July 6, 2006
BACKGROUND ON CONNECTICUT'S
NO CHILD LEFT BEHIND ACT LAW SUIT
By: Soncia Coleman, Associate Legislative Analyst
You asked for background on Connecticut's No Child Left Behind lawsuit.
On August 22, 2005, the Connecticut Attorney General, on behalf of the state and its legislature, filed suit against the federal government (specifically, Margaret Spellings in her official capacity as U.S. Secretary of Education). The complaint alleges that the defendant “illegally imposed more than $50 million in unfunded mandates on Connecticut under the No Child Left Behind Act of 2001 (NCLB).
Since the act's passage, Connecticut has consistently noted that it has maintained a successful assessment scheme for over 20 years that complies with the basic tenets of the act. After completing state mandated NCLB implementation cost studies in March of 2005, the state determined that federal funding was insufficient to meet the requirements of the law in violation of a provision of the act. As implementation deadlines for the act's expanded testing program approached, the state (via Education Commissioner Betty Sternberg) submitted a number of requests to the federal government to exercise its statutory authority to waive or alter certain provisions. Namely, the state wanted to (1) maintain its existing practice of alternate year testing,
(2) wait several years before administering the test to English Language Learners (ELLs), and (3) test special education students at their instructional level rather than their grade level. The state felt these requests were supported by research and Connecticut's experience and were more cost effective. After the waiver requests were repeatedly denied, the Attorney General filed suit.
NO CHILD LEFT BEHIND ACT
The No Child Left Behind Act of 2001 establishes a regime of statewide achievement tests in reading or language arts, math, and science that states must follow in order to receive a grant under Title I, Part A of the act. The Title I grant is the largest federal grant to states and local school districts for the education of disadvantaged children. The tests the act requires are the key component of its standards and accountability framework. Test results provide the basis for measuring state, school district, and school progress toward ensuring that students meet challenging state knowledge and skill standards within 12 years. Under the act, test results are used to measure the performance of all students as a group and of each of four subgroups (major racial and ethnic minorities, students with limited English proficiency, students eligible for special education, and low-income students). Results are also used to compare school and school district performance and identify low-performing schools subject to special intervention measures.
In order to comply with the act, Connecticut was required to expand its testing program to meet the act's requirements. It had to double the frequency with which it tests students in grades 3 through 8, add science tests in two of those grades, expand its annual English proficiency testing for English Language Learners (ELLs), and test special education students at their grade level rather than their instructional level.
The act has no state or local opt-out of the testing requirements. It allows states to delay or suspend the required testing under certain conditions, including if annual federal funding to support the testing program falls below a specified level. The act allows states or local school districts (through states) to apply to the U.S. education secretary for a temporary waiver of specific requirements, including the testing requirements.
In what is known as the “unfunded mandates” provision, the act provides that:
“[N]othing in this chapter 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.” (20 U.S.C. § 7907(a))
In recognition of this “prohibition”, Connecticut passed legislation in 2005, prohibiting the use of state funds for NCLB related costs. The legislature repealed this provision during the 2006 session.
CONNECTICUT WAIVER APPLICATIONS
Over the course of several months leading up to the required implementation of certain provisions of the act, Connecticut made the following waiver requests to be allowed to:
1. conduct annual testing in alternate grades rather than every grade and to instead conduct formative testing in grades 3, 5, and 7 (tests administered multiple times during the year which are used to continuously customize instruction for each child);
2. conduct a “cohort” analysis for NCLB purposes– comparing how a group of students progress over time;
3. assess special education students at their instructional level rather than their grade level; and
4. permit ELL students three years in U.S. school systems to learn English rather than one year before applying the tests.
Below is a timeline of these requests and other relevant events as described in the initial complaint:
● January 14, 2005- the Connecticut education commissioner submitted a letter to the education secretary requesting waivers of NCLB provisions as described above.
● February 28, 2005- the requests regarding alternate year testing and ELL students were denied. According to the complaint, the education secretary made numerous statements that testing in every grade was one of the “bright lines” of NCLB that will not be waived. The education secretary requested additional information on cohort analyses and indicated that the United States Department of Education (USDOE) was considering a policy change on special education testing.
● March 31, 2005- the education commissioner renewed her alternate grade testing and ELL waiver requests.
● April 5, 2005- the Attorney General announced that he was contemplating bringing a lawsuit regarding the USDOEs implementation of the NCLB Act.
● April 7, 2005- the education secretary announced a new policy for granting waivers from special education testing requirements that allows up to 2% of those students to be tested using “modified” or alternate assessments. The education secretary indicated that states that failed to implement every grade testing would be ineligible for this waiver. Connecticut eventually took advantage of this new policy. However, this waiver fell short of the instructional level testing Connecticut was seeking and would still result in additional expenses that were not, according to the complaint, covered by federal education funding.
● April 18, 2005- the education commissioner and State Board of Education chairman met with the education secretary and deputy education secretary to discuss Connecticut's waiver requests. The deputy secretary suggested eliminating written responses in tests in grades 3, 5, and 7 and that Connecticut could eliminate its writing requirement as its third academic indicator and replace it with average daily attendance. Later than month, the commissioner provided information as to why altering the test for additional grades was unworkable and provided additional information in support of its ELL waiver request.
● May 3, 2005- the education secretary renewed her denial of the testing waiver request, suggesting that Connecticut divert federal funds from other programs to pay for additional testing costs.
● May 18, 2005- the education commissioner submitted additional information and research to support the waiver requests regarding alternate year testing, ELL students, and special education testing. On May 27, she resubmitted these waiver requests in the updated amendments to Connecticut's accountability plan.
● June 1, 2005- the State Board of Education tabled a motion to support a possible lawsuit by the Attorney General.
● June 20, 2005- the ELL and special education waiver requests were denied again.
● June 28, 2005- the legislature passed a bill authorizing the Attorney General to bring a lawsuit on behalf of the legislature to enforce NCLB. The governor signed the legislation on July 21, 2005.
● August 22, 2005- the Connecticut Attorney General filed a complaint in federal District Court.
CAUSES OF ACTION
In the initial complaint, the State of Connecticut and the legislature allege three different causes of action for which they seek declaratory and injunctive relief.
First, the plaintiffs allege that the defendant violated the act's unfunded mandates provision by requiring Connecticut to “comply fully with USDOE's rigid, arbitrary, and capricious interpretation of the NCLB mandates” despite insufficient funding and the education secretary's waiver authority.
Next, the state alleges that, by requiring the state to comply with USDOE's rigid, arbitrary, and capricious interpretation of the NCLB mandates despite insufficient funding and the education secretary's waiver authority, the defendant is exceeding her authority under the Constitution's Spending Clause and violating the Tenth Amendment by mandating, directing, and/or controlling the allocation of state or local resources and coercing the state to take actions that Congress could not otherwise compel it to take.
Finally, plaintiffs allege that the defendant's decision to deny the waiver requests violates the Administrative Procedures Act (APA).
On December 2, 2005, the USDOE responded to the complaint with a motion to dismiss, which was supported by the NAACP. A review of the motion reveals a disagreement between the state and the USDOE about the interpretation of the “unfunded mandates” provision of the act. After oral arguments, which were held on January 30, 2006, and post-oral argument briefs, the state filed two amended complaints. The first, filed on February 28, 2006, provides additional support of the state's contention that the federal government has under funded Connecticut's NCLB-mandated annual assessments. The federal government renewed its motion to dismiss on March 30, 2006. Oral arguments were held on April 28, 2006 via telephone. On June 6, 2006, the state filed a second amended complaint to, according to the Attorney General, address new arguments raised by the education secretary in her post-oral argument briefs (specifically, that the denial of plan amendments would afford a state the opportunity for a hearing, and any denial would be subject to APA review). This complaint adds an administrative appeal for the denial of the state's plan amendments, updates the current status of state law and facts, and clarifies certain factual allegations.