, at 11. Lindblom and Woodhouse discuss the importance of
some of these conventional steps in the policy-making process, such as voting, elected functionaries,
bureaucratic policy making, and interest groups in their book, however, they recognize the limitations of
this type of analysis by arguing that understanding the relevant power relationships is really key to
producing better policy. Id.

467 See generally, KENNETH F. WARREN, ADMINISTRATIVE LAW IN THE POLITICAL SYSTEM (4th ed.,
Westview Press 2004).

468 EUGENE EIDENBERG & ROY D. MOREY, AN ACT OF CONGRESS: THE LEGISLATIVE PROCESS AND THE
MAKING OF EDUCATION POLICY 175 (WNW Norton & Co., Inc. 1969).

127

remain static. Instead, after their enactment, they are frequently modified. This has been
the case with both NCLB469 and IDEA.470

The Role of Administrative Agencies. While policy development is a recursive
process, administrative agencies play a specific and fairly well-defined on-going role in
it. Gary Bryner describes the importance of the role the agencies fulfill.

Administrative processes have become a central element in policy making. They
are a major source of legislative initiatives, a dominant force in the shaping of basic
policy decisions, and the primary mechanism for the implementation of public policies.
Delegation of broad, policy-making powers to administrative agencies has become one of
the most important characteristics of the modern U.S. administrative state."71

Agencies fill this role because laws are “neither self-explanatory nor self-
executing in any detailed sense.”472 The two key types of administrative discretion are the
authority to make legislative-like policy decisions and the authority to decide how
general policies apply to specific cases.473 This discretion can be exercised in the rule-
making process, in policy statements issued by an agency, in the approval process for
state plans to participate in federal programs, or in quasi-judicial proceedingsm This

analysis will examine the legislative rather than the judicial types of policy making,

 

469 NCLB is a reauthorization of the Elementary and Secondary Education Act, which was first passed in
1965.

470 IDEA is a reauthorization of the Education for All Handicapped Children Act, which was originally
enacted as a separate statute in 1975.

471 GARY C. BRYNER, BUREAUCRATIC DISCRETION: LAW AND POLICY IN FEDERAL REGULATORY
AGENCIES (Pergamon Press 1987).

472 STEPHEN K. BAILEY & EDITH K. MOSHER, ESEA: THE OFFICE OF EDUCATION ADMINISTERS A LAW 98
(Syracuse Univ. Press 1968).

473 Id.

474 See generally FLORENCE HEFFRON & NEIL MCFEELEY, THE ADMINISTRATIVE REGULATORY PROCESS
(Longman Inc. 1983).

128

specifically the rules promulgated and the informal policy documents that were issued
under NCLB relating to alternate assessments by the USDOE.

Rule-Making and Informal Policy Documents. Administrative agencies write
administrative rules using the authority delegated to them from Congress in the statutes
that authorize the agency’s existence and set their mission, goals and objectives.475 The
issuance of rules is governed by the Administrative Procedure Act.476 These rules are law
and carry same weight as congressional legislation, presidential executive orders, and
judicial decisions.477 In contrast, agency policy statements are informal pronouncements
of policy and therefore do not have the force of law.478

The use of administrative agencies such as the USDOE to promulgate rules that
interpret federal statutes arise for a number of reasons. Congress may deliberately write a
statute with vague language to facilitate compromise among competing interpretations so
that each side believes its interpretation will be adopted in the implementation process or
they may write an ambitious program into law that is beyond enactor’s competence,

leaving the details to be worked out by the administrative.479 Congress may also delegate

the task of developing the details of a law because it involves issues that are best resolved

 

475 CORNELIUS M. KERWIN, RULEMAKING: HOW GOVERNMENT AGENCIES WRITE LAW AND MAKE POLICY
(3rd ed., CQ Press 2003). The U.S. Department of Education was established in 1980 as an executive office
by the Department of Education Organization Act of 1979, Pub. L. No. 96-88, § 101, 93 Stat. 669. The U.S.
Secretary of Education, who directs the agency, is appointed by the President. 20 U.S.C. § 341 1. The U.S.
Secretary of Education is authorized to proscribe the rules and regulations necessary to administer and
manage the U.S. Department of Education. 20 U.S.C. § 3474.

476 The Administrative Procedures Act defines a “rule” as “the whole or part of an agency statement of
general or particular applicability and future effect designed to implement, interpret or prescribe law or
policy or describing the organization, procedure or practice requirements of an agency.” 5 U.S.C. §551(4).
477 Kerwin, supra note 475.

478 Heffron & McFeeley, supra note 474.

479 Lindblom & Woodhouse, supra note 464. Statutes that rely on federal spending clause authority may
be unconstitutional if they contain ambiguous provisions because states cannot be bound to conditions they
did not clearly understand that the time they agreed to participate in the law’s regulatory scheme.

129

utilizing the professional expertise of the agency.480 The development of agency rules
may also occur because of ambiguous or imprecise language in the statute or
contradictory statutory provisions that arise unintentionally through either legislative
haste or a lack of agreement among legislators.481 Moreover, as is the case with NLCB,
rules may be created to address problems with implementation of the law in the field.

Federal agencies may use rules to accomplish one of three essential functions: (1)
legislative/substantive rules where what the agencies write is essentially new law; (2)
interpretative rules where agencies explain how they interpret existing law and policy;
and (3) procedural rules that define the organization and processes of the agency.482

The rules issued by USDOE regarding alternate assessments are interpretive rules.
They are the vehicle for specifying how a statute will be put into effect.

3.2.2 — Equal Educational Opportunity

3.2.2.1 - Underlying Theoretical Constructs
3.2.2.1.] - Equality

“Equality” connotes a sameness or essential equivalence.483 In its strictest sense,

equality in education would call for parity of educational resources, access, and results.484

In practice, however, equality is combined with notions of justice, and it does not require

uniformity but it instead ensures that decisions about the allocation of resources like

 

480 Bryner, supra note 471.

481 Lindblom & Woodhouse, supra note 464.

482 Kerwin, supra note 475.

483 ANN BASTIAN, NORM FRUCHTER, MARILYN GITTELL, COLIN GREER, & KENNETH HASKINS, CHOOSING
EQUALITY: THE CASE FOR DEMOCRATIC SCHOOLING 28 (Temple Univ. Press 1986); Lawrence B. Joseph,
Some Ways of Thinking about Equality of Opportunity, 33(3) THE WESTERN POLITICAL QUARTERLY 393
(Sept. 1980).

484 THOMAS GREEN, EXCELLENCE, EQUITY, AND EQUALITY (Lee Shulman & Gary Sykes eds., Excellence,
equity, Longman 1983).

130

education are made consistent with the fundamental societal rules on the subject.485
Equality recognizes that human beings are different and calls for individuals to be
considered and treated as equals in the sense that particular kinds of inequalities are
eliminated, not that each person is treated identically in all circumstances.486
3.2.2.1.2 — Equal Opportunity
Equal opportunity embodies a concept of fundamental fairness, an absence of
discrimination or a barrier to access to a public good or benefit like education.487 It puts
into practice the paradox of equality that asserts all people are equal but recognizes the
fact that they really are not.488 In its most general sense, equality of opportunity usually
means that people should be enabled to acquire a public good or benefit, such as
education, on the basis of their natural abilities or actual achievement and not on the basis
of arbitrary factors such as race, religion, sex, social class origins, etc.489 Equal
opportunity is not typically conceived of in a strict egalitarian sense that would require
everyone to receive the same amount of any particular good or benefit in society.490
When thinking about equal opportunity, the characteristics of individuals can
usually grouped into two bundles: those over which individuals have control, such as
effort and choice, and those over which they do not, such as ability, race, gender, and

disability. It is the interaction of these two bundles that ultimately produce valuable life

outcomes such as income, vocation, social outcomes.

 

485 Mary Warnock, The Concept of Equality in Education, 1(1) OXFORD REVIEW OF EDUC. 3, 3 (1975).
486 Joseph, supra note 483, at 393.

487 Id.

488 William J. Smith & Charles Lusthaus, The Nexus of Equality and Quality in Education: A Framework
for Debate, 20(3) CANADIAN J. OF EDUC. 378, 379 (Summer, 1995).

489 Id. at 379.

490 KENNETH E. HOWE, UNDERSTANDING EQUAL EDUCATIONAL OPPORTUNITY: SOCIAL JUSTICE,
DEMOCRACY, AND SCHOOLING (Teachers College Press 1997).

131

A continuum of views exists on what equal opportunity requires.49’ The views are
based on beliefs about how society should allocate its scarce resources among individuals
with competing needs, i.e. their theory of distributive justice.492 At one end of the
continuum are forms of formal or procedural equality such as nondiscrimination and “fair
play” and at the other end are forms of substantive or compensatory equality such as the
elimination of disadvantages among individuals, ultimately concluding with the concept
of “fair shares” and equal results.493 Formal or procedural equality involves removing
external barriers to permit individuals who are qualified for a position in society to be
included in the pool of applicants for it, in other words, to compete in “life’s race” based
on their own individual merit as evidenced by their performance or achievement.494
Substantive or compensatory equality promotes the collective welfare of all members of
the community as its goal and supplies extra support for certain individuals during their
periods of formation, individuals with certain inherent disadvantages such as race, sex,

social class, and disability status, so that they may be able to compete for positions in

 

491 JOHN E. ROEMER, EQUALITY OF OPPORTUNITY 2 (Harvard University Press 1998)[hereinalter Roemer,
Equality of Opportunity]; Howe, supra note 490, at 15; Joseph, supra note 483, at 393.

492 Joseph, supra note 483; Howe, supra note 490; Roemer, Equality of Opportunity, supra note 491;
JOHN E. ROEMER, THEORIES OF DISTRIBUTIVE JUSTICE 1(Harvard Univ. Press 1996) [hereinafter Roemer,
Theories of Distributive Justice]. Howe identifies three main theories of distributive justice: libertarianism,
utilitarianism, and liberal egalitarianism. Libertarianism focuses on individual liberty as its core value and
calls for only minimal state interference through policy. It views the purpose of equal educational
opportunity to promote individuals’ ability to pursue the type of education they select. Actual results are
virtually irrelevant. Howe, supra note 490, at 23-24. Meritocratic utilitarianism’s vision of equal
educational opportunity as one that promotes economically valuable skills. Results are relevant but they do
not need to be equal because educational opportunity takes a back seat to maximizing economic
productivity. Id. at 25-26. Liberal egalitarianism calls for compensatory measures to be provided by the
government to make the competition of goods fairer to certain disadvantaged groups. Howe advocates for a
version of liberal-egalitarianism he calls participatory interpretation of equality of educational opportunity.
Id. at 31-32.

493 Nicholas C. Burbules, Brian T. Lord, & Ann L. Sherman, Equity, Equal Opportunity, and Education,
4(2) EDUC. EVALUATION AND POLICY ANALYSIS 169, 182-83 (Summer, 1982); Howe, supra note 490, at
15; Joseph, supra note 483, at 394; Roemer, Equality of Educational Opportunity, supra note 49], at 2;
Smith & Lusthaus, supra note 488, at 380.

494 Joseph, supra note 483, at 394; Roemer, Equality of Educational Opportunity, supra note 491, at 1;
Smith & Lusthaus, supra note 488 at 380.

132

society with others in the future based on their own ability and effort alone, not hampered
by the disadvantages with which they were born.495
3.2.2.1.3 — Equal Educational Opportunity
Our society regards education as a sufficiently important building block to be able
to live a good life that it sees it as a necessary component of equalizing opportunities in
this country."96 The U.S. Supreme Court in Brown v. Board of Education, explained it
this way:
Today, education is perhaps the most important function of state and local
governments. It is required in the performance of our most basic public
responsibilities, even service in the armed forces. It is the very foundation of good
citizenship. Today it is a principal instrument in awakening the child to cultural
values, in preparing him for later professional training, and in helping him to
adjust normally to his environment. In these days, it is doubtful that any child may
reasonably be expected to succeed in life if he is denied the opportunity of an

education. Such an opportunity, where the state has undertaken to provide it, is a
right which must be made available to all on equal tenns.497

Although it is apparent that education is valuable, it is not obvious what an equal
educational opportunity for all students looks like.

Since equality of opportunity exists on a continuum, equality of educational
opportunity does too. The position on the continuum depends on the level of government
intervention utilized to influence individuals’ educational outcomes.498 Through the
years, discussions of equal educational opportunity have focused on a basic dichotomy
between the equivalence of educational inputs, which are the raw materials of the
educational process, such as the right to attend public schools, per pupil expenditures,

physical facilities, library holdings, hours of operation, and quality of teachers, and of

 

495 Joseph, supra note 483, at 394; Roemer, Equality of Educational Opportunity, supra note 491, at 1;
Smith & Lusthaus, supra note 488, at 380.

496 Roemer, Equality of Educational Opportunity, supra note 491, at 5.

497 Brown V. Bd. of Educ. v. Topeka, 347 U.S. 483, 493 (1954).

498 Howe, supra note 490, at 20.

133

educational outputs, such as the level of academic achievement attained by students or
later life outcomes.499 More recent discussions have also included the concept of
throughputs, i.e. the educational practices of the schools themselves.500 This can involve
factors such as the content of curriculum and textbooks, how teachers treat students, and
perceptions the gender, race, ethnic background and disability status of students within
501

the schools.

3.2.2.2 — Equal Educational Opportunity in the U.S. Schools.

The conception of equal educational opportunity in the United States has evolved over
time changing from one that strove for equal access to a common educational experience to one
that promoted the opportunity for equal attainment of educational outcomes.502

3.2.2.2.1 — Common School Movement
In the initial stages of the common school movement, educational opportunity consisted
of a free education for children until their entry into the labor force, a common
curriculum for all children and children from diverse backgrounds in the same school.503

This focus on these equal inputs was intended to create a populace who had a common

experience and an equal opportunity to succeed academically in the schools. It

 

499 James S. Coleman, What is Meant by "an Equal Educational Opportunity"?, 1(1) OXFORD REIVEW OF
EDUC. 27, 27-28 (1975) [hereinafter Coleman, What is Meant by “an Equal Educational Opportunity ”?];
James S. Coleman & Kevin Marjoribanks, Equal Educational Opportunity: A Definition, 1(1) Oxford
Review of Educ. 25, 25 (1975); Howe, supra note 490, at 15;20-21; Smith & Lusthaus, supra note 488, at
380.

500 Smith & Lusthaus, supra note 488, at 380; JOEL SPRING, AMERICAN EDUCATION 106 (7th ed.,
McGraw-Hill, Inc. 1996).

501 Spring, supra note 500, at 106.

502 Shirley M. Clark, Changing Meanings of Equal Educational Opportunity, 25(1) THEORY INTO
PRACTICE 77 (Feb. I976); JAMES S. COLEMAN, EQUALITY AND ACHIEVEMENT IN EDUCATION 17 (Westview
Press 1990).

503 Clark, supra note 502, at 79.

134

understood that educational outcomes would be different based on the meritocratic ideal
that smarter students would be more successful in the classroom.504
3.2.2.2.2 — 1950s and Beyond

The second stage of equal educational opportunity as a goal in American
education introduced the assumption that equality of opportunity depends upon equality
in the effects, results, or output of schooling.505 Equality of outcomes charges schools
with the responsibility of educating all students to a level of proficiency that will allow
them to enter the competitive, meritocratic selection process of adult life equally well
prepared.506 Thus, the discussion shifted from one looking solely at the inputs of
education resources to the outputs or results of schooling.507 This shift was marked by the
landmark decision of Brown v. Board of Education and the Coleman Report on the status
of equal educational opportunity in the U.S.508 Brown declared that separate schools for
black and white students, even though they had equivalent inputs, were inherently
unequal and unconstitutional.509 The Coleman Report utilized a definition of “equality of
educational opportunity” that focused on equality of results given the same individual

input rather than one that measured educational inputs alone.510

 

504 ROBERT CHURCH & MICHAEL SEDLAK, EDUCATION IN THE UNITED STATES: AN lNTERPRETIVE
HISTORY 438 (Free Press 1976).

505 Clark, supra note 502, at 79; Church & Sedlak, supra note 504, at 453.

506 Church & Sedlak, supra note 504, at 453.

507 Coleman, What is Meant by “An Equal Educational Opportunity ”?, supra note 499, at 27.

508 Clark, supra note 502, at 79; Church & Sedlak, supra note 504, at 444-45; 451; JAMES E. COLEMAN,
EQUALITY OF EDUCATIONAL OPPORTUNITY (Nat’l Center for Educ. Statistics 1966); Brown V. Bd. of Educ
of Topeka, 247 U.S. 483 (1954).

509 Brown, 347 U.S. at 495.

510 Coleman, Equality of Educational Opportunity, supra note 508; Coleman & Marjoribanks, supra note
509.

135

3.2.2.2.3 - Equal Outcomes Conception of Equal Educational
Opportunity
The equal outcomes conception of equal education opportunity that took hold in

the 19503 and 1960s, continues today. Through the years it has been expressed in
compensatory education programs, like Head Start, ESEA, and IDEA. However,
although compensatory education programs fall under the broad umbrella of equal
results, there are variations in their underlying conception of equal educational
opportunity. There are numerous definitions of equal results: level the playing field,5 H
minimal achievement,5 '2 same progress,513 same results,5 '4 and full opportunity.5 '5 The
level the playing field view calls for extra assistance for individuals with certain
disadvantages during their periods of formation to enable them to compete for positions
in society in the future.516 Thus, equality of educational opportunity means that everyone
has an equal chance to receive an education but it does not necessarily guarantee life
outcomes or even an equal opportunity to compete in the labor market.517 Essentially it
allows for a random distribution of “resources, attainment, and educational achievement”
with respect to the educationally relevant variables of choice, ability or virtue, not
educationally irrelevant characteristics such as sex, race or geography.518 The minimal

achievement view requires the provision of sufficient resources to allow the attainment of

 

51 l Roemer, Equality of Educational Opportunity, supra note 491.

512 Burbules, Lord & Sherman, supra note 493, at 183 (authors argue that different versions of equal
results propose valuable social goals but they cannot be justified in terms of equal or equitable opportunity
because the assumption cannot be made that equitable opportunities will have egalitarian results); RICHARD
E. WISE, RICH SCHOOLS POOR SCHOOLS: THE PROMISE OF EQUAL EDUCATIONAL OPPORTUNITY 151 (Univ.
of Chicago Press 1968). Wise labels this “minimum-attainment.” Id.

513 Burbules, Lord & Sherman, supra note 493, at 182.

514 Id.

515 Wise, supra note 512, at 148.

516 Roemer, Equality of Educational Opportunity, supra note 491, at l. Compensatory education, such as
that provided through IDEA and ESEA, embodies a “level the playing field” philosophy.

517 Spring, supra note 500, at 107.

518 Green, supra note 484, at 325.

136

some minimum common level of achievement or standard of competence for all.519 The
some progress view calls for each person to make equal progress relative to their own
starting point.520 The same results view aims towards a strict equalization of outcomes for
some specified measure.5 21The full opportunity view would allow each person to be given
a full opportunity to develop his or her individual abilities,522 so ultimate results would
vary under this model.
3.3 - Equal Educational Opportunity for Students with Disabilities
3.3.1 - The Development of the Law 19603 to 1975
3.3.1.1 - History of the Development of Special Education — beginning
in the 1960s
A number of forces converged in the 19603 and 19703 to enhance the rights and
opportunities for students with disabilities. The stage was set by the 1954 Brown v. Board
of Education decision finding an equal protection clause violation in segregated schools
for black children. This propelled the civil rights movement and it was the civil rights
movement along with the War on Poverty that provided the framework for the change in

the status of disabled kids.523 Developments in the Cold War in the late 19503 also

 

519 Burbules, Lord & Sherman, supra note 493, at 183; Wise, supra note 512, at 151. This View is
consistent with the theory of educational adequacy that has taken hold in numerous state courts around the
country that requires a substantial equality of opportunity to achieve a high minimum quality education.
Regina R. Umpstead, Determining Adequacy: How Courts are Redefining State Responsibility for
Educational Finance, Goals, and Accountability, 2007(2) BYU EDUC. & L.J. 281, 305, 313 (2007).
520 Burbules, Lord & Sherman, supra note 493, at 183.

521 Burbules, Lord & Sherman, supra note 493, at 182. This View has been criticized as unachievable.
Coleman, What is meant by "an Equal Educational Opportunity ".7, supra note 499, at 28.

522 Wise, supra note 512, at 148.

523 DAVID CARLETON, STUDENT’S GUIDE TO LANDMARK CONGRESSIONAL LAWS ON EDUCATION 183
(Greenwood Press 2002); SCHOOL DAYS, RULE DAYS: THE LEGALIZATION AND REGULATION OF
EDUCATION 346 (David L. Kirp & Donald N. Jensen eds., The Falmer Press 1986).

137

provided motivation for an expanded federal role in education, and legislation passed
during this time addressed some issues of disability.524
During the progression of the Eisenhower, Kennedy, and Johnson administrations,
disability joined race and gender as conditions that needed — and demanded — equal
protection under the law.525 Robert Osgood identifies four key arenas which contributed
to enhanced rights and opportunities for students with disabilities: (1) a dramatic increase
in federal attention and resources devoted to disabilities; (2) state and federal court
decisions and legislation that firndamentally altered the expectations for public and
private entities to address the needs of individuals with disabilities; (3) the definition of
“disability” itself was redefined by medical, psychological, and educational
professionals; and (4) the rise of the Disability Rights Movement which consisted of
heightened activism by advocacy groups for disabled persons.526
Education of students with disabilities was transformed in the process, moving
from outright exclusion from the educational system527 and segregated placements for
those students who were included to greater integration into the general education
environment.528 Margret Winzer identifies three reasons for this transformation: (1) the
accumulation of empirical data on the effectiveness of special classes and concerns for

the identification of minority-group children; (2) a growth of empirical knowledge about

the learning of children in school and behavior problems that supported individualized

 

524 Carleton, supra note 523, at 109.

525 ROBERT L. OSGOOD, THE HISTORY OF SPECIAL EDUCATION: A STRUGGLE FOR EQUALITY 1N AMERICAN
PUBLIC SCHOOLS l01-102 (Praeger Publishers 2008).

526 Id. at 99-100.

527 Barbara Gaddy, Brian McNulty, and Tim Waters, The Reauthorization of the Individuals with
Disabilities Act: Moving Toward a More Unified System, MID-CONTINENT RESEARCH FOR EDUCATION AND
LEARNING 4 (April 2002), http://www.mcrel.org/PDF/PolicyBriefs/5022PI_PBReauthorizationIDEA.pdf.
528 MARGARET A. WINZER, THE HISTORY OF SPECIAL EDUCATION: F ROM ISOLATION TO INTEGRATION
(Galaudet Univ. Press 1993).

138

educational planning for each child rather than homogeneous diagnostic categories; and
(3) legislation and litigation.529 This article will focus on the legal aspects of this change.

3.3.1.2 — Early Legislation

Federal involvement in elementary and secondary education significantly
expanded in the late 19503. Driven by fears in the context of the Cold War and the Soviet
Union’s launch of Sputnik I, the first man-made satellite, Congress passed the National
Defense Education Act in 1958.530 This law sought to fully develop the “mental resources
and technical skills” of the nation’s youth by providing “additional and more adequate
educational opportunities” through loans to college students, financial assistance to states
to improve science, mathematics, and foreign language instruction, and graduate student
fellowships.S31 The first amendment to this act included the Education of the Mentally
Retarded Child Act, which provided grants to institutions of higher learning and state
educational agencies to encourage the expansion of teaching and training of leadership
personnel in the education of mentally retarded children.532 Five years later, in 1963,
Congress expanded this act to offer grants to train college teachers and researchers in a
broader array of disabilities.533

By the early 19603, domestic poverty became a national concern and education

was seen as a way to remedy it.”4 The Economic Opportunity Act of 1964535 was

designed to “eliminate the paradox of poverty in the midst of plenty in this Nation by

 

529 Id. at 381.

530 Carleton, supra note 523, at 109.

531 National Defense Education Act, Law of Sept. 2, 1958, Title I § 101, I958, 72 Stat. 1581 (repealed
I970).

532 Law of Sept. 6, 1958, Pub. L. No. 85-926, 72 Stat. 1777 (repealed 1970).

533 Pub. L. No. 88-104.

534 LEE W. ANDERSON, CONGRESS AND THE CLASSROOM: F ROM THE COLD WAR T0 “N0 CHILD LEFT
BEHIND 62 (Pennsylvania State Univ. Press, 2007).

535 Pub.L. 88-452, 78 & 508 (codified as amended at 42 U.S.C. § 2701).

139

opening to everyone the opportunity for education and training, the opportunity to work,
and the opportunity to live in decency and dignity.”536 In addition to a youth job corps,
work training program, and work-study programs, the community action provisions of
this law were used to develop the Head Start programs” That same year, Congress also
passed the 1964 Civil Rights Act,538 which outlawed discrimination in all programs that
accepted federal aid.

The Elementary and Secondary Education Act,539 enacted in 1965, was promoted
as an educational contribution to both the federal civil rights movement and the War on
Poverty.540 It was designed to expand and improve the educational programs of the
nation’s elementary and secondary schools that met the Special educational needs of
children from low-income families.541 ESEA created significant level of federal
involvement in K-12 education by providing almost $1 billion under Title I to support the
schooling of educationally disadvantaged children.542 ESEA was a categorical rather than
a general aid program, having a funding formula under Title 1 of the act that tied federal
financial support to the number of children from impoverished families in each school
district, directing more aid to districts with higher concentrations of low-income
families.543 States were directed to use federal funds to support programs of “sufficient

size, scope, and quality to give reasonable promise of substantial progress” towards

 

536 Id. at § 2.

537 Carleton, supra note 523, at 128-29.

538 Law ofJuly 2, 1964, Pub. L. 88-352, 78 S_taL 241.

539 Law of April 11, 1965, Pub.L. 89-10, 79 Stat. 27.

540 Anderson, supra note 534, at 502; CANDACE CORTIELLA, NCLB AND IDEA: WHAT PARENTS OF
STUDENTS WITH DISABILITIES NEED To KNOW & DO, (National Center on Educational Outcomes 2006),
http://cedhumn.edu/NCEO/OnlinePubs/Parents.pdf.

541 Pub. L. 89-10, 79 Stat. 27 § 201.

542 Anderson, supra note 534, at 63.

543 Pub. L. 89-10, 79 Stat. 27 § 203(a)(2)); Anderson, supra note 534, at 63; Eidenberg & Morey, supra
note 468, at 79.

 

140

meeting the needs of these educationally deprived children.544 Even in its original form,
ESEA called for measuring the educational achievement of the beneficiaries of Title 1
projects.545

Congress used ESEA to address the issue of educating handicapped children. In
its first amendment to the act in 1966, ESEA’S Title VI offered grants for the education
of handicapped children through preschool, elementary, and secondary school
programs.546 This program was revised in both 1970 and 1974. The 1970 amendments to
ESEA gave the provisions the title of the Education of the Handicapped Act.547 The 1974
ESEA amendments used the same name and included most of the same components as
were in earlier versions of the law. One significant change, however, was that the law’s
purpose was amended to promote “full educational opportunities to all handicapped
children548 rather than just assisting with funding for school programs for these
students. 549

In 1975, The Education for all Handicapped Children Act of 1975 was passed as a
separate act. Although it modified the earlier versions of the Education of the
Handicapped Act, it greatly expanded the scope of the rights to students and parents

offered and the responsibilities of the states who received funding under the law.550 Its

 

544 Pub. L. 89-10, 79 Stat. 27 § 205(a)(1).

545 Bailey & Mosher, supra note 472, at 51; “[T]hat effective procedures, including provision for
appropriate objective measurements of educational achievement, will be adopted for evaluating at least
annually the effectiveness of the programs in meeting the special educational needs of educationally
deprived children.” §205(a)(5).

546 Elementary and Secondary Education Act, Pub. L. 89-750, 80 Stat 1191, 1204-1208 (1966).

547 Elementary and Secondary Education Act, Pub. L. 91-230, 84 Stat.175-188 (1970).

548 Elementary and Secondary Education Act, Pub. L. 93-3 80, 88 Stat. 579-585 (1974).

549 Elementary and Secondary Education Act, Pub. L. 91-230 § 611(a), 84 Stat. 175-1 88. (1970).

550 Education for all Handicapped Children Act, Pub. L. 94-142, 89 Stat. 773 (1975). “It is the purpose of
this Act to assure that all handicapped children have available to them a free appropriate public
education which emphasizes special education and related services designed to meet their unique needs, to
assure that the rights of handicapped children and their parents or guardians are protected, to assist States

141

key provisions included a child find and zero reject policy, which required that all
handicapped children be identified, evaluated, and offered educational services.551 These
special education and related services552 were to be based on the unique needs of each
child as embodied in their individualized education program that had a statement of the
child’s current level of educational performance, specific annual goals, and the services
that would be provided to the child.553 A least restrictive environment mandate required
that the education should take place, to the maximum extent appropriate, in classes with
non-handicapped peers.554 In addition, due process and procedural safeguards were
included for the parents of handicapped children.555

3.3.1.3 - Equal Educational Opportunity and the U.S. Supreme Court

The parameters of equal educational opportunity for students with disabilities in
this country were also established through several federal court decisions responding to
challenges to the opportunities provided to students in the public education system
brought under the equal protection clause and the due process clause of the U.S.
Constitution.

The Equal Protection Clause of the Fourteenth Amendment provides that “[no]
State shall deprive any person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal protection of the laws.” This
guarantee has been examined in the context of specific groups of children’s rights to

equal educational opportunity: African Americans, children of illegal aliens, and poor

 

and localities to provide for the education of all handicapped children, and to assess and assure the
effectiveness of efforts to educate handicapped children.” PL 94-142 §3(c).

551 §612(2)(C).

552 § 4(a).

553 §4(a)(19).

554 Id.

555 § 615.

142

children. What has emerged from these court decisions is the idea that although education
is perhaps one of the most important state functions, its provision is not a fundamental
right under the U.S. Constitution. Therefore, a State must only have a sufficient rational
basis for a law that furthers a substantial state goal that affects a group of children’s
access to a benefit.

In Brown v. Board of Education,5 5 6 the segregation of Afiican American children
in separate schools, even though the physical facilities and other tangible factors were
equal, was found to violate the equal protection clause because education is an important
state and local function, 557and its provision by the state in public schools is a right which
must be made available to all on equal terms to all.558 Separate educational facilities are
inherently unequal559 because of intangible factors such as the psychological impact on
African American kids who may feel inferior because of the separation.560 An equal
protection violation was found in the case of the denial of all educational services to the
children of illegal aliens in Plyler v. Doe.561 The Court reasoned that the state lacked a
sufficient rational basis for discrimination against the children of illegal aliens because
they had no control over their legal status and denying them the benefit of public
education would impose a lifetime of hardship on these children. In contrast, no equal
protection violation was found in San Antonio Independent School District v.

Rodriguez,562 where school funding was based on district wealth because the state’s

 

556 347 U.S. 483 (1954).
557 Id. at 493.

558 Id.

559 Id. at 495.

560 Id. at 494.

561 457 U.S. 202 (I982).
562 411 U.S. I (1973).

143

action had a rational relationship to the legitimate state purpose of encouraging local
participation and control of schools through local district taxation.

3.3.1.4 - Early Federal Court Decisions related to Special Education

The denial of equal protection to children with disabilities has not been addressed
by the U.S. Supreme Court. Instead, the components of the 1975 Education for all
Handicapped Children Act were taken, in large part, from two federal cases from the
early 19703 that challenged the exclusion of handicapped students from the public

schools on equal protection grounds.563

Pennsylvania Association for Retarded Children (PARC) v. Pennsylvania,564 was
a class action lawsuit that sought to end the denial of educational services to mentally
retarded children within the Commonwealth. Pennsylvania had several sections of its
school code that were being used by school officials to deny retarded children access to
the public education system. Schools were able to refuse to accept or retain students: who
had not attained a mental age of five years old;"'65 who were not within the eight to
seventeen year old age range of the compulsory attendance laws;566 and who were
deemed unable to benefit from schooling.567

The Court entered a consent decree that recognized a legal right to education for
retarded children in Pennsylvania and prevented the Commonwealth from applying its

school code provisions in a manner that postponed, terminated or denied any mentally

retarded child access to a public education. Access to a free public program of education

 

563 Andrea Blau, The IDEIA and the Right to an “Appropriate " Education, 2007 BYU Educ. & L.J. l, 8
(2007); Judith Welch Wegner, Variations on a Theme. The Concept of Equal Educational Opportunity and
Programming Decisions under the Education for All Handicapped Children Act of 1975, 48(1) Law and
Contemporary Problems 169, 171-72 (Winter, 1985).

564 334 F. Supp. 1257 (ED. Penn. 1971).

565 Id. at 1260.

566 Id. at 1261.

567 Id. at 1262.

144

and training appropriate to his learning capacities was guaranteed to every retarded
person between the ages of six and twenty.568 The decree also provided for “due process”
notice and an opportunity for a hearing before a child’s admission to school could be
postponed.

In the case of Mills v. Board of Education of the District of Columbia,5 69 plaintiffs
brought a class action challenging the exclusion of “exceptional” children570 from the
District of Columbia’s public schools. Plaintiffs in this case estimated that 18,000 out of
22,000 “exceptional” children were not being served.5 71 In its defense, the Board of
Education argued that it was much too costly for them to educate all children.572 The
court held that the District of Columbia was required by the U.S. Constitution, the
District of Columbia Code, and the Board of Education regulations to provide a publicly-
supported education to these “exceptional” children.573

The court found that the District of Columbia must provide each school aged
child a free and suitable publicly-supported education regardless of the degree of the
child’s mental, physical or emotional disability or impairment.574 This education must be
suited to the child’s individual needs.575 In addition, a child cannot be excluded from a
regular public school assignment unless the child was provided with adequate alternative
educational services suited to the child’s needs, and a constitutionally adequate prior

hearing and periodic review of the child’s status, progress, and the adequacy of any

 

568 Id. at 1258.

569 348 F. Supp. 866 (DC. Cir. 1972).

570 Exceptional children includes those who are mentally retarded, emotionally disturbed, blind, deaf, and
speech or learning disabled. Mills, 348 F. Supp. at 868.

571 Id. at 868.

572 Id at 876.

573 Id

574 1d at 878.

575 Id

145

educational alternative.576 Moreover, “exceptional” children must be afforded due
process protections that include notifying their parents of any proposed placement,
transfer or denial and the right to a hearing before a hearing officer.577
3.3.2 — Educational Opportunity for Students with Disabilities: The Adopted
Standard

3.3.2.1 — The Education for All Handicapped Children Act of 1975
Within a few years of the PARCW and Mills579 decisions, Congress passed the

Education for all Handicapped Children Act of 1975 (EHA), which set a goal of
providing “full educational opportunity” to all handicapped children580 This goal was to
be met by providing a “free appropriate public education (FAPE) to all handicapped

children within a state between the ages of three and twenty-one581 which emphasizes

”584

special education582 and related services583 designed to meet their unique needs in the

least restrictive environment.585

 

57 6 Id

577 Id at 880.

578 PARC, 334 F. Supp. 1257 (ED. Penn. 1971).

579 Mills, 348 F. Supp. 866 (DC. Cir. 1972).

580 Education for all Handicapped Children Act, Pub. L. 94-142, § 612(2)(A), 89 Stat. 773 (1975.)
Handicapped children includes those who are “mentally retarded, hard of hearing, deaf, speech impaired,
visually handicapped, seriously emotionally disturbed, orthopedically impaired, or other health impaired
children or children with specific learning disabilities who by reason thereof require special education and
related services.” §4(a)(1).

581 § 612(2)(B).

582 Special education means “specially designed instruction, at no cost to the parents or guardians, to meet
the unique needs of a handicapped child, including classroom instruction, instruction in physical education,
home instruction, and instruction in hospitals and institutions.” § 4(a)(16).

583 Related services means “transportation, and such developmental, corrective, and other supportive
services (including speech pathology and audiology, psychological services, physical and occupational
therapy, recreation, and medical and counseling services, except that such medical services shall be for
diagnostic and evaluation purposes only) as may be required to assist a handicapped child to benefit from
special education, and includes the early identification and assessment of handicapping conditions in
children.” § 4(a)(l7).

584 Education for all Handicapped Children Act, Pub. L. 94-142, § 3(c), 89 Stat. 773 (1975).

585 The State has established procedures to assure that, to the maximum extent appropriate,
handicapped children are educated with children who are not handicapped, and that special classes,
separate schooling, or other removal of handicapped children from the regular educational environment

146

To assure that handicapped students receive FAPE, EHA required school districts
to provide an individualized education program (IEP) for each handicapped child. This
written statement includes the child’s present levels of educational performance, annual
goals and short-terrn instructional objectives, a description of the educational services the
child will receive, the extent to which the child will be able to participate in regular
education programs, and the criteria and evaluation procedures for determining whether
the student’s instructional objectives are being achieved.586 The IEP is to be formulated in
a meeting with a representative of the local educational agency, the child’s teacher, the
child’s parents or guardian, and if appropriate, the child Should also be included.587

In addition, EHA established a series of procedural safeguards designed to ensure
that the parents or guardian are both notified of decisions affecting their child and given
an opportunity to object to those decisions in the form of the ability to review relevant
records, prior written notice of a proposed change or a refusal to change a child’s status
or placement, and to file complaints on any issues related to these matters.588

The vision of educational opportunity that handicapped students were required to
be afforded under the law was articulated primarily in EHA’s FAPE definition.

The term ‘free appropriate public education’ means special education and related
services which (A) have been provided at public expense, under public supervision and
direction, and without charge, (B) meet the standards of the State educational agency, (C)

include an appropriate preschool, elementary, or secondary school education in the State

 

occurs only when the nature or severity of the handicap is such that education in regular classes with the
use of supplementary aids and services cannot be achieved satisfactorily § 612(5)(B).

586 § 4(a)(l9).

587 Id

588 § 615.

147

involved, and (D) are provided in conformity with the individualized education program

required under section 614(a)(5),539

Although this definition had an outline of the services required to be supplied, it
did not clearly identify the law’s vision of equal educational opportunity beyond the basic
free, public and appropriate characteristics. Therefore, the responsibility fell to the courts
to delineate its contours.
3.3.2.2 - Initial Interpretations of Equal Educational Opportunity by
the Law’s Sponsors and the Courts after the Passage of EHA
At the time of EHA’S passage, hopes ran high for an expansive interpretation of
the educational opportunity provided to handicapped students under the law. The
sponsors and early commentators anticipated that the law would have radical social
consequences.”0 Initial interpretations by the courts were consistent with this idea, with
many applying a “commensurate opportunity” definition of the “appropriate” education
required by the act that required districts to give students the opportunity to achieve their
full potential commensurate with the opportunity offered to their non-handicapped
peers.591
3.3.2.3 — The US Supreme Court interprets EHA and its Equal
Educational Opportunity requirements: A Focus on FAPE
The U.S. Supreme Court addressed the issue in its 1982 decision in the case of

Board of Education of the Hendrick Hudson Central School District v. Rowley.592 Amy

Rowley was a deaf kindergarten student whose parents wanted the school to provide a

 

589 Education for all Handicapped Children Act, Pub. L. 94-142, §4(a)(18), 89 Stat. 773 (1975).
590 Mark C. Weber, Transformation of the Education of the Handicapped Act: A Study in the
Interpretation of Radical Statutes, 25 U.C. DAVIS L. REV. 349, 366 (1990).

59] Id. at 366.

592 458 U.S. 176 (1982).

148

sign language interpreter in all of her academic classes. The majority opinion, written by
Justice Rehnquist, proceeded under a two-step inquiry: first, whether the state has
complied with the law’s procedural requirements and second, whether. the IEP is
“reasonably calculated to enable the child to receive educational benefits.”593 The court
found that the services provided to Amy by the school district, which included an FM
hearing aid to be used to assist her in the regular classroom, in addition to services from a
tutor and a speech therapist, rather than an in-class sign language interpreter, were
personalized instruction and related services calculated to meet her educational needs. In
reaching this conclusion, the court relied on two key academic indicators: passing marks
in school and advancement from grade to grade.594 Since Amy performed better than the
average child in her class and was advancing easily from grade to grade, she was
receiving an adequate education, one that conformed to the FAPE requirements.595
The “some educational benefit” standard of F APE emerged from the majority
opinion in this decision.596 The court explained that the EHA required a “basic floor of
opportunity”597 that consists of educational instruction specially designed to meet the

unique needs of the handicapped child and are supported by services that are necessary to

permit the child to benefit educationally.598 This education must be provided at the public

 

593 Id at 21 1-12.

594 Id at 204.

595 Id at 210-1 1.

596 Id at 200. Writing in 1985, Judith Welch Wegner identified the three possible Visions of equal
educational opportunity advocated for by justices in each portion of the decision: the majority, the
concurrence, and the dissent. She labeled them “some benefit,” “equivalent opportunity,” and “equalized
opportunity.” Wegner, supra note 563, at 175, 183. She describes the some benefit standard as “assur[ing]
students of receiving resources needed to make some incremental progress toward their educational goals,
without guaranteeing the means necessary to the actual achievement of those goals.” Id

597 Id at 201.

598 Rowley, 458 U.S. at 188-89.

149

expense, meet the state’s educational standards, approximate the grade levels used in the
state’s regular education, and comport with the child’s IEP.599

In reaching this decision, the majority’s opinion emphasized EHA’S legislative
history and its numerous references to the millions of handicapped children who were
being excluded from the public education system.600 It clarified that the EHA does not
require the same educational outcome for all students.601 Rather, the child’s progress
must be viewed in light of the limitations imposed by the disability. Since a wide
spectrum of handicapped children exists, the benefits they receive from their education
should also be expected to fall along a spectrum where the educational results will differ
dramatically among children.602 Moreover, the educational services do not need to
“maximize each child’s potential” or “achieve strict equality of educational services.”603

Justice Blackmun’s concurrence, while reaching the same conclusion that the
child’s individualized education program was sufficient under the EHA, advocated for a
different standard against which to measure whether a free appropriate public education
was being provided.604 He called for the court to consider whether the educational

program, when viewed as a whole, offered the child an educational opportunity through

which she could understand and participate in the classroom in a manner that was

 

599 Id at 203.

600 Id at 189.

601 Id at 192.

602 Id at 202.

603 Id at 198.

604 Wegner calls Justice Blackman’s opinion the “equivalent opportunity” standard. It requires a
comparison of both the tangible and the intangible educational inputs such as services, programs and
facilities provided to handicapped and non-handicapped children to determine if the educational program
offers the child an opportunity to understand and participate in the classroom substantially equivalent to her
nonhandicapped peers. This inquiry would involve a balancing of the opportunity afforded the handicapped
child against the resources available. Wegner, supra note 563, at 175, 184, I92.

150

“substantially equal” to that of her nonhandicapped peers.605 This measure considers
equal access to the educational process, not to any particular educational outcome.606

Justice White’s dissent argued that since the purpose to provide a “full
educational opportunity to all handicapped children,”607 the FAPE standard the court
should apply should be to “eliminate the effects of the handicap” so that the child will be
given “an equal opportunity to learn if that is reasonably possible.”608 He concluded that
because without a sign-language interpreter Amy was able to comprehend less than half
of what is said in the classroom, she did not receive F APE as required under the law.(’09
3.4 - Federal Education Policy Under IDEA and NCLB

This section outlines education policy as articulated in both IDEA and NCLB. It
lays out the relevant laws’ provisions and examines their views of equal educational
opportunity using the equal outcomes conceptual framework of level the playing field,
minimal achievement, some progress, same results, and full opportunity. For IDEA, it
also includes an educational opportunity discussion utilizing Rowley’s educational benefit
standard It then explains the ongoing NCLB special education debate, a controversy that

focuses on the laws’ accountability provisions and their advisability for students with

disabilities.

 

605 Rowley, 458 U.S. at 211 (Blackman, J., concurring).

606 Id

607 Rowley, 458 U.S. at 213 (White, J. dissenting).

608 Id at 215. Wegner labeled this vision, “equalized” educational opportunity because it would offer a
handicapped student “whatever services are needed to minimize the effects of his handicapping condition
to allow him to benefit as nearly as possible from the same educational opportunities as his
nonhandicapped peers.” This determination would involve a comparison of the possible educational
techniques or programs available to assist the child. Wegner, supra note 563, at 176, 185, 193.

609 Id

151

3.4.1 — IDEA as Special Education Law and Policy: Its Provisions,

Accountability Requirements, and Conceptions of Equal Educational

Opportunity

3.4.1.1 — The Pre-l997 IDEA era

The Education for All Handicapped Students Act (EHA) has been reauthorized
through the years and today it is known as the Individuals with Disabilities Education Act
(IDEA).610 Special education policy under the IDEA has traditionally differed from
general education in two significant ways: (1) the focus in special education has been on
compliance with the procedures and requirements set forth in IDEA and (2)
accountability for individual student performance has been “individualized, private, and
based on the individualized education program (IEP) review process,” not benchmarked
against educational standards and assessed through standardized testing and publicly
reported.“

Students with disabilities have not generally participated in standardized testing.
Their exclusion was motivated by several factors: (1) schools were not legally required to
include them; (2) schools wanted to achieve the highest test scores possible; (3) teachers
and parents desired to protect students from the stress of testing; (4) schools did not offer
many accommodations to allow students with disabilities to take the tests.612 A
combination of the personalized rights offered under IDEA to students with disabilities

and their general exclusion from standardized testing essentially established a dual

 

610 The name of the statute was changed in the 1990 revision. PUB. L. NO. 101:476, 104 Stat. 1103
(codified as amended at 20 U.S.C. §§ 1400-1482 (2000 & Supp. 2008).

61 1 Margaret J. McLaughlin and Martha Thurlow, Educational Accountability and Students with
Disabilities: Issues and Challenges, 17 EDUCATIONAL POLICY 431,435-36 (2003).

612 NATIONAL TRANSITION NETWORK, Education Reform: What does it Mean for Students with

Disabilities? (Sept. 1999), ht_tp://ici2.umn.edu/ntn/pub/briefs/edre.html.

152

system of education in the U.S.: one group system for regular, general education students,

and another individualized system for special education students.613

3.4.1.2 — IDEA 1997

Today IDEA continues to provide students with disabilities614 between the ages of

three and twenty-one“5 with the basic guarantees introduced by EHA of a free

appropriate public education616 emphasizing special education“7 and related services6l8

designed to meet their unique needs,619 delivered in the least restrictive environment”20 as

articulated in each student’s individualized education program (IEP).”Z'

Providing firll educational opportunity to all children with disabilities remains one

622 and its basic statement of purpose has been expanded to

of the law’s primary goals,
clarify that the law is designed to prepare students with disabilities for further education,

employment, and independent living.623 This shift from access to education to higher

 

613 See generally Barbara Gaddy, Brian McNulty, and Tim Waters, supra note 527, at 4 (April 2002).
614 The definition of a “child with a disability” has expanded over the years. The current decision is as
follows: “a child with mental retardation, hearing impairments (including deafness), speech or language
impairments, Visual impairments (including blindness), serious emotional disturbance, orthopedic
impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities and
who, by reason thereof, needs special education and related services. 20 U.S.C. § 1401(3).

615 20 U.S.C. § 1412(a)((1).

616 20 U.S.C. § 1414(a)(4).

617 “Special education” means “specially designed instruction, at no cost to parents, to meet the unique
needs of a child with a disability. 20 U.S.C. § 1401(29) (2000).

618 “The term ‘related services’ means transportation, and such developmental, corrective, and other
supportive services (including speech-language pathology and audiology services, interpreting services,
psychological services, physical and occupational therapy, recreation, including therapeutic recreation,
social work services, school nurse services designed to enable a child with a disability to receive a free
appropriate public education as described in the individualized education program of the child, counseling
services, including rehabilitation counseling, orientation and mobility services, and medical services,
except that such medical services shall be for diagnostic and evaluation purposes only) as may be required
to assist a child with a disability to benefit from special education, and includes the early identification and
assessment of disabling conditions in children.” 20 U.S.C. § 1401(26).

619 20 U.S.C. § 1400(d).

620 20 U.S.C. § 1414(a)(5).

621 20 U.S.C. § 1414(d).

622 20 U.S.C. § 1412(a)(2) (2000).

623 20 U.S.C. § 1400(d).

153

expectations for student performance began with the 1997 revisions to the law624 and

4.626 One significant

continues in its latest version, 625 which was reauthorized in 200
finding in the 1997 version of the act was the fact that achievement of the law’s
objectives had been impeded by “low expectations” and that research demonstrates
having higher expectations for children with disabilities and ensuring “access in the
general curriculum to the maximum extent possible” was likely to make it more
effective.627 In light of this, IDEA has retained its status as a civil rights law, one which
works to ensure equal educational opportunity to students with disabilities.628
IDEA 1997 accomplished a considerable shift in special education accountability
policy by requiring both a higher level of educational achievement and the measurement
of this attainment through general state and district assessment programs.629 IDEA 1997
called for enhanced expectations for students with disabilities to be reflected in the

630 and special education and related services63 ’ provided to

academic and functional goals
students in their IEPs with an overall goal of allowing them to “make progress” in the

general curriculum.632 Schools and states were to be held accountable for students with

 

624 PUB. L. No. 105-17, § 687(c)(3)-(5), 111 Stat. 37 (codified as amended at 20 U.S.C. § 1400(c)(3)-(5)
(2000 & Supp. 2008)).

625 20 U.S.C. § 1400(c)(3)-(5).

626 PUB. L. NO. 108-446, 118 Stat. 2738 (codified at 20 U.S.C. §§ 1400—1482 (2000 & Supp. 2008)).
627 PUB. L. No. 105-17, § 687(c)(3)-(5), 111 Stat. 37 (codified as amended at 20 U.S.C. § l400(c)(4)-(5)
(2000 & 2008)).

628 H. Rutherford TumBull Ill, Individuals with Disabilities Education Act Reauthorization:
Accountability and Personal Responsibility, 26 REMEDIAL AND SPECIAL EDUCATION 320, 322 (2005).
Tumbull identifies six key principles that identify IDEA as civil rights legislation: zero rejection,
nondiscriminatory evaluation, appropriate education, least restrictive environment, procedural due process,
and parent participation because they reflect the core constitutional principles of life, liberty, and equality
and the ethical principles of dignity, family as a foundation, and community. Id at 322-23.

629 Gaddy, McNulty, & Waters, supra note 527, at 4.

630 20 U.S.C. § l414(d)(1)(A)(ii)(1997), amended by 20 U.S.C. § 1414(d)( 1)(A)(i)(11) (2004).

631 20 U.S.C. § 14l4(d)(1)(A)(iii) (1997), amended by 20 U.S.C. § 1414(d)(1)(A)(i)(IV) (2004).

632 20 U.S.C. § 14l4(d)(1)(A)(i)-(iii) (1997), amended by 20 U.S.C. § l414(d)(1)(1-IV) (2004).

154

disabilities’ learning by setting high performance goals and indicators for them,633

including them in the regular local and state assessments634 or in alternate assessments if
they were not able to take the general assessments,635 and reporting their performance in
the same manner as nondisabled students.(’36 These changes created greater alignment
between the accountability systems for students with disabilities and general education
students.637 In addition, with these changes, IDEA 1997 implicitly defined participation
in local and state assessments as conferring an educational benefit on students with
disabilities.638 Moreover, it shifted IDEA’s accountability scheme from one best
characterized as legal compliance with the procedures contained in the law and the
student’s IEP to one of educational accountability that publicly reports aggregate student
performance in relation to a common educational standard.639
This change in the accountability system for students with disabilities under
IDEA was reflective of broader changes in the overall general education accountability
climate nationwide. Two dominate features of state accountability in place at the time
were (1) a focus on student academic performance demonstrated by assessments and (2)
consequences, through public reporting or rewards and/or sanctions, for failing to attain

specific levels of performance.640

 

633 20 U.S.C. § 1412(a)(l6)(A)(i)-(ii) (1997), amended by 20 U.S.C. § 1412(a)(15)(A)(i)-(iv) (2004).

634 “Children with disabilities are included in general State and district-wide assessment programs, with
appropriate accommodations, where necessary.” 20 U.S.C. § 1412(a)(17)(A) (1997), amended by 20 U.S.C.
§ 1412(a)(l6)(A) (2004).

635 20 U.S.C. § 1412(a)(17)(A)(ii) (1997), amended by 20 U.S.C. § 1412(a)( 16)(B) (2004); McLaughlin &
Thurlow, supra note 611, at 438.

636 “The State educational agency reports to the public the number of children with disabilities
participating in regular assessments [and] alternate assessments ...[and] [t]the performance of those
children on regular assessments and on alternate assessments 20 U.S.C. § ‘l412(a)(l7)(B)(i)-(iii) (1997)
amended by 20 U.S.C. § 1412(a)(l6)(D) (2004).

637 McLaughlin & Thurlow, supra note 611, at 438.

638 Id

639 Id at 435-36.

640 Id at 433-34.

155

3.4.1.3 - Equal Educational Opportunity Standards

This article views equal educational opportunity from two vantage points. The
first applies the equal outcomes conceptions of level the playing field, minimal
achievement, some progress, same results, and full opportunity. The second uses the
Rowley standard to interpret the type of educational opportunity or benefit students must
be provided. This section examines the similarities and differences in the law in its recent
revisions from the initial language used by the Rowley court to set the some benefit
standard. It then lays out how courts have construed the test into three views: some
benefit, meaningful benefit, and mixed.

3.4.1.3.1 — Equal Outcome Conception of Educational
Opportunity: Level-the-Playing Field

The version of equal educational opportunity envisioned by pre-1997 IDEA was
one best characterized as level the playing field. It was intended to provide extra
assistance for students with disabilities during their youth, through special education and
related services, to help them achieve their personal educational goals that were outlined
in their IEP. IEP goals were generally set at a level that was less rigorous than those for
the non-disabled student population and so although IDEA did not attempt guarantee a
particular life or educational outcome, it did better equip students with disabilities to
function in society.”‘“

IDEA 1997 attempted to remedy the problem of low academic expectations for

students with disabilities by replacing them with higher performance expectations by

 

641 See Green, supra note 484, at 325; Roemer, Equality of Opportunity, supra note 491 at 1; Spring, supra
note 500, at 107.

156

requiring IEP goals that permitted the child to make progress in the general curriculum,642

advance toward meeting these goals643 and participate in standardized assessmentsf’44
IDEA 1997 also introduced a new form of accountability for student performance
through the required reporting of student test scores.645 Using this instrument the public is
able to know the test scores of students with disabilities who participate in the regular and
alternate assessments, but the reporting provides only information, not a mechanism to
address any discrepancies in their performance. Parents of students with disabilities are
the ones who have the right under IDEA to bring a due process complaint if for any
reason the district is not providing F APE to their child.646

These changes moved IDEA 1997 further down the equal educational opportunity
continuum towards the minimal achievement view, one that would require schools to
educate all students to a common level of academic performance.647 However, IDEA
1997 still promotes a level the playing field approach to equal educational opportunity
because it does not require the same level of academic performance for all students, even
though students with disabilities must be included and make progress in the school’s
general curriculum and the state’s assessment system. It allows for variable goals and
achievement by setting state performance goals for students with disabilities that are

consistent with the goals and standards for all children, to the maximum extent

 

642 20 U.S.C. § l414(d)(1)(A)(ii) (1997), amended by § 1414(d)(1)(A)(i)(II) (2004) (2000 & Supp. 2008).
643 20 U.S.C. § l414(d)(1)(A)(iii)(I) (1997), amended by § 1414(d)(1)(A)(i)(IV) (2004) (2000 & Supp.
2008)

644 This section assumes the student will participate in the general assessments but provides the IEP team
the option to not including the child by explaining why the assessment is not appropriate. 20 U.S.C. §
l414(d)(1)(A)(v) (1997), amended by § 14l4(d)(l)(A)(i)(VI)(aa)&(bb) (2004) (2000 & Supp. 2008).

645 20 U.S.C. § 1412(a)(17)(A) (1997), amended by 20 U.S.C. § 1412(a)(l6)(A) (2004) (Supp. 2008).
646 20 U.S.C. § 1415(b)(6) (1997).

647 See Burbules, Lord & Sherman, supra note 493, at 183; Wise, supra note 512, at 151.

157

appropriate,648 and by permitting IEP teams to exempt an unlimited number of children
from the general assessments as long as an explanation is provided.649
3.4.1.3.2 — Applying Rowley’s Conceptions of Educational
Opportunity
In the more than thirty years that have elapsed since the Education for All
Handicapped Children Act of 1975 was enacted and the twenty—five years since the
Rowley decision, federal courts continue to interpret and apply IDEA’S FAPE
requirement. The text of this provision remains the same since the original 1975 version
of the law. A “free appropriate public education” still refers to “special education and
related services that — (A) have been provided at public expense, under public supervision
and direction, and without charge; (B) meet the standards of the State educational
agency; (C) include an appropriate preschool, elementary school, or secondary school
education in the State involved; and (D) are provided in conformity with the
individualized education program.650
It is this provision that the courts rely on to determine the type of “appropriate”
educational opportunity students with disabilities receive. Courts examine the services
provided to the child in relation to the IEP, has been generally examined by the courts for

three factors: (1) whether it is related to the child’s learning capacity,65 1 (2) whether it is

specially designed for the child’s unique needs and not merely what is offered to

 

648 20 U.S.C. § 1412(a)(l6)(A)(ii) (1997), amended by 20 U.S.C. § 1412(a)(15)(A) (2004).

649 20 U.S.C. § 1414(d)(1)(A)(i)-(iii) (1997), amended by 20 U.S.C. § 1414(d)(1)(I-IV) (2004).

650 20 U.S.C. § 1401(9) (2000). The general requirement was recently amended to clarify that services
must still be provided to students with disabilities who have been suspended or expelled from school. 20
U.S.C. § 1412(a)(1)(A) (Supp. 2008).

651 Edwin W. Martin, Reed Martin, & Donna L. Tennan, The Legislative and Litigation History of Special
Education, THE FUTURE OF CHILDREN 34 (Spring, 1996). See also Bd. of Ed. of the Hendrick Hudson
Central Sch. Dist. v. Rowley, 458 U.S. 176, 209-10 (1982).

158

others,652 and (3) whether it is reasonably calculated to confer educational benefit.653

Using these criteria, courts apply three basic standards to judge the “appropriateness” of a

9, ‘6

child’s education in F APE challenges: “adequate benefit” or “some benefit, meaningful

benefit,” and mixed.654
The some benefit standard adopts the Rowley pronouncements on F APE that
require an IEP that is reasonably calculated to “confer the basic floor of educational

”655 and “enable the child to receive educational benefits.”656 The IEP does

opportunity
not need to maximize the child’s potential”57 or offer the best possible education“8 that

would lead to superior educational results.659 Although IDEA encourages parents’

 

652 Martin, Martin, & Terman, supra note 651, at 34; See also Rowley, 458 U.S. at 188-89.

653 Martin, Martin, & Terman, supra note 65], at 34; See also Rowley, 458 U.S. at 204.

654 Lester Aron, Too Much or Not Enough: How Have the Circuit Courts Defined a Free Appropriate
Public Education After Rowley?, 39 SUFFOLK U. L. REV. l, 7 (2005). One reason that these standards have
emerged is because although Rowley set the basic fiamework for interpreting IDEA’s FAPE requirement,
states may establish a higher substantive standard regarding the level of services that must be provided to
students with disabilities in their own laws. Gill v. Columbia 93 Sch. Dist., 217 F.3d 1027, 1035 (8th Cir.
2000)

655 Rowley, 458 U.S. at 201.

656 Rowley, 458 U.S. at 207; Devine V. Indian River County Sch. Bd., 249 F .3d 1289, 1292 (11th Cir.
2001). Child with autism’s IEP was found to be reasonably calculated to confer a basic floor of educational
benefits where he was making progress on his goals for school, even though these skills were not
transferable to the home environment. The court found that IDEA does not require the educational benefit
to be generalizable. Meaningful gains in the classroom are sufficient. Id at 1293.

657 Leonard V. McKenzie, 869 F.2d 1558,1561 (DC. Cir. 1989). No IDEA violation was found when a
district’s proposed IEP placed a child with learning disabilities and emotional problems in a full-time
public elementary school program designed for learning disabled students. Even though the parents
reasonably believed that a private lab school was the optimal educational environment for their child, the
IEP was reasonably calculated to enable him to receive educational benefits, and therefore it met the
statutory requirements. Id at 1562.

658 L.T. V. Warwick Sch. Comm., 361 F.3d 80, 83 (lst Cir. 2004). An autistic child’s placement in a self-
contained public school classroom was found to be reasonably calculated to provide an appropriate
education despite parents’ claims that child would be better served in a private program that offered one-
on-one attention where the IEP was based on a review of the child’s prior educational history, observations
of the child, and there was insufficient evidence that the district’s proposed placement was similar to a
program that had not served the child’s needs in the past. Since the court found the IEP to be adequate, it
would not consider whether other programs might better serve the child’s needs. Id at 86. See also Fort
Zumwalt School District v. Clynes ex rel. Clynes, 119 F.3d 607,613 (8th Cir. 1997).

659 Fort Zumwalt, 1 19 F.3d at 613. Parents sought reimbursement for private placement for son with a
learning disability in reading and math. The court found the IEP was “reasonably calculated to enable the
child to receive educational benefits” because he was receiving passing marks, his overall reading skills
had improved, and he had been promoted to the next grade even though he was not reading as well as his
non-disabled peers and he may have benefitted more from the private school environment. Id at 613

159

participation in the IEP development process, the district is not required to adopt the

(1.660

parents’ preferred educational placement for their chil Moreover, once a decision is

made that the challenged IEP is reasonably calculated to provide FAPE, other educational

(1.661

programs need not be considere This view is based on the idea that courts “lack the

specialized knowledge and experience necessary to resolve persistent and difficult

”662 and they must “avoid imposing their View of the

questions of educational policy
preferable educational methods.”663 This standard is utilized in the First, Eighth, Tenth,
Eleventh, and DC. Circuits.664

The “meaningfirl benefit” standard builds on the Rowley requirements. It starts
with the premise that IDEA requires more than a trivial or de minimis educational

665

benefit and directs courts to consider the individual child’s potential and confer a

meaningful educational benefit gauged in relation to this potential.666 Meaningfitl benefit

 

660 Blackmon ex rel. Blackmon v. Springfield R-XII Sch. Dist., 198 F.3d 648, 658 (8th Cir. 1999). This
case involved a placement dispute over a child with autistic behaviors. The IEP, which called for a “reverse
mainstream” classroom with additional related services, was found to provide “some educational benefit”
and thus the parents’ proposed placement would not be considered by the court. Id

661 Id at 661.

662 Rowley, 458 U.S. at 208

663 1d at 207.

664 Aron, supra note 654, at 7.

665 Polk v. Central Susquehanna lnterrnediate Unit 16, 853 F.2d 171, 180, 182 (3rd Cir. 1988). The circuit
court found that the lower court had applied the wrong substantive legal standard in this case where a
teenager was given occupational therapy rather than direct physical therapy. It reviewed the text and
legislative history of the EHA to determine that Congress did not intend for any educational benefit to be
sufficient even if it was de minimis, rather the law requires a meaningfirl benefit gauged in relation to the
child’s potential. Id at 181-85.

666 Polk, 853 F.2d at 184-85; Deal ex rel. Deal V. Hamilton County Bd. of Educ., 392 F.3d 840, 861-62
(6th Cir. 2004). Deal involved a placement dispute regarding a child with autism. The child’s parents’
desired a private program while the district’s proposed IEP called for his primary placement in a regular
education kindergarten class Deal ex rel. Deal, 392 F.3d at 847. The court found that the district’s refusal
to consider evidence regarding the child’s individual needs and the effectiveness of the private program
amounted to predeterrnination, a procedural Violation of IDEA, which denied him FAPE Id at 857-58.
Regarding the substantive standard for FAPE, the court stated that although the district is not required to
“maximize each child’s potential commensurate with the opportunity provided other children,” it must
confer a “meaningful educational benefit gauged in relation to the potential of the child,” and that at some
point the difference in outcomes between two educational programs, such as the public verses private
placement at issue, could be so great that providing the lesser program could constitute a denial of FAPE.
Id at 861-62.

160

is based on IDEA’s requirement that special education must be tailored to the unique
needs of the disabled child.667 It is designed to produce progress, not regression. This
standard is currently applied in the Second, Third, Fourth, Fifth, Sixth, and Ninth
Circuits.668

d669 was applied in the Seventh Circuit by the court in

A mixed substantive standar
Alex R. ex rel. Beth R. v. Forrestville Valley Community Unit School District #221.670 In
this case, although the court used the “meaningful benefit” label,“ the functional test it
applied in its analysis was consistent with the “some benefit” standard, which looks to
such things as receiving passing grades and advancing from grade to grade to show
sufficient progress in the educational program.672
3.4.1.3.3 — Characterization of IDEA Using Only its FAPE
Provision as Interpreted by the Courts
All three views of the type of educational opportunity that have emerged under
Rowley, some benefit, meaningful benefit, and mixed, are consistent with the basic
underlying conception of compensatory education that has been categorized as level the
playing field, since they provide extra assistance for students with disabilities but do not

guarantee a particular educational outcome.673 Thus, under IDEA, states give students

with disabilities an opportunity to receive an educational benefit that is closer to that

 

667 Ridgewood Bd. of Educ. v. Stokley, 172 F.3d 238, 247 (1999).

668 Aron, supra note 654, at 7.

669 Id

670 375 F .3d 603 (7th Cir. 2004).

671 Alex R. ex rel. Beth R, 375 F.3d at 612.

672 In this case, the court found that the IEP for an elementary-aged child with Landau-Kleffner
Syndrome, met both the procedural and substantive requirements of IDEA because it was “reasonably
calculated to enable him to receive educational benefits” based on his history of advancing from grade-to-
grade, his avoidance of disciplinary infractions, and his progress in learning Id at 615-16.

673 See Green, supra note 484, at 325; Roemer, Equality of Opportunity, supra note 491, at 1; Spring,
supra note 500, at 107.

161

available to their non-disabled peers than they would receive without the special
education and related services. Some benefit and meaningful benefit fall along the same
continuum with each designating a different level of assistance required to have the
ability to participate and learn in educational settings. Both require more than a trivial or
de minimis benefit, and at least the basic attainment of receiving passing grades, and
advancing from grade to grade, if the child is capable of doing so, but they do not require
states to maximize a child’s potential.

Courts applying a meaningful benefit View have focused on the individual nature
of the required inquiry and said that it is important to consider the child’s potential
compared with actual learning and that at some point the educational benefit offered is
insufficient if progress under one proposed program is significantly less than what
possible under a different proposed program.

It is against this backdrop that the No Child Left Behind Act of 2001 was enacted.

3.4.2 - NCLB and the Special Education Controversy

3.4.2.1 - The Requirements of No Child Left Behind, as enacted: PL
107-1 10

The No Child Left Behind Act (“NCLB”) is intended to “ensure that Q children
have a fair, equal, and significant opportunity to obtain a high-quality education and
reach, at a minimum, proficiency on challenging State academic achievement standards

and state academic assessments?”574 It is based on four pillars: stronger accountability for

 

674 20 U.S.C. § 6301 (emphasis added).
162

results, more freedom for states and communities, proven education methods, and more
choices for parents.675 The accountability principle is the most relevant to this discussion.

The school accountability system has three critical components: academic content
standards, academic achievement standards, and a measurement of progress towards
achieving these standards through assessments, adequate yearly progress, and public
report cards.676 Under NCLB, states specify their own rigorous content and achievement
standards that include the same knowledge, skills, and levels of achievement expected of
all elementary and secondary school students in math, reading or language arts, and

677 and evaluate whether schools are being successfiil in teaching students the

science
knowledge and skills defined by the content standards using academic assessments.678 As
enacted, NCLB permits students with disabilities to participate in the assessments using

679 Assessments are to be administered

reasonable adaptations consistent with IDEA.
every year in grades three through eight and at least once in high school.680 NCLB sets a

goal of having 100 percent of the students in this country achieve a “proficient” score, as

 

675 U.S. DEP’T OF EDUC., FOUR PILLARS OF NCLB 1 (July I, 2004),
hay/WWW.ed.,gov/nclb/overview/intro/4Dillgrshtml. It has also been characterized as being guided by the
following six principles: accountability, highly qualified teachers, scientifically based instruction, local
flexibility, safe schools, and parent participation and choice. TumBull, supra note 628, at 321-22.

676 See Candace Cortiella, supra note 540, at 17-18; Rules and Regulations, 68 FED. REG. 68698 (Dec. 9,
2003).

677 “Each State plan shall adopt[ed] challenging academic content standards and challenging student
academic achievement The academic standards shall be the same academic standards that the State
applies to all schools and children [i]ncluding at least mathematics, reading or language arts, and
science...” 20 U.S.C. § 631 l(b)(l)(A)-(C).

678 “Each State ...shall implement[ed] a set of high-quality, yearly student academic assessments that
will be used as the primary means of determining the yearly performance of the State and of each local
educational agency and school in enabling all children to meet the State’s challenging student academic
achievement standards Such assessments shall be the same academic assessments used to measure the
achievement of all children.” 20 U.S.C. § 631 l(b)(3)(A)&(C)(i). See also Rules and Regulations, 68 FED.
REG. 68698 (Dec. 9, 2003).

679 20 U.S.C. § 6311(b)(3)(C)(ix)(II).

680 20 U.S.C. § 6311(b)(3)(C)(v)&(vii).

163

defined by the state, on its assessments by the 2013-2014 academic year.681 In the
meantime, the law has states adopt an “adequate yearly progress” (“AYP”) standard that
marks the way towards meeting student academic achievement goals and reducing the
gaps in achievement among different student groups};82 The law requires reporting of
student achievement scores of all students and certain student groups, including
economically disadvantaged students, students from major racial and ethnic groups,
students with disabilities, and students with limited English proficiency.683 Ninety five
percent of all students enrolled must participate in the assessments for the results to count
as valid.684 To calculate AYP, all students and each group of students within a school
must meet or exceed the state’s annual measurable objectives.685 Schools face sanctions if
they do not meet these student achievement targets. If even one student group does not,
the school does not meet its AYP target and it is subject to sanctions.686
There are four stages of consequences for failure to make AYP. The initial two
stages are called “school improvement” and stage one begins when a schOol fails to make

AYP for two consecutive years.687 The school must notify parents about its school

improvement status, offer all students enrolled in the school the opportunity to transfer to

 

681 “Each State must establish a timeline for making AYP that ensures that, not later than the 2013-2014
school year, all students in each group will meet or exceed the State’s proficient level of academic
achievement. 34 C.F.R. § 200.15.

682 20 U.S.C. § 6311(b)(2)(B). States are able to define their own student percentage achievement targets
each year (e.g. step, continuous improvement, or growth model) until the one hundred percent proficiency
goal requirement in 2014.

683 20 U.S.C. § 6311 (b)(2)(C)(v).

684 20 U.S.C. § 6311(b)(2)(1)(ii)(2003 & Supp. 2008).

685 34 C.F.R. § 200.20(a)(2). States have flexibility in setting the minimum group size, so if there are not
enough students within a school to meet the group size requirement, the school does not have to report the
scores of students in a particular subgroup. 5-04 ED policy letter

686 34 C.F.R. 200.20(a)(1). There is a “safe harbor” provision that allows a school to count a subgroup as
meeting AYP even if it does not meet the state’s annual measurable objections if the rest of the school
makes AYP and the subgroup has percentage of students in the group that are below proficient has
decreased by at least 10 percent from the previous year. 34 C.F.R. § 200.20(b).

687 20 U.S.C. § 63 l6(b)(l)(A) (2003 & Supp. 2008).

164

a different public school that has not been labeled for school improvement, undertake
professional development for its teachers, and develop a school plan to address the
academic issues in the school.688 If the identified school does not meet AYP for the third
consecutive year, the students who remain in the school must be offered supplemental
services that consist of extra academic help such as individual tutoring.‘589 If the school
does not meet AYP for the fourth consecutive year, it moves to the level three
intervention called “corrective action.”690 This stage involves significant changes
including new curriculum, staff changes, a longer school day or year, the hiring of
outside consultants, and the continuation of the earlier options offered to parents for
school choice and supplemental services.“ After one year on a corrective action plan, if
the school still does not meet its AYP targets, it must be restructured under the step called
“restructuring.”692 This level four intervention requires either the replacement of most of
the school’s staff or the implementation of an alternative governance system.693
3.4.2.2 - Version of Equal Educational Opportunity embodied in
NCLB: Minimal Achievement
NLCB is considered to be a compensatory education program because it is
designed to provide extra assistance to certain groups of students, including low
achieving children in high-poverty schools and children with disabilities.694 Its

accountability system that relies on state academic assessments to hold schools

accountable for “improving the academic achievement of all students” in a manner that

 

688 20 U.S.C. § 6316(b)(1)-(3).

689 20 U.S.C. § 6316(b)(5). See also U.S. DEP’T OF EDUC., DESCRIPTION OF SUPPLEMENTAL EDUCATIONAL
SERVICES 1 (Feb. 26, 2007), http://www.ed.gov/nclb/choice/help/ses/description.htrnl.

690 20 U.S.C. § 6311(b)(7) (2003).

691 Id

692 20 U.S.C. § 6316(b)(8) (2003 & Supp. 2008).

693 Id

694 See 20 U.S.C. § 6301 (2003 & Supp. 2008).

165

enables them to receive a “high-quality education”695 is one of the key mechanisms it

uses to accomplish this goal. This combination of the achievement of a universal
educational standard in the form of a proficient score on state academic assessments, and
accountability through escalating consequences for schools if it is not met, is consistent
with the minimal achievement version of equality of educational opportunity because it
requires the provision of sufficient resources to allow for the attainment of some
minimum common level of achievement for all.”6 Thus, NCLB’S vision of equal
educational opportunity promotes each student’s right to attain at least a proficient score
state standardized tests in mathematics, reading or language arts, and science, or the
student’s school must undertake specific steps to correct the deficiency — the school’s
overall low score on the test.697

What NCLB does not guarantee, however, is an individual student’s right to attain
a score that is proficient or above on the state assessments. In practice, NCLB views
students as a group, requiring ninety-five percent participation in the assessments and the
reporting of aggregate student scores at each proficient level and also disaggregated
scores by group.698 There is no private right to action provision in NCLB, therefore, an
individual student may not sue to enforce any of its provisions.699 Thus, even though
NCLB strives to provide each student with the opportunity to obtain a high-quality
education as evidenced by their scores on state academic assessments, it does not

guarantee it. Yet inherent in the concept of equal educational opportunity is the idea of

 

695 20 U.S.C. § 6301(4) (2003).

696 Burbules, Lord & Sherman, supra note 493, at 183.

697 NCLB would not fit the same results model of equal educational opportunity because it does not
require the “strict equalization of outcomes,” or test scores. Any score that is proficient or above is counted
in a school’s adequate yearly progress calculation. See Burbules, Lord & Sherman, supra note 493, at 182.
698 20 U.S.C. § 6311(h)((1)(C)(2003).

699 However, each student in an underperforrning school is entitled to transfer to a non-failing school or
utilize supplemental services like individual tutoring.

166

offering students a chance to achieve a certain educational result and not requiring that
they actually attain it. Equal educational opportunity commonly makes allowances for the
student’s own educationally relevant variables, such as effort and choice, to play apart in
the outcome. Therefore, even though the promise of achieving a proficient score on the
state tests is not made directly to the students themselves in a way that they are able to
claim and enforce, the consequences on schools if sufficient numbers of students do not
meet the proscribed academic targets, is probably enough to characterize NCLB’S equal

educational opportunity standard as the minimal achievement View.

167

3.4.2.3 -- NCLB and IDEA: Tension between the requirements

Congress’s vision of a “high-quality education” in NCLB is that all students have
a “fair, equal, and significant opportunity” to obtain proficiency on state academic
assessments that reflect challenging academic expectations.700 Its vision of an
“appropriate” education in IDEA is one that is individualized to the child with a
disability, affords them with the opportunity to receive an “educational benefit”701 and
prepares them for “further education, employment and independent living.”702 Since both
laws apply to students with disabilities, the education community began to discuss the
potential opportunities and problems for these students after NCLB’s passage. Some
commentators saw NCLB as a positive development in the field, one which could raise
the academic expectations and opportunities for students with disabilities,703 while others
viewed it as a threat, one which could have a negative effect on their education.704

These divergent views emerged because of the differing requirements in each of
the laws relating to students with disabilities and the vision of educational Opportunity for
these students that they each promote. Even though IDEA and NCLB are both considered
compensatory education programs since they offer additional resources to certain groups
of students, IDEA’s primary goal is on leveling the playing field by focusing on the
unique needs of each child with a disability705 while NCLB Views children in groups,

such as disadvantaged kids and students with disabilities, requiring a minimum level of

achievement through a specified level of proficiency for all students in each group on

 

700 20 U.S.C. §6301 (2003 & Supp. 2008).

701 Bd. of Ed. of the Hendrick Hudson Central Sch. Dist. V. Rowley, 458 U.S. 176 (1982).
702 20 U.S.C. § 1400(d)(l)(A).

703 Handler, supra note 443; Johnson, supra note 443; Rosenbaum, supra note 443.

704 Keele, supra note 442; Metz-Topodas, supra note 445; Plain supra note 445.

705 20 U.S.C. § 1400(d)(l)(A).

168

academic assessments. With this difference at the forefront, the ideological battle was
fought around the laws’ requirements regarding the participation of students with
disabilities in state standardized testing. NCLB requires the inclusion of students with
disabilities in state and district standardized tests706 the separate reporting of their
scores,707 and that a sufficient number of them obtain a proficient score on these tests in
order to count towards a schools’ AYP calculation.708 Although IDEA 1997 also called
for the participation of students with disabilities in state assessments, it provided more
testing options, specifically alternate assessments in addition to the regular assessment
system. 709 In its original form, NCLB contemplated that all students would take the
regular state assessments using state grade-level content and achievement standards.710

The commentators that viewed NCLB’s assessment and reporting requirements as
benefitting students with disabilities made four main points. First, NCLB sheds light on
the students receiving special education services, many of whom do not really belong

there and can, with the proper support, achieve at the same level as their regular

education counterpartsm Since most students with disabilities spend the majority of their

 

706 20 U.S.C. § 631l(b)(3)((C)(ix)(I)&(Il)(2003 & Supp. 2008).

707 20 U.S.C. § 6311(h)(1)(C)(i)(2003).

708 20 U.S.C. § 6311(b)(3)(C) (2003 & Supp. 2008).

709 “Children with disabilities are included in general State and district-wide assessment programs, with
appropriate accommodations where necessary. As appropriate, the State or local educational agency — (i)
develops guidelines for the participation of children with disabilities in alternate assessments for those
children who cannot participate in State and district-wide assessment programs; and (ii) develops and,
beginning not later than July I, 2000, conducts those alternate assessments. 20 U.S.C. §
1412(a)(17)(A)(l997) amended by 20 U.S.C. § 1412(a)(l6)(A) (2004).

710 “Such assessments shall - (i) be the same academic assessments used to measure the achievement of
all children; (ii) be aligned with the State’s challenging academic content and student academic
achievement standards, and provide coherent information about student attainment of such standards
(ix) provide for (I) the participation in such assessments of all students; (11) the reasonable adaptations and
accommodations for students with disabilities (as defined under section 602(3) of the Individuals with
Disabilities Education Act) necessary to measure the academic achievement of such students relative to
State academic content and State student academic achievement standards. 20 U.S.C. § 631 1(b)(3)(C).
71 1 Leaving some children behind: special education should not be exempted from No Child Left Behind
Act, THE NEW YORK TIMES, Jan. 27, 2004, at A22.

169

time in general education classrooms, including them in the accountability system is
likely to raise educators’ academic expectations for them.712 Second, students with
disabilities, even those with the most significant cognitive disabilities, benefit
instructionally from participation in standardized testsm Third, assessments help schools
evaluate the academic progress of all students."4 Fourth, all kids, including those in
special education, need to learn certain academic skills.“5 In the past, many students with
disabilities were not even taught basic academic concepts.716

Those commentators that were concerned about NCLB’s potential negative effect
on students with disabilities also had four main concerns. First, teachers would shift their
focus from an individual student’s improvement to the overall school’s academic
success717 thereby potentially creating a substantive violation of IDEA by denying
students with disabilities an educational benefit.718 Second, teachers would teach to the
tests rather than impart the broader range of knowledge and skills that students need to
learn.719 Third, including students with disabilities in standardized testing could create a
high level of anxiety in them.720 Fourth, the pressure to perform well on these tests could
produce a backlash against students with disabilities and induce higher drop-out rates for

them.72 I

 

712 Rules and Regulations, 68 FED. REG. 68698 (Dec. 9, 2003).

713 U.S. DEP’T OF EDUC., MODIFIED ACADEMIC ACHIEVEMENT STANDARDS NON-REGULATORY GUIDANCE
11 (July 20, 2007), http://www.ed.gov/policy/speced/guid/nclb/twopercentdoc.

714 Id

715 U.S. DEP’T OF EDUC., WORKING TOGETHER FOR STUDENTS WITH DISABILITIES: INDIVIDUALS WITH
DISABILITIES EDUCATION ACT (IDEA) AND NO CHILD LEFT BEHIND ACT (N CLB) FREQUENTLY ASKED
QUESTIONS [hereinafter USDOE Working Together for Students], Dec. 2005,
http://www.ed.Rov/admins/l__ead/speced/toolkit/faqs.doc.

716 Rules and Regulations, 68 FED. REG. 68698 (Dec. 9, 2003).

717 Keele, supra note 442, at 1119.

718 Plain, supra note 445, at 250.

719 Keele, supra note 442, at 1119-20.

720 Id at 1120.

721 Id at 1119.

170

It is the first concern that best describe the underlying legal tension between
IDEA and NCLB. Without individual consideration of the student’s educational status
and needs, NCLB was seen as undermining a cornerstone of IDEA, the individually
crafted education plans with realistic goals that are specifically designed to confer an
educational benefit on a particular student.722 In essence, it was argued, NCLB transforms
the philosophy of special education from individual-based assessment to a group-based
standardized accountability based on an arbitrary number of students participating and
the scores received.723 NCLB was also seen as a threat to a special education student’s
right not to participate in an assessment at all if the student’s IEP team, a team that has
both educational expertise and familiarity with the child, determines that the child would
receive a greater educational benefit from not participating,724 even though IDEA
directed them to be included either through regular or alternate assessments. Under IDEA
1997, students with disabilities were not required to engage in the curriculum in the same
manner, practice the same skills, or even make the same academic progress as general

725 although states were required to offer them access to and the ability

education students,
to make progress in the general curriculum.726 In light of these concerns advocates argued
that a broader range of testing methods than was offered under NCLB should be available
to utilize with the identified learning styles of students with disabilities.727

Both the U.S. Department of Education (U SDOE) and Congress responded to

these concerns about the alignment of the laws and the advisability of including all

 

722 Keele, supra note 442, at 1133; Plain, supra note 445, at 257.
723 Keele, supra note 442, at 1116.

724 Plain, supra note 445, at 252-53.

725 Keele, supra note 442, at 1126.

726 20 U.S.C. § 1414(d).

727 Id at 1133.

171

students with disabilities in a state’s general standardized assessment system. The
USDOE promulgated regulations under NCLB and Congress revised IDEA in its
reauthorization process.
3.5 — Alternate Assessments: The Federal Government’s Response to Concerns
about Including all Students with Disabilities in NCLB’S Accountability
Requirements

This section outlines both the U.S. Department of Education’s (USDOE) and
Congress’ response to the concerns expressed over students with disabilities’
participation in NCLB’S standardized testing requirements. The USDOE acted quickly to
modify No Child Left Behinds’ (N CLB) assessment provision that did not allow for
students with disabilities to take alternate assessment. Congress, in its 2004
reauthorization of the Individuals with Disabilities Education Act (IDEA), specifically
aligned the law with NCLB’s revised assessment requirements that did permit alternate
assessments.

3.5.1 - NCLB: USDOE’s Response to Concerns about Including all Students

with Disabilities in NCLB’S Accountability Requirements

3.5.1.1 -The Current Status of NCLB Assessment Policy for Students

with Disabilities

Under NCLB, students with disabilities, except for a small percentage who may
take alternate assessments, must take and successfully perform on the regular academic
standardized tests.728 There are five different ways in which students with disabilities

may participate in the state assessment systems: (1) a general grade-level assessment; (2)

 

723 20 U.S.C. § 6311(b)(2)(C) (2003); 34 C.F.R. § 200.13.
172

729 (3) an alternate assessment

a general grade-level assessment with accommodations;
based on grade-level academic achievement standards; (4) an alternative assessment
based on modified academic achievement standards; or (5) an alternate assessment based
on alternate academic achievement standards.730 USDOE regulations permit students with
the most significant cognitive disabilities, up to 1 percent of the total population of
students in the grades assessed, to take alternate tests based on alternate academic
achievement standards and have their proficient or advanced scores count towards
AYP.73 ’ Similarly, the regulations allow students with disabilities, who have been unable
to achieve grade-level proficiency within the one year period covered by an IEP, to take
alternate tests based on modified academic achievement standards. 732 Up to 2 percent of
the total population of students may utilize this option and have their proficient or
advanced scores counted in the school’s AYP calculation.733 The combined total of
scores that may count towards proficient in a state’s AYP calculation may not exceed 3
percent of all students in the grade assessed.734
Over the course of five years, NCLB assessment requirements for students with

disabilities progressed from all students taking the same test, some with accommodations,

to three alternate assessment options, in addition to the general state assessment. An

 

729 Reasonable adaptations and accommodations for students with disabilities are permitted when
necessary to measure the academic achievement of students. 20 U.S.C. § 6311(b)(3)(C)(ix)(II). These
accommodation guidelines are set by states. 20 U.S.C. § 1412(a)(l6)(B). Accommodations may include:
changes in presentation, changes in response mode, changes in timing, or changes in setting. Keele, supra
note 442, at 1124.

730U.S. DEP’T OF EDUC., MODIFIED ACADEMIC ACHIEVEMENT STANDARDS NON-REGULATORY GUIDANCE,
supra note 713, at 11.

731 34 C.F.R. § 200.13(c)(2)(i); 34 C.F.R. § 200.1(d).

732 34 C.F.R. § 200.13(c)(2)(ii); 34 C.F.R. § 200.1(e)(2).

733 Id

734 34 C.F.R. § 200.13(c)(3).

173

“alternate” assessment is an assessment that is an “alternate” to a general assessment. 735
It is intended to evaluate what students know and can do in Situations where students
cannot demonstrate these skills on the general assessmentsm’ To qualify as an alternate
assessment, it must be aligned with the state’s content standards, must yield results
separately in both reading/language arts and mathematics, and must be designed and
implemented in a manner that supports use of the results as an indicator of AYP.737 All of
the alternate assessments permitted by NCLB are based on state academic content

739 that may be altered for two of

standards.738 It is the academic achievement standards
these assessments.
3.5.1.2 -— NCLB: Changes to the Assessment Requirements for
Students with Disabilities in the Regulatory Process
The evolution of NCLB’S testing requirements for students with disabilities has
occurred in four phases: (1) the original enactment of NCLB that included all students
with disabilities in the general state assessment systems with accommodations but
without alternate assessments; (2) the first rule-making round that directed states to
incorporate alternate assessments based on the regular academic achievement standards
into their general state assessment system; (3) the second rulemaking round that

introduced the 1 percent rule for alternate assessments using alternate academic

achievement standards for students with the most significant cognitive disabilities; and

 

735 U.S. DEP’T OF EDUC., MODIFIED ACADEMIC ACHIEVEMENT STANDARDS NON-REGULATORY
GUIDANCE, supra note 713, at 22.

736 Id at 12.

737 U.S. DEP’T OF EDUC., Working Together for Students, supra note 715.

738 “Academic content standards are statements of the knowledge and skills that schools are expected to
teach and students are expected to learn.” U.S. DEP’T OF EDUC., MODIFIED ACADEMIC ACHIEVEMENT
STANDARDS NON-REGULATORY GUIDANCE, supra note 713, at 13.

739 “Academic achievement standards are explicit definitions of how students are expected to demonstrate
attainment of the knowledge and skills reflected in the content standards.” Id

174

(4) the third rule-making round that established the 2 percent rule for alternate
assessments using modified academic achievement standards for students with
disabilities that affect their ability to reach grade-level proficiency within one academic
year. In its description of the changes, the U.S. Department of Education documents say
that they are motivated by clarifying the statute and providing flexibility740 and in
response to the experience of the states and recent researchm
Within one month after the passage of NCLB, the U.S. Secretary of Education
issued a notice of meetings to conduct a negotiated rulemaking process.742
3.5.1.2.] - First Rule-Making: Alternate Assessments using
Grade-Level Content and Achievement Standards
The first draft regulations, published in February 2002, proposed “one or more
alternate assessments for students with disabilities who cannot participate in all or part of
the regular State assessments, even with reasonable adaptations and accommodations.”743
The final regulations, which were published later that year, adopted this change, thereby
allowing students to take alternate assessments as part of NCLB’s accountability

scheme.744 The regulations were then reissued to clarify that alternate assessments must

yield results for the grade in which the student with disabilities is enrolled, i.e. the

 

740 Notice of Proposed Rulemaking, Adequate Yearly Progress, 67 FED. REG. 50987 (Aug. 6, 2002) (to be
codified at 34 C.F.R. § 200.13(c)).

741 Proposed Rules, 70 FED. REG. 74624 (Dec. 15, 2005).

742 Notice of Meetings to Conduct Negotiated Rulemaking Process, 67 FED. REG. 9223 (Feb. 28, 2002).
743 Draft Regulations for Negotiated Rulemaking, Inclusion of All Students, (February 28, 2002) (to be
codified at 34 C.F.R. § 200.6), http://www.edgov/news/events/rulemakinglhtml.

744“Alternate assessment. (1) The State’s academic assessment system must provide for one or more
alternate assessments for a student with disabilities as defined under section 602(3) of the IDEA who the
student’s IEP team determines cannot participate in all or part of the State’s assessments ..., even with
appropriate accommodations. (ii) Alternate assessments must yield results for the grade in which the
student is enrolled in at least reading/language arts, mathematics, and, beginning in the 2007-2008 school
year, science.” Inclusion of All Students, 67 FED. REG. 71715 (Dec. 2, 2002)(to be codified at 34 C.F.R. §
200.6).

175

alternate assessments must be based on grade-level content and achievement standards
just like the regular assessments.745
3.5.1.2.2 — Second Rulemaking: 1 Percent Rule

The rule regarding the students with the most significant cognitive disabilities was
initially proposed by the Secretary of Education on August 6, 2002.746 It was designed to
allow states and local educational agencies to evaluate students with the most significant
cognitive disabilities’, such as those with autism, multiple disabilities, and traumatic
brain injury,747 learning using alternate achievement standards that reflected the “highest

”748 rather than the general state standards

learning standards possible for those students
and have their proficient and advanced scores on these alternate assessments counted in
their AYP calculation.749 Alternate achievement standards set a less complex expectation

of performance for students than the regular grade-level achievement standards, usually

based on a very limited sample of content, yet are still aligned with the state’s academic

 

745 Inclusion of All Students, 67 FED. REG.45041 (July, 5, 2002); See also 67 FED. REG. 71715 & 71741
(Dec. 2, 2002).

746 Notice of Proposed Rulemaking, Adequate Yearly Progress, 67 FED. REG. 51005 (Aug. 6, 2002) (to be
codified at 34 C.F.R. § 200.13(c)).

747 U.S. DEPT OF EDUC., ALTERNATE ACHIEVEMENT STANDARDS FOR STUDENTS WITH THE MOST
SIGNIFICANT COGNITIVE DISABILITIES NON-REGULATORY GUIDANCE 20 (Aug. 2005),
http://www.ed.gov/policy/elsec/guid/altguidance.pdf.

748“Altemate academic achievement standards. For students under section 602(3) of the Individuals with
Disabilities Education Act with the most significant cognitive disabilities who take an alternate assessment,
a State may, through a documented an validated standards-setting process, define alternate academic
achievement standards, provided those standards —

(1) Are aligned with the State’s academic content standards;
(2) Promote access to the general curriculum; and
(3) Reflect professional judgment of the highest achievement standards possible.

34 C.F.R. § 200.1(d)

749§ 200.13(c)(1) In calculating adequate yearly progress for schools, LEA’s, and the State, a State -

(ii) Must, consistent with § 200.7(a), include the scores of al students with disabilities, even those with
the most significant cognitive disabilities; but
(ill) May include the proficient and advanced scores of students with the most significant cognitive

disabilities based on the alternate academic achievement standards in § 200.1(d), provided that the number
of those students who score at the proficient or advanced level on those alternate achievement standards at
the LEA and at the State levels, separately, does not exceed 1.0 percent of all students in the grades
assessed in reading/language arts and in mathematics.” Id at 50987 & 51005.

176

content standards.750 They may include prerequisite or enabling skills that are part of a
continuum of skills that culminates in grade-level proficiency.751 States define who is
eligible to take the alternate assessments and individual IEP teams determine how, not
whether, a student will participate in the state assessment system.752
In its original form, the proposed regulation contained a .5 percent limit.753 This
limit was increased to 1 percent in the rule that was proposed on March 20, 2003.754 It
was adopted on December 9, 2003.755 The 1 percent limit is calculated using the total
number of students enrolled in the grade tested at the state and local educational agency
level, not within individual schools.756 This limit is consistent with the national incidence
rates of students with the most significant cognitive disabilities, which are between 5
percent and 10 percent of students with disabilities and roughly translates to .5 percent to
1 percent of all students.757 The rule is set forth in the three regulations.758 These
regulations do not limit the number of students who may take alternate assessments using
alternate achievement standards, instead they only limit the number of student proficient

and advanced scores on these tests that may be included in a school’s adequate yearly

progress calculation.759

 

750 U.S. DEP’T OF EDUC., ALTERNATE ACHIEVEMENT STANDARDS FOR STUDENTS WITH THE MOST
SIGNIFICANT COGNITIVE DISABILITIES NON-REGULATORY GUIDANCE, supra note 747, at 20; U.S. DEP'T OF
EDUC., MODIFIED ACADEMIC ACHIEVEMENT STANDARDS NON-REGULATORY GUIDANCE, supra note 713, at
15.

751 Id at 27 . See the Appendix 3.1 for an example.

752 Id at 23-24.

753 Notice of Proposed Rulemaking, Adequate Yearly Progress, 67 FED. REG. 50987 (Aug. 6, 2002) (to be
codified at 34 C.F.R. § 200.13(c)).

754 Proposed Rules, 68 FED. REG. 13797-98 (March 20, 2003) (to be codified at 34 C.F.R. § 200.1(d) and
§ 200.13(c)(l)).

755 Rules and Regulations, 68 FED. REG. 68703 (Dec. 9, 2003) (to be codified at 34 C.F.R. § 200.1, §
200.6 and § 200.13).

756 Rules and Regulations, 68 FED. REG. 68706 (Dec. 9, 2003).

757 Proposed Rules, 68 FED. REG. 13799 (March 20, 2003).

758 34 C.F.R. §§ 200.1(d); 200.6(a)(2)(ii)(B); 200.13(c)(1).

759 Rules and Regulations, 68 FED. REG. 68706 (Dec. 9, 2003).

177

3.5.1.2.3 — Third Rulemaking: 2 Percent Rule

The formal process for adopting 2 percent rule was initiated in December 2005.760
The U.S. Secretary of Education proposed allowing for 2 percent of all students in a
grade assessed, approximately 20 percent of students with disabilities, to have their
proficient and advanced scores on assessments included in a district and state AYP
calculation.761 This regulation was designed to cover “students, who because of their
disability, have significant difficulty achieving grade-level proficiency, even with the best
instruction.”762 The modified academic achievement standards must be aligned with the
state’s content standards for the grade in which the student is enrolled and set at a level
that is challenging for the students taking the assessment but less difficult than the regular
grade-level achievement standards.763 States may use a variety of strategies to make the
assessment less rigorous than the general assessment, including, but not limited to,
modifying the general test by replacing the most difficult items, simplifying the language,
or eliminating a “distractor” answer if it is a multiple choice test.764 States may also
develop a completely separate test based on the modified achievement standards.765 The
goal of these assessments is to provide students with access to the curriculum so that they

can move closer to grade-level achievement, thereby maintaining high expectations for

their academic performance.766 As with the 1 percent rule, this 2 percent cap is only a

 

760 Notice of Proposed Rulemaking, 70 FED. REG. 74624 (Dec. 15, 2005).

761 Id at 74625.

762 Id at 74624. “The student’s progress to date in response to appropriate instruction, including special
education and related services designed to address the student’s individual needs, is such that, even if
significant grown occurs, the IEP team is reasonably certain that the student will not achieve grade-level
proficiency within the year covered by the student’s IEP.” 34 C.F.R. § 200.1(e)(2)((ii)(A).

763 34 C.F.R. § 200.1(e)(i)&(ii).

764 U.S. DEP’T OF EDUC., MODIFIED ACADEMIC ACHIEVEMENT STANDARDS NON-REGULATORY
GUIDANCE, supra note 713, at 25.

765 Id

766 Rules and Regulations, 72 FED. REG. 17755 (April 9, 2007).

178

limitation on the number of students whose proficient and advanced test scores may

count in an AYP calculation, not on the number of students who may actually participate

in this type of assessment. The decision on how an individual student should participate

in an assessment is made by that student’s IEP team.767 To make this change, five NCLB

regulations were amende

participation in assessments.

(1,768

769

along with one under IDEA addressing student

The following tables provide an overview of the current alternate assessment

options available to states under NCLB. Table 1 links the type of assessment with the

relevant student population, state achievement standards, and NCLB AYP calculations.

Table 3.2 lists the alternate achievement standards options.

Table 3.1 — Assessment System for Students with Disabilities under NCLB &

 

 

IDEA770
I Achievement ' ' V ' . NCLB AYP 4
Student Grou . . . ----- sessmen
. ' P. _ - . Standards--» 1 As -- , t Calculation
Students working on Grade-level Based on grade-level
grade level who achievement standards achievement standards 77'

complete it with or
without
accommodations

No exemption

 

Students working on
grade level who are not
able to complete all
grade-level material in
the course of a year

 

 

Modified achievement
standards that are
aligned with grade-level
content standards, but
are modified so that
they reflect reduced
breadth or depth of
ade-level content

 

Based on modified
grade-level achievement
standards

 

2% exception

 

 

767 “For each student with a disability, as defined under section 602(3) of the IDEA, appropriate
accommodations that the student’s IEP team determines are necessary to measure the academic
achievement of the student relative to the State’s academic content and academic achievement standards for
the grade in which the student is enrolled ....” 34 C.F.R. § 200.6(a)(1)(i)(A).
768 34 C.F.R. §§ 200.1(a)(e)&(f); 200.6(a)&(c); 200.7(a); 200.13(c); 200.20(c)(f)&(g). Rules and
Regulations, 72 FED. REG. 17778-81 (April 9, 2007).
769 34 C.F.R. § 300.160; Rules and Regulations, 72 FED. REG. at 177781.
770 Letter from Edward Roeber & Jacquelyn Thompson, Michigan Department of Education (Feb. 28,
2006) (on file with author); USDOE, Working Together for Students, supra note 715.

771 All students with disabilities who do not qualify for an exemption should be in this category.

179

 

 

Table 3.1 (cont’d).

 

Students with most
significant cognitive
disabilities

(1) Grade-level
achievement standards
OR

(2) Alternative
achievement standards
-Aligned with the
State's academic content

Alternative assessments
based on either:

(1) grade-level
achievement standards
-Assessment procedures
may differ from the
regular assessment (e.g.,

1% exemption applies

 

 

standards & promote
access to the general
curriculum but cover a
narrower range of
content (e. g., fewer
objectives under each
content standard) &
reflect a different set of
expectations in the
content areas (reduced
complexity or modified
to reflect pre-requisite
skills) than do regular
assessments or alternate
assessments based on
grade-level achievement
standards.

choice)
OR
(2) Alternative

 

include body-of-work
or performance tasks
instead of multiple

achievement standards
-Assessment procedures
may differ here too.

 

 

 

Table 3.2 — Characteristics of Alternate Achievement Standards772

 

’ (based on Alternate

Standards (1%) ' .

“ Alternate. Asatetim—cut —

A ’ Academic Achievement , '1

met-natt- Assessment.
”8886011 Modified

‘- AcademicAchievemel—‘t

. Standards(2%)

, taunt

based on Grade-Level ~

Academic Achievement '. g
' Standards

 

 

An alternate academic
achievement standard is an
expectation of performance
that differs in complexity
from a grade-level
achievement standard,
usually based on a m
limited sample of content
that is linked to but does
not fullv represent grade-
level content.

 

 

A modified academic
achievement standard is
aligned to grade-level
content standards for the
grade in which a student is
enrolled and challenging
for eligible students, but
may be less difficult than
grade-level achievement
mam»

 

A grade-level academic
achievement standard
defines a level of
“proficient” performance
equivalent to grade-level
achievement on the Stati’s

regular assessment.

 

 

 

772 U.S. Dep’t of Educ., Modified Academic Achievement Standards Non-Regulatory Guidance, supra

note 713, at 52.

180

3.5.2 - IDEA 2004 Accountability Provisions: Growing Alignment with
NCLB

The 2004 reauthorization of IDEA aligned the law with NCLB in its high
expectations for the educational success of students with disabilities and accountability
for this success.773 The common vision shared by both laws is for improved educational
outcomes for students with disabilities.774 The articulation of this vision is found in the
laws’ stated purposes 775 and its inclusion of students with disabilities in NCLB’S
accountability scheme, as reflected in its requirement that students with disabilities be
taught core academic content776 and in the assessment system.777 The two primary means
Congress used to accomplish this alignment was through the use of direct references to
NCLB and parallel language in the text of the laws.778

3.5.2.1 — Purpose

IDEA aims to prepare students with disabilities for further education,
employment, and independent living.779 This goal is consistent with NCLB’s goal is to
provide a high quality education for low achieving kids, including those with disabilities,
so that they may achieve academic proficiency as demonstrated on local and state

assessments.780

 

773 See generally Handler, supra note 443; U.S. DEP’T OF EDUC., IDEA REGULATIONS: ALIGNMENT WITH
THE No CHILD LEFT BEHIND (NCLB) ACT (Feb. 2, 2007),
http://idea.ed.gov/explore/view/p/%2Croot%2Cdyn3mic%2CToDicalBrief/02C3%2C [hereinafter
“USDOE, IDEA Regulations”].

774 Id

775 Id

776 USDOE, IDEA Regulations, supra note 743 at l.

777 Id at 5.

778 NCLB specifically mentions IDEA at least thirty-eight times in its text. Handler, supra note 443, at 5.
779 20 U.S.C. § 1400(d).

780 20 U.S.C. § 6301.

I81

 

3.5.2.2 - Core Academic Content

NCLB requires states to establish academic content and achievement standards in
mathematics, reading or language arts, and science.781 IDEA 2004 accomplishes
alignment with NCLB’S focus on core academic subjects through two provisions:
performance goals and indicators and IEP goals and services that promote access to the
general education curriculum.782 The law was revised to specifically require states to
apply their NCLB adequate yearly progress performance goals to students with
disabilities.783 IDEA 1997 only called for states to have goals for the performance of
children with disabilities that: (1) promoted the “purposes of the act” and (2) were
“consistent, to the maximum extent appropriate, with other goals and standards for
children established by the State.”784 While IDEA 2004, kept these two stipulations, it
added the requirements that the goals for students with disabilities match those defined
by NCLB and that they assess students with disabilities’ progress towards annual
adequate yearly progress objectives.785 This change emphasized not only that the state’s
academic standards apply to everyone, but also that students with disabilities, according
to IDEA’S own terms, would be included in NCLB’s formal accountability system.
IDEA’s expanded focus on core academic skills was also manifested in its IEP
components section that require a description of the child’s measurable annual goals and

special education and related services that permit the child to be “involved and make

 

781 20 U.S.C. § 6311(b)(1)(A)-(C).

782 Handler, supra note 443, at 6.

783 20 U.S.C. § 1412(a)(15)(A)(ii); 34 C.F.R. 300.157(a) and (b); See 20 U.S.C. § 6311(b)(2)(C).

784 § 1412(a)(16) (1997), as amended 20 U.S.C. § 1412(a)(15) (2004).

785 “The State has established goals for the performance of children with disabilities in the State that -
are the same as the State’s adequate yearly progress, including the State’s objectives for progress by
children with disabilities, under section 1111(b)(2)(C) of the Elementary and Secondary Act of 1965 [20
U.S.C. § 6311(b)(2)(C)].” § 1412(a)(15). The highlighted section of NCLB requires the same high
standards of academic achievement for all students and separate measurable annual objectives for
continuous and substantial improvement for students with disabilities. 20 U.S.C. § 6311(b)(2)(C)(i)&(v).

182

progress in the general education curriculum.”786 IDEA 2004 specifies that the IEP goals
should be academic and functional and that there must be a description of how the child’s
progress toward meeting these goals will be measured.787
3.5.2.3 — Assessments

IDEA 1997 initiated the requirements that children with disabilities participate in
state and district-wide assessments and permitted them to use accommodations where
necessary.”788 IDEA 2004 stresses that afl children with disabilities participate in state
and district assessments, allowing for the option of using accommodations or taking
alternate assessments, and it specifically references the assessments required by
NCLB.789 The change between the two IDEA versions, therefore, is not that children with
disabilities take some form of assessment but that it specifically aligns itself with
NCLB.790 In addition, IDEA 2004 adds a section on alternate assessments, which

specifies that the content and achievement standards upon which these assessments are

based must be aligned with NCLB.79'

 

786 20 U.S.C. § 1414(d)(1)(A)(i)(II)&(IV).

787 20 U.S.C. § 1414(d)(1)(A)(i)(lII).

788 20 U.S.C. § l414(d)(1)(A)(V) (1997), amended by 20 U.S.C. § 1414(d)(1)(A)(i)(vi) (2004); Tumbull,
supra note 628, at 321. IDEA 1997 directs states to develop alternate assessment guidelines for children
who cannot participate in the regular assessments. 20 U.S.C. § 1412(a)(17)(A) (1997) amended by 20
U.S.C. § 1412(a)(l6)(A) (2004).

789 “All children with disabilities are included in all general State and districtwide assessment programs,
including assessments described under section 1111 of the Elementary and Secondary Education Act of
1965 [20 U.S.C. § 631 1], with appropriate accommodations and alternate assessments where necessary and
as indicated in their respective individualized education programs.” 20 U.S.C. § 1412(a)(16). The IEP team
is directed to indicate the appropriate accommodations necessary to measure the child’s academic
achievement and functional performance on the standardized tests or the appropriate alternate assessment if
the child cannot participate in the regular test. 20 U.S.C. § l414(d)(A)(Vl).

790 Tumbull, supra note 628, at 321.

791 20 U.S.C. § 1412(a)(16)(B)(ii); 34 C.F.R. § 300.160.

183

3.6 — Analysis

This section applies the theoretical frameworks to special education assessment
policy as it is articulated in the No Child Left Behind Act (N CLB) and the Individuals
with Disabilities Education Act (IDEA). First, it discusses the usefulness and limitations
of the policy cycle model as a method to analyze the modifications to the laws by the
U.S. Department of Education (USDOE) and Congress. Second, it uses both the original
conceptual model and the Rowley free appropriate public education (FAPE) test to
examine the conceptions of equal educational opportunity in IDEA 2004.

1 3.6.1 — a Alignment of NCLB and IDEA through the Policy-Making Process

The manner in which the concerns about the participation of students with
disabilities in local and state assessment systems has been addressed is good illustration
of the ever-evolving nature of laws in the United States is. It is also indicative of the roles
Congress federal administrative agencies play in this policy development process.

Even though a law appears static in its original enactment, as many in the field
portray by continuing to refer to it by its public act number throughout its life, it is not.
Instead, laws are living documents. Following the enactment of a federal education
statute, the USDOE plays an important role as its interpreter, 792 creating a fluid process
of “give-and-take” between the original statute, the federal agency, its state and local
counterparts who, in large measure, are charged with the law’s implementation, and the
educators, parents, and students who the law effects.

The USDOE’S rule-making authority was the primary mechanism used by the

federal government to address the considerable concerns expressed by experts, parents,

 

792 Kerwin, supra note 475.
l 84

 

and educators of students with disabilities regarding their inclusion in NCLB’s
accountability regime, a program that relies heavily on standardized tests.793

Congress also took note of the challenges in implementing NCLB posed by
students with disabilities and chose to amend IDEA in 2004 reauthorization to address
some of the more significant concerns by deliberately aligning IDEA with NCLB.

As it currently stands, up to 30% of students with disabilities may participate in
NCLB’s accountability program and have their proficient and advanced scores included
in the AYP calculation. This means that USDOE officials expect 70% of students with
disabilities to be able to take and earn at least a proficient score on the regular local and
state standardized tests. This is considerably less than the 100% requirement originally
contained in NCLB. IDEA 2004 does not have a limit on participation in alternate
assessments.

The USDOE cited flexibility, experience, and developments in research as
motivating forces behind its regulatory changes to NCLB. Thus, the regulatory policy
mechanism can be considered successful in its goal of giving flexibility to Congress in
passing laws by allowing administrative agencies to tweak the details that do not work in
the field.

In one sense, this analysis of the changes to NCLB and IDEA, by examining the
formal changes in the laws through regulations and reauthorization, has demonstrated the
usefulness of the policy cycle model for highlighting a certain stage or formal action that
can be documented. USDOE rule-making under NCLB and Congressional

reauthorization of IDEA occurred and its results are evident in the text of the laws and

 

793 The USDOE has also included additional guidelines on the assessment requirements in its non-
regulatory guidance documents. See USDOE, Modified Achievement Standards, supra note 713; USDOE,
Alternate Achievement Standards, supra note 747.

185

 

 

regulations they issued. In another sense, it also reinforces the criticisms of that model
that explain policy development is not easily captured by a snapshot in time or a
conception of a clear progression from one stage to the next. There was overlap in the
stages because these laws were being implemented by state and local officials as the
federal officials were considering and adopting changes to them. There is also a limited
opportunity to identify actual practices in the field because the USDOE documents can
only be used to make inferences about how assessments for students with disabilities
were being implemented, since they consist primarily of a one-sided discussion about
what states and districts are allowed to do.794 Thus these documents represent an
idealized form of the policy that Should be implemented, not what actually is.

3.6.2 - Conception of Equal Educational Opportunity in IDEA 2004

One of the basic questions I raised in this article is whether the change in the
requirements that more closely align IDEA with standards-based accountability
principles in NCLB, alters its vision of equal educational opportunity in a manner that
enhances or detracts from the educational rights of students with disabilities.

NCLB’S primary accountability mechanism that includes all students in local and
state assessment systems has been controversial, particularly in relation to the special
education population. The significant changes in its requirements over the course of five
years demonstrate that there was a great deal of attention paid to this issue. At first
glance, IDEA 1997 and 2004 also required the students with disabilities to participate in
assessments, so the enormous concern over the issue expressed by special education

advocates was surprising. This was especially true in light of the fact that NCLB’s

 

794 The content of the rules, the comments on the proposed rules, and the nature of the questions answered
in the non-regulatory guidance provide some insight into these issues if the assumption is made that the
USDOE acted in response to parent and educator concerns.

186

primary promise was one of a higher level of educational attainment for all students and
numerous special education advocates had argued through the years that under IDEA
students with disabilities deserved a higher level of educational services and results.

Thus, the conversation about educational opportunity for students with disabilities
has proceeded down two paths. The first, centered on the purpose, structure, and text of
IDEA and promotes a View that is consistent with NCLB’S requirement of higher
attainment for all students. The second, focused on the type of educational opportunity
schools are required to provide under IDEA’S F APE provision and the U.S. Supreme
Court decision that interprets its meaning. Both arguments provide two parts to the frame
I use to analyze IDEA’s vision of equal educational opportunity. Part 1 asks: Has IDEA’s
basic level the playing field view changed into a minimal achievement view? Part 2 asks:
How should IDEA’s new accountability principles be reflected in the FAPE substantive
educational opportunity standard courts apply?

The key provisions that align IDEA 2004 with NCLB are its purpose that reflects
a desire to provide a high quality education to students with disabilities, the core
academic content requirements found in the IEP academic performance goals and
indicators that require progress in the general education curriculum, and in the inclusion
of all students with disabilities in the general local and state assessment systems, using
accommodations and alternate assessments, and the reporting of student test scores.

Although much has changed in the accountability requirements with the latest two
revisions to IDEA, the basic components upon which the educational rights of students
with disabilities were built have not. IDEA 2004 has the same mechanisms for providing

services to students with disabilities that were present in the original version of the law

187

when it was enacted in 1975. IDEA’s fimdamental guarantee continues to be that a

”795

student with a disability receive a “free appropriate public education in the form of

“special education and related services”796 devised to meet the child’s unique needs797 in
the least restrictive environment,798 consistent with the child’s written IEP.799 IDEA’s
requirement that students with disabilities be included in the general assessment systems,
even though it references NCLB’s assessments, does not limit either the number of
students who may participate in an alternate assessment or the number whose scores may
be considered for the AYP calculation.

3.6.2.1 — Does IDEA 2004 have a new vision of equal educational

opportunity?

As indicated earlier in this article, the basic IDEA framework that guarantees
educational rights to students with disabilities embodies a level the playing field approach
to equal educational opportunity because it provides additional support for students with
disabilities but does not guarantee a certain level of educational outcomes.800 IDEA 2004
retains this level the playing field View of equal educational opportunity.8°' Even though

IDEA requires access for students with disabilities to the general education curriculum

through IEP goals and indicators that are tied to common academic achievement

 

795 20 U.S.C. § 1414(a)(4).

796 20 U.S.C. § 1401(26)&(29).

797 20 U.S.C. § 1400(d).

798 20 U.S.C. § 1414(a)(5).

799 20 U.S.C. § 1414(d).

800 See Green, supra note 484, at 325; Roemer, Equality of Opportunity, supra note 491, at 1; Spring,
supra note 500, at 107.

801 The two key differences between the 1997 and 2004 versions of the law are the requirements that states
establish the same performance goals and indicators for all students with disabilities that comply with
NCLB’s AYP provisions, 20 U.S.C. § 1412(a)(15)(A)(ii), and that a_ll students with disabilities are included
in all general state and districtwide assessments, taking either the regular assessments with or without
accommodations or alternate assessments that are aligned with NCLB’s content and achievement standards.
20 U.S.C. § 1414(a)(16)(A)-(C).

188

standards for all students, particularly those specified by NCLB,802 and participation in

803 its educational guarantees are

the general local and state standardized tests,
fundamentally personal and will vary according to the needs of the individual student
because they are set out in each student’s IEP.804 Therefore, although IDEA 2004
strongly encourages higher standards and expectations for the academic performance of
students with disabilities, the same standards promoted by NCLB, they do not actually
compel that they be obtained. The IEP provisions call for students to advance toward

805 and make progress in the general education curriculum.806 While

attaining their goals
this is a much higher standard than just access to educational programs and services as
was required in the pre-1997 versions of IDEA, it does not guarantee achievement of
these things. Moreover, unlike NCLB, IDEA does not have minimal proficiency targets,
set limits on the number of students who may participate in alternate assessments and
have their scores counted towards the AYP calculation, 807 or impose consequences on
schools who do not meet the educational goals set forth in a student’s IEP. IDEA’s
enforcement mechanism is through due process complaints made on behalf of individual
students. 808 Without a common required level of proficiency for all or at least most

students, IDEA 2004 does not have a minimal achievement View of equal educational

opportunity similar to that contained in NCLB.

 

802 20 U.S.C. § 1412(a)(15)(A)(ii) specifically incorporates NCLB’s AYP definition found in 20 U.S.C. §
63 I 1(b)(2)(C).

803 “All children with disabilities are included in all general State and districtwide assessments with
appropriate accommodations and alternate assessments where necessary as indicated in their respective
individualized education programs.” 20 U.S.C. § 1412(a)(l6).

804 20 U.S.C. § 1414(d).

805 § l414(d)(A)(IV)(aa).

806 § l414(d)(A)(IV)(bb).

807 20 U.S.C. § 1412(a)(16)(C).

808 20 U.S.C. § 1415(b)(6).

189

3.6.2.2 — How should IDEA’S new accountability principles be
reflected in the FAPE substantive educational opportunity standard
courts apply?
Several commentators have argued that the new accountability requirements in
IDEA 1997 and 2004 that require heightened academic goals, progress in the general
curriculum, testing, school district accountability, and AYP calculations that include all
students, have raised the level of educational benefit states are required to provide
students under the law, making the some benefit standard articulated under Rowley no
longer viable.809
Several proposals have emerged as the proper method for resolving this dilemma
by setting a new, more rigorous standard that requires schools to offer more than a basic
floor of educational opportunity.810 One suggested solution is for all courts to adopt the
meaningful benefit standard already utilized in several federal circuitsm This standard

directs schools to plan the special education and related services provided to the child by

considering each child’s potential in order to make the educational benefit conferred

 

809 Blau, supra note 563, at 2-19; Eyer, supra note 451 at 630-37; Johnson, supra note 443, at 561;
Valentino, supra note 451, at 164-66. Courts applying the some benefit standard frequently rely on the
indicators of whether a child is advancing from grade to grade and receiving passing marks in classes rather
than directly measuring achievement of proficiency in the subject matter contained in state standards. See
Rowley, 458 U.S. at 204. The limitations of the some benefit test as a means to promote a high level of
educational opportunity for students with disabilities is found in the Rowley decision itself. The majority
focuses on access to education rather than the quality of the education received. Id at 189. It also specifies
that special educational services do not need to maximize a child’s potential. Id at 198.

810 Rowley, 458 U.S. at 201.

811 Tara Eyer advocates for courts to increase the educational benefit required to be provided so that it is
“reasonably calculated to confer measurable educational progress based on the general education
curriculum.” Eyer, supra note 451, at 634. This change would reflect the IEP requirements, initially
included in IDEA 1997, that articulate higher academic expectations for students with disabilities, Id at
631, and shift from basic access to education to progress in the regular curriculum. Id at 635.

190

meaningful.“2 A second idea is for the courts to apply the educational benefit standard
articulated by the concurrence and dissent in the Rowley decision so that schools would
be required to eliminate the effects of the child’s handicapping condition, if possible, so
they can learn in the classroom.8l3 A third proposal is for courts to utilize state education
standards, including those created for NCLB and principles from the adequacy court
decisions to define the new substantive educational benefit.814 A fourth proposed
resolution is for USDOE to formally define the level of “appropriate” education required
under the law.8 I 5
It seems reasonable for courts or the USDOE, the entities that interpret and apply
IDEA, to take note of the significant changes to IDEA in its application of the
“appropriate” portion of its FAPE provision and the test that emerged from the Rowley
decision because these provisions form an important part of the law that informs the

whole body of it and articulates the mechanisms for promoting its purpose of providing a

fiIll educational opportunity to students with disabilities.816

 

812 See Deal ex rel. Deal v. Hamilton County Bd. of Educ., 392 F.3d 840 (6th Cir. 2004); Polk v. Central
Susquehanna Intermediate Unit 16, 853 F.2d 171 (3rd Cir. 1988); Ridgewood Bd. of Educ. v. Stokley, 172
F.3d 238 (1999).

813 Andrea Valentino argues a new definition of “appropriate” should be used by courts in order to realize
IDEA’s goal of preparing students with disabilities for further education, employment, and independent
living. She advocates for an “educational opportunity,” one that she derived by combining the concurrence
and dissent of the Rowley decision. Both justices advocated for offering students with disabilities
opportunities to learn that are similar to their non-disabled peers, rather than one that only offers them
“some educational benefit.” The basic floor of opportunity stipulated by IDEA requires schools to eliminate
the effects of the child’s handicapping condition, if possible, so they can learn in the classroom. Valentino,
supra note 451, at 150-51. This change would be consistent with the language of IDEA, the heightened
procedures, and its congressional intent. Id at 165.

814 Johnson, supra note 443, at 584-85.

815 Blau, supra note 563, at 17-19.

816 Many courts have declined to do so because Congress has not specifically amended the F APE
requirement in its reauthorizations of the law. Since IDEA was passed using Congress’ spending clause
authority, changes in its requirements must be clear and unambiguous in order for states to be bound by
them. IDEAS FAPE provision has been used since the 1980s to determine the “appropriate” level of
education a student receives, so Congress must specifically change it in order for the U.S. Supreme Court’s
interpretation in Rowley to be modified. Since Congress has not done this, it must intend for Rowley’s some
benefit test to stand.

191

Although all of the proposed solutions offered by commentators, meaningful
benefit, educational opportunity, or using state academic or adequacy standards, offer
different versions of equal educational opportunity, in practice they would be consistent
with IDEA’s underlying level the playing field definition of equal educational
opportunity in large part because they would be implemented using IDEA’s IEP
framework that demands consideration of the individual needs of the child. What they
would offer students with disabilities, however, is a version of this conception of equal
educational opportunity is that closer to the minimal achievement View that is promoted
by both NCLB and the adequacy state court decisions817 or even the full opportunity View
that was advanced by Amy Rowley’s parents“8 because the educational benefit would
either have to permit the child to make meaningful progress towards IEP goals under
meaningful benefit, eliminate the effects of the disabling condition so the child has the
same opportunity to learn as non-disabled peers under educational opportunity,“9 or
offer a real opportunity to attain a basic level of mastery of state academic standards
under adequacy.820 Courts applying the some benefit standard consider a more basic
measure of sufficiency for special education and related services rather than directly
measuring achievement of proficiency in the subject matter contained in state
standards.821 Thus, using one of the proposed tests would result in a higher substantive
level of educational Opportunity, one that better reflects the type of progress towards high
academic content and achievement standards that special education advocates desire and

still retain IDEA’s fundamental consideration of and concern for the unique needs of

 

817 See Umpstead, supra note 519.

818 Bd. of Ed. of the Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176 (1982).
819 Valentino, supra note 45], at 150-51.

820 Umpstead, supra note 519, at 305, 313.

821 See Rowley, 458 U.S. at 204.

192

each child with a disability. This is true even if the standard remains as the level the
playing field conception of equal educational opportunity.

The vision of equal educational opportunity that advocates ultimately desire is
likely to be the one proposed by Justice White’s dissent in Rowley of equalized
educational opportunity if it was defined in a way that allowed for students with
disabilities to be provided the same opportunity as their non-disabled peers to achieve a
high level of academic proficiency in a manner that considers their unique needs,
abilities, and learning styles and thereby guarantees not a common level of minimal
achievement but rather a full opportunity to optimize each individual’s educational
results.

3.6.2.3 — Do Assessments Matter?

What is most interesting about the above analysis is that it barely mentions
alternate assessments. This issue, the one over which the special education battle
regarding NCLB has been fought, does not directly affect the conception of equal
educational opportunity promoted by the law. Yet clearly the issue must matter if so
much attention has been paid to it.

The concern over assessments may be representative of a deeper concern about
the continuing viability of IDEA in the shadow of growing federal influence over
education through NCLB. The federal government has been intricately involved in
guaranteeing educational opportunity for students with disabilities for over thirty years
and for students with other educational disadvantages, particularly economic challenges,
for over forty years. Under their governing laws, however, the types of educational

opportunities provided to these two groups and the rights specified have substantially

193

differed. Students with disabilities have had the guarantee that each child’s unique needs
would be considered in an educational program that was reasonably calculated to confer
an educational benefit on them as represented in an individualized education program.
Schools with large percentages of children living in poverty have been given extra money
to enhance their educational programs to close the achievement gap between them and
the rest of the educational population. NCLB extends this guarantee with greater force
and possible impact on students with disabilities by listing them as a subgroup whose
scores must be reported on the standardized assessments it requires.

In this way, NCLB possibly threatens the existence of IDEA. That is not to say
that IDEA is in any immediate danger of being formally eliminated. Its process,
procedures, and educational guarantees are well engrained in the educational landscape.
The threat from NCLB is more of an operational threat. If both IDEA and NCLB require
states to develop and schools to administer assessments that are linked to common
content and achievement standards for all students, the range of assessment and possibly
even learning alternatives for students with disabilities may be eliminated. When IEP
teams meet to craft an educational plan that considers the unique needs of each child, the
state academic content and achievement standards and assessment requirements are
required to be a prominent component of the discussion under both IDEA and NCLB.
And under NCLB, only 3 percent of all students, equating to roughly 30 percent of
students with disabilities, may take alternate assessments and have their proficient or
advanced score counted towards the AYP calculation. This requirement, which is
intended to put pressure on the schools in general and the IEP teams in particular to

include students with disabilities in the highest level of assessment they are able to take,

194

is the one that special education advocates fear will result in the loss of true individual
consideration of needs and abilities of each student with disabilities.

And so the battle for more flexibility under NCLB to develop and administer
alternate assessments to students with disabilities is one advocates view as worth
fighting. Ultimately, special education advocates are willing to accept a level the playing
field vision of educational opportunity under IDEA and work to enhance state
responsibilities under it to make it more responsive to the individual needs of students
with disabilities than assume the potential negative consequences on students with
disabilities in the comprehensive and somewhat prescriptive requirements contained in
NCLB, even though it promotes a minimal achievement vision of educational
opportunity. Instead, special education advocates prefer to characterize the new
accountability requirements in IDEA and NCLB as offering students with disabilities
greater access to the general education environment, though inclusion in the core
curriculum and testing, and requiring schools to promote an individual’s students’
success. This success, in the minds of many, would best be accomplished by enhancing
students’ rights under the Rowley FAPE test, which should be modified, in light of the
changes in IDEA and NCLB, to require schools to provide a meaningful benefit,
educational opportunity or an education that meets state adequacy standards. NCLB
should defer to IDEA and allow it to define the assessment requirements for students with

disabilities.

195

3.7 — Conclusion

3.7.1 - Policy Development: The Evolution of Assessment Options for

Students with Disabilities

In this article I employed the policy cycle model of public policy development to
highlight the iterative relationship between the No Child Left Behind Act (N CLB) and
the Individuals with Disabilities Education Act (IDEA) that has resulted in greater
alignment between the two laws and examine the resulting evolution of the assessment
requirements for students with disabilities. I have also outlined the significant formal
steps taken by the U.S. Department of Education (USDOE) and Congress to move from a
requirement that all students participate in a uniform assessment system to permitting
three forms of alternate assessments for students with disabilities.

Although including students with disabilities in a state’s formal accountability
program was first required by IDEA 1997, it was NCLB that stipulated that they take the
same standardized tests given to the general education population, allowing only for
accommodations. IDEA 1997 permitted alternate assessments. The original version of
NCLB did not mention this alternate assessment and would not allow the score on such
tests to be included in an adequate yearly progress (AYP) measure — the primary means
for determining progress and holding schools accountable under this law. This
discrepancy in the requirements of the two laws was the source of considerable
controversy in the field and the federal government acted quickly to resolve the tension
between them.

Within one month of NCLB’S enactment, the USDOE, through its rule-making

process, proposed creating alternate assessments for students with disabilities to be

196

permitted in the law’s accountability regime. They were allowed later that year. In 2003,
the USDOE passed new regulations creating a 1% exemption for students with the most
significant cognitive disabilities to take alternate assessments based on alternate
achievement standards. And in 2007, the USDOE promulgated another set of regulations
permitting up to 2% of students to take alternate assessments tied to modified academic
achievement standards. Thus, NCLB evolved from requiring all students to participate in
the general assessments based on challenging academic content and performance
standards to a total of five options, three of which involve alternate assessments, within
the course of five years. These assessment options were then also written into IDEA’s
most recent reauthorization and its regulations822

Congress’ 2004 reauthorization of IDEA incorporated some key concepts from
NCLB regarding high academic expectations for students with disabilities as evidenced
by improved educational outcomes on academic assessments. Using some language from
NCLB and references to the law itself, Congress accomplished greater alignment between
the two education laws in their similar purposes that promote high quality education for
students with disabilities, the requirement that students with disabilities be taught core
academic content, and in its assessment requirements, that also allowed alternate
assessments using alternate or modified academic achievement standards.

By examining the deveIOpment of the alternate assessment rules through the
USDOE promulgation process, it is clear that statutes are not fixed or permanent but
rather fluid laws that are responsive to the policy environment in which the
administrative agency operates. In the cases of NCLB and IDEA, the USDOE plays a

valuable role in formal rule-making and informal policy documents. It also revealed the

 

822 34 C.F.R. § 300.160(c).
197

strength of the policy cycle model as an appropriate tool for studying the actions taken by
the USDOE regarding the assessment options for students with disabilities under NCLB.
It also identified one weakness of the model, its inability to directly report on how the
resulting alternate assessments were actually implemented in the field either before or
after the changes to IDEA requirements.

3.7.2 — Conceptions of Equal Educational Opportunity

While examining the adaptations of these laws to the surrounding policy
environment was instructive as to how laws interrelate and how government entities
respond to constituency concerns, my investigation of the underlying conceptions of
equal educational opportunity proved to be the more engaging issue to emerge from
studying these two federal policies.

The quest for equal educational opportunity has been a driving force in the
educational policy of this nation since the beginning of the common school movement in
the mid-nineteenth century and it has taken different forms throughout our history.
Initially it began with a concept of equal inputs by exposing students to a common
curriculum in common schools. It shifted the goal to one that at least considered the
possibility of equality outcomes in the mid-twentieth century beginning with the U.S.
Supreme Court decision in Brown v. Board of Education and the Coleman report. The
federal government promoted educational opportunity for certain groups of
disadvantaged students through two major compensatory education programs: The
Elementary and Secondary Education Act of 1965, now known as NCLB, and the

Education for all Handicapped Children Act of 1975, now known as IDEA.

198

The main vehicle for the promotion of educational opportunity for students with
disabilities is IDEA. Its primary guarantees include the provision of a free appropriate
public education consisting of special education and related services to all students with
disabilities between the ages of three and twenty-one. This requirement was interpreted
by the U.S. Supreme Court in the 1982 case of Board of Education of the Hendrick
Hudson Central School District v. Rowley."’23 The court found that IDEA guaranteed a
basic floor of opportunity for students with disabilities through special education and
related services that were designed to offer the child some educational benefit. Since this
decision, six federal circuits recognize a higher substantive standard, one described as a
meaningful benefit, while five retain the lower some benefit standard articulated in
Rowley.824

This debate was ongoing when NCLB entered the educational scene. NCLB’s
provisions promised all students a higher level of educational performance through
rigorous academic content and achievement standards, standardized assessments, the
reporting of test results for all students and student subgroups, and consequences on
schools whose students did not perform adequately. Despite this promise, NCLB did not
receive a warm reception by the special education community. Instead, many expressed
concern that NCLB actually threatened the educational guarantees included in IDEA and
the quality of the education special education students would receive. This response was
especially interesting when the underlying conceptions of equal educational opportunity
in the two laws are considered, since NCLB arguably required a high level of

opportunity, one that called for a common level of minimum achievement from each

 

823 458 U.S. 176 (1984).
824 Aron, supra note 654, at 7.

199

child, while IDEA promoted a level the playing field view of educational opportunity
whose purpose is to reduce the effect of the disability but not guarantee a certain
educational outcome.

What the analysis in this article reveals is that special education advocates value
the individualized nature of the educational guarantee provided in IDEA through its IEP
process that demands each IEP team consider the unique needs of each child and develop
educational goals and objectives accordingly. This is true even in the face of growing
alignment between the laws. NCLB with its focus on the overall academic performance
of the school and its relevant student subgroups potentially threatens the individual
guarantees offered in IDEA by limiting student assessment options through its
requirement that only 3 percent of students, or about 30 percent of the special education
population, may participate in an alternate assessment and have their proficient or
advanced scores included in the AYP calculation. This cap, along with the language in
both IDEA and NCLB that IEP teams include students with disabilities in the general
standardized testing, and NCLB’S consequences for schools who do not meet AYP
targets, puts pressure on IEP teams to include students with disabilities in the highest
level of assessments that they are potentially able to complete.

That is why the criticism of NCLB’S alternate assessments has been so intense.
Ultimately what special education advocates desire is to retain the IDEA structure and
system but to raise the level of educational benefit required under the law, ideally to one
that would obligate schools to provide a full opportunity to students with disabilities in a
manner that would maximize their educational potential. Since this standard was

specifically rejected by the Rowley court, the current proposals suggest that the schools

200

be required to provide students with a higher substantive level of educational benefit
described as a meaningful benefit, an educational opportunity, or one that is tied to state
academic or adequacy standards.

These standards are arguably less rigorous than the minimal achievement View
promoted by NCLB where every child, except those in the 3 percent who take alternate
assessments, attains proficiency on the same state assessments based on challenging
academic content, yet they do promote a high level of achievement and are based on the
actual needs of students with disabilities because IDEA now requires the same academic
goals as NCLB and the inclusion of students with disabilities in local and state
assessment system. However, IDEA still provides each student’s IEP team flexibility in
decision-making about which assessment the student will take and sets no limits on the
number who may participate in each type. Even though this promise fits within the level
the playing field vision of equal educational opportunity, IDEA maintains of the
important pledge of an educational experience that is tailored in a way that benefits the

individual child.

201

CHAPTER 3 APPENDIX

202

APPENDIX 3.]

Different Performance Levels for Elementary Level Word Recognitionm

Table 3.3 MI-ACCESS Example

 

Grade Level English
Language Arts (ELA)
2" Grade Content
Expectations

2"d Grade82

MI-ACCESS ELA
Functional
Independence 3lrd
Grade Performance

Level Descriptors

‘MI-ACCESS ELA
Supported
Independence
Elementary
Performance Level

Descriptors

 

 

'MI-ACCESS ELA '
Participation
Elementary
Performance Level

Descriptors

 

Automatically
recognize frequently
encountered words in

print whether

Use picture-printed
word associations to
identify many common
vocabulary words,

Recognize some:
-frequently
encountered/personally
meaningfill words (e.g.,
name, address, family
members)
-functional words (e.g.,
exit, danger)

Recognize some
frequently encountered
objects and/or pictures
paired with words (e.g.,

name, survival
words/symbols).

 

 

 

encountered in including
connected text or in -persona11y meaningful
isolation. words,
-frequently encountered
words, and
-functional words.
Make progress in
automatically
recognizing the 220

Dolch basic sight words
and 95 common nouns
for mastery in third
grade.

 

 

 

 

 

 

825 This example is taken from Michigan, which has three alternate assessments.

826 MICHIGAN DEP‘T OF EDUC., MICHIGAN SECOND GRADE ELA GRADE LEVEL CONTENT EXPECTATIONS,
(Dec. 2005),

httpzl/www ' ' '9 c, "
7_178042_7.pdf.

827 MICHIGAN DEP’T 0F EDUC., MI-ACCESS FUNCTIONAL INDEPENDENCE ENGLISH LANGUAGE ARTS
ASSESSMENT PERFORMANCE LEVEL DESCRIPTORS, (June 9, 2006), http://www.michigan.gov/mde/0,1607,7-
l40-22709_28463-136385--,00.htm1.

828 MICHIGAN DEP’T OF EDUC., MI-ACCEss SUPPORTED INDEPENDENCE ENGLISH LANGUAGE ARTS
ASSESSMENT PERFORMANCE LEVEL DESCRIPTORS, (June I, 2007), httpz/lwww.michigan.gov/mde/0,1607,7-
I40-22709_28463-l36385--,00.htm1.

829 MICHIGAN DEP’T OF EDUC., MI-ACCESS PARTICIATION ENGLISH LANGUAGE ARTS ASSESSMENT
PERFORMANCE LEVEL DESCRIPTORS, (June I, 2007), http://www.michigan.gov/mde/O,1607,7-140-
22709_28463-l36385--,00.html.

I

i-.’I‘iualfiELA_Assessable_Content_Document_Gr._2-

203

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204

 

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