School District v. Secretary of the United States Department of Education

SCHOOL DISTRICT OF CITY OF

PONTIAC, al., et Plaintiffs-

Appellants,

v.

SECRETARY OF the UNITED STATES EDUCATION,

DEPARTMENT OF

Defendant-Appellee.

No. 05-2708.

United States Appeals, Court of

Sixth Circuit.

Argued: Nov. 2006.

Decided and Filed: Jan. 2008. Chanin, Bredhoff H. Robert

ARGUED: D.C., Appel- Kaiser, Washington, & Klein, lants. B. Alisa United States De- ... mandate a State or subdivision Justice, partment Washington, D.C., thereof to any funds or incur any Appellee. ON BRIEF: Robert H. Cha- costs not Act,” for under nin, O’Brien, Margaret Alice 7907(a), Jeremiah A. U.S.C. Plaintiffs filed suit Collins, Kaiser, Bredhoff & Washington, district court against Secretary of Ed- D.C., Pollard, Dennis R. Firm, Thrun Law seeking, ucation among relief, other Hills, Bloomfield Michigan, for Appellants. judgment declaring that they need not Klein, Alisa B. Stern, Mark B. United with comply Act’s where Justice, States Department of Washington, federal funds do not cover the increased D.C., Appellee. Joseph Miller, M. of compliance. costs The district court Pennsylvania Department Education, concluded, however, that Plaintiffs must Harrisburg, Pennsylvania, Kari Krogseng, Act’s re- Harrison, Remcho, James C. gardless Johansen & federal-funding shortfall Purcell, Leandro, California, San Gene C. and accordingly granted Secretary’s Luman, Lange, Lange, Thomas & McMul- motion to complaint dismiss the for failure len, Washington, D.C., Richard Blumen- to state a claim upon which can relief thal, Attorney General of the granted. State of Con- Because statutes enacted under necticut, Hartford, Connecticut, for Amici the Spending Clause of the United States Curiae. Constitution provide must clear notice to the States of their liabilities should Before: COLE and McKEAGUE, accept decide to federal funding under Judges; BREEN, Circuit District Judge.* statutes, those and because we conclude that NCLB fails provide clear notice as COLE, J., opinion delivered the of the to who bears the additional of compli- court, BREEN, in D.J., which joined. ance, we judgment REVERSE McKEAGUE, 273-84), (pp. J. delivered a district court and REMAND this case for separate dissenting opinion. further proceedings consistent with this opinion. OPINION COLE, JR.,

R. GUY Judge. Circuit I. BACKGROUND This case requires tous decide a funda- A. The No Child Left Behind Act mental question of federal versus state funding under the No Child Left Behind 8, 2002, On January President George (“NCLB” Act of Act”), 2001 or “the 20 W. Bush signed law into the No Child Left §§ U.S.C. 6301-7941. Plaintiffs-Appel- Behind Act. The Act—a comprehensive, lants are school districts and education and quarters in some controversial, edu associations that receive federal funding cational reform —amended the Elementary in exchange NCLB for complying and Secondary Education Act 1965 with the Act’s various require- educational (“ESEA”), 89-10, Pub.L. No. 79 Stat. 27 ments accountability (codified measures. amended at 20 U.S.C. Based on the (2003)). so-called “Unfunded Man- §§ 6301-7941 See Connecticut v. Provision,” dates provides that Spellings, (D.Conn. F.Supp.2d 459, 453 468 in “[njothing this Act 2006). shall be construed The ESEA targeted funding to * Breen, nessee, Honorable J. Daniel United States sitting by designation. Judge District for the Western District of Ten-

255 2005-06, authorized example, schools, and its low-income students I, Title appropriations billion “any $22.75 effects overcoming included purposes for the billion A, compared $14.1 Part George v. discrimination.” racial past combined. of NCLB parts 26 remaining Cir.1971); (5th 148, 151 F.2d O’Kelly, include I, purposes stated A’s Part 1338, Title Wheeler, F.2d v. Barrera accord of low- needs meeting “the v. Cir.1973); (8th United Jef- highest- in our Nation’s achieving children Educ., 372 F.2d County Bd. of ferson schools, English proficient limited poverty peri- Cir.1966). was (5th The ESEA children, children children, migratory over amended odically reauthorized children, neglected disabilities, Indian decades. the next few children, young children delinquent iterations, ESEA prior contrast assistance.” reading need flexibility of increased “provides NCLB 6301(2). § achieve- student accountability for funds, A, I, Part NCLB to Title addition 147 parents.” for options and more ment in- programs, other numerous establishes (state- S13365, 13366 Rec. Cong. young chil- for initiative literacy cluding a Act focuses The Burning). of ment Sen. B); (Title I, Part families poor and dren on the narrowly funding more federal chil- of the education for services special accountabil- demands and students poorest C); (Title I, Part migrant workers of dren conse- schools, serious with ity from “highly all teachers requirements aca- meet that fail schools quences A); instruc- (Title II, Part and qualified” Id. at requirements. demic-achievement limited with for children English tion Burning, (statements Sens. of 13366,13372 III). (Title com- Plaintiffs’ ability English may States Landrieu, Kennеdy). and require- the educational on focuses plaint and in NCLB participate choose I, Title funding provisions ments and accompany funds the forego A. Part funds, they accept Act. If do Ti- funding under qualify requirements. To must first submit A, must (“For I, States any State Part § tle See, e.g., U.S.C. developed by plan,” a Secretary “State part, under grant a receive desiring to in con- education department submit state agency shall the State educational districts, parents, ....”) school (emphasis sultation Secretary plan a to the Id. personnel. teachers, other F.Supp.2d and Spellings, added); also see “demon- 6311(a)(1). plan must A State § (“In for federal return at 469 challeng- adopted has the State imposed on Act, strate under and chal- standards content of edu- academic regime ing comprehensive states achievement academic accountability lenging student and assessments cational to measure against measures.”). standards” stu- the State’s achievement academic NCLB, “Im- A, titled I, Part Title 6311(b)(1)(A). stan- Id. dents. by Lo- Operated Programs Basic proving uniformly appli- must be plan dards continues Agencies,” Educational cal public all State’s to students cable original objectives pursue reading, cover at least schools, must and ed- the most extensive imposes and ESEA Id. skills. science math, and participating on ucational 6311(b)(1)(C). districts, likewise and school States dis- develop, school also must ap- of federal amount largest provides to de- administer, assessments must tricts For States. participating propriations termine students’ levels of achievement [AYP],” failure to make or instituting an plan 6311(b)(2)(A). under standards. Id. entirely new curriculum. Id. If after a full These assessments must be able to show year of corrective action a school has still the percentage of achieving profi- students AYP, not made the district must restruc- ciency among “economically disadvantaged ture the school entirely; options for re- students,” major “students racial and structuring include “[r]eopening the school ethnic groups,” disabilities,” “students with public as a school,” charter replacing the and “students with English limited profi- majority staff, or letting the State’s ciency.” 6311(b)(2)(C)(v)(II). Id. department of education run the school Schools districts are responsible for directly. 6316(b)(8)(B). §Id. making “adequate yearly progress” (“AYP”) With enumerated exceptions, assessments, on these meaning NCLB “the Secretary may that a minimum percentage students, waive stat- utory both or regulatory overall and in requirement each subgroup, ... attains for a proficiency. 200.20(a)(1). C.F.R. educational agency, local educational agency, tribe, Indian through school Failure of a school to AYP trig- make local educational agency, that ... receives gers I, other of Title Part A. funds under a program authorized If a school fails to make AYP for two 7861(a). Act.” § 20 U.S.C. years, consecutive it must be identified by the local agency educational for school im- requires also that States use fed- provement. 6316(b)(1)(A). eral funds made available under the Act Among other things, a school improve- “only to supplement would, the funds that ment status must students, inform all of its of funds, absence such Federal be including those have who been assessed as made available from non-Federal sources proficient, are permitted to for the education pupils of participating any transfer to school within the district programs assisted under part, this and not that has not been identified for school supplant to such funds.” 20 U.S.C. improvement. 6316(b)(l)(E)(i). Id. 6321(b)(1). is, That States school and school must develop also a two-year plan districts continue responsible to be for the setting forth extensive measures to im- majority of the funding public for edu- prove performance, student including fur- cation and the funds distributed under Ti- ther education for teachers possible and tle I should be only used to implement before- or instruction, after-school or sum- I Title programming, not as a substitute to mer §§ instruction. 6316(b)(3)(A)(iii), Id. the funds that are alreаdy being used for (ix). general programming.1 If a school does not make AYP after two years full improvement However, of status, it while Plaintiffs recognize that ... “identified] for the majority corrective action.” of the funding for education 6316(b)(7)(C)(iv). Id. Corrective action continues to come from state and local significant involves changes, sources, such as re- the Plaintiffs contend that NCLB placing teachers who are “relevant to the does not require them spend to money the 1. Contrary to the dissent's contention that cally come from state local and sources. In- victory by the stead, Plaintiffs in this will case result argue only Plaintiffs that they should in a change fundamental in this nation's fund- required not be to incur additional education, ing scheme for the obligations Plaintiffs do not necessary comply with —those argue that the by funds distributed NCLB are NCLB that would not be incurred absent the a substitute for those funds that have histori- attempt State's compliance NCLB. As- Education the National Appellants the on sources local and state drawn ed- (NEA) NEA-affiliate and ten required sociation as created programs additional Edu- the Connecticut associations: is ucation of case the heart At NCLB. by Association, Illinois Education the cation the “Un- to as referred 7907(a), often Asso- Education Association, Michigan the Plain- Provision,” which Mandates funded Association, Education ciation, Ohio not they need provides argue tiffs Association, the Reading Education where Act’s comply with Association, Indiana the addi- Education Utah cover funding does Association, the Texas re- those Teachers State complying of costs tional Association, NEA-New “Pro- is entitled Teachers Section quirements. NEA. use the Vermont and and Hampshire, government Federal on hibitions funds,” subsection Federal United suit brought Plaintiffs follows: provides Dis- the Eastern Court District in this Nothing prohibition. General Secretary, against Michigan trict to authorize construed Act shall Act 7907(a), §on based alleging, Gov- Federal emplоyee or officer districts school require does not direct, control mandate, or ernment educational with NCLB or agency, State, local expenditure require doing so would instruc- curriculum, program school’s the addition- cover funds to local state and re- or local of State tion, allocation or (See, e.g., Plaintiffs compliance. al costs any sub- or a State sources, or mandate simply (“Plaintiffs’ position 6Br. Reply thereof division states require may not Secretary incur man- actions take districts school Act the states the NCLB dated added). 7907(a) (emphasis ab- 20 U.S.C. not undertake would districts school Secretary of that former mandates, doing note so Plaintiffs NCLB’s the sent that explained has Paige Rod districts Education or school the states require would prohib- bill that in the language is not any costs “[t]here incur or any funds spend ‘to paid not is that anything (alteration ”) requiring its NCLB].’ [the for paid (“JA”) (quoting (Joint Appendix in the alleged complaint The original).) in for.” 2003) (emphasis of Dec. Paige statement re- ambiguous the Act alternative added).) re- are districts school whether garding funds, their own spend to quired History Procedural B. there- would requirement a such imposing are mentioned, Plaintiffs-Appellants As Spending Clause fore violate associations. and education districts .school Constitution. States United are Pontiac districts school eight The fol- years alleged Plaintiffs Independent District, Laredo School NCLB, Congress the enactment lowing School Town District, Leicester School dis- school provided has not Dis- Elementary School District, Neshobe com- funds to sufficient School, tricts with High Valley Union trict, Otter example, for For Act. fully with the District, Sudbury ply Town School Pittsford fiscal to year from fiscal years five District, Whiting Town School Town appropriated $30.8 2006, Congress year Su- Northeast Rutland District. School grants I for Title less dollars billion eleven Union, contains which pervisory in it authorized than districts school Plaintiff-Appel- districts, a also school a de- 27.) sought (JA Plaintiffs NCLB. Plаintiffs- association education The lant. claratory judgment explained, to the effect court “that could not [require school are “states and districts not re- States or school spend districts to any quired spend any non-NCLB funds to com- funds or incur mandates, Act], ply with and that under this which obviously has comply Id., with the by passing failure to NCLB man- done the NCLB Act.” 3149545, *4, provide does dates for this reason a WL 2005 U.S. Dist. LEXIS withholding (emphasis original). basis for federal funds at *11 words, otherwise entitled under other court read district (JA 67.) merely prohibit NCLB.” Plaintiffs also federal offi- sought injunction prohibiting employees cers and imposing Secre- from re- tary “withholding quirements from by states and that were not authorized school districts federal funds to which the Act on States and school districts. they are rejected entitled under NCLB because The court argu- district Plaintiffs’ of a failure to with the mandates of ment compliance excuses the NCLB that is attributable to refusal with impose the Act that non-NCLB funds to achieve such additional costs on the States not funded (Id.) compliance.” federal government. appealed. Plaintiffs

The district court dismissed the com- plaint under Federal Rule of Civil Proce- II. DISCUSSION 12(b)(6)

dure for failure to state a claim upon granted. which relief can be A question threshold is whether part district court focused on the first this case is us. properly Although before 7907(a), which, clarity, we restate parties litigated standing the district full below: court, Plaintiffs which concluded that had

General prohibition. Nothing standing, neither party has addressed the Act shall be construed to authorize an appeal. must, however, issue on We ad employee or of the Federal Gov- standing dress question, where it is in even officer mandate, direct, ernment to or control a if the parties have not raised the issue. State, agency, local educational Constructors, Mineta, v. Adarand Inc. curriculum, school’s program of instruc- 103, 110, U.S. 151 L.Ed.2d tion, or allocation of State or local (2001) (“We re- 489 are to obliged examine sоurces, any or mandate State or sub- standing sponte sua standing where has spend division thereof to funds or below.”). erroneously been assumed Ac incur not for under this cordingly, we first address whether Plain Act. standing, tiffs have and then—after an swering question in the affirmative— added). 20 (emphasis they conclude have stated a claim “[b]y The court including concluded that upon which can granted relief be on based of,’ employee the words ‘an officer or Con- in light of the Supreme Court’s gress clearly [merely] prohibit meant to Spending jurisprudence. Clause and employees impos- officers additional, ing requirements, unfunded be- Standing A. yond for in provided those the statute.” Dist. Spellings, Sch. Pontiac v. No. 05- question We review de novo of CV-71535, 3149545, *4, WL standing. Sandusky 2005 at 2005 of County Democrat 29253, (E.D.Mich. Blackwell, U.S. Dist. LEXIS at *12 ic Party 565, v. 387 F.3d 573 2005). 23, (6th Cir.2004). mean,” Nov. not “[Plaintiffs, “This does parties as the

259 no need to standing, have there is consider asserting jurisdiction,” now Plain establishing Da the education association standing. of whether the burden See, Cuno, 332, standing. e.g., U.S. also have Clinton imlerChrysler Corp. v. 547 tiffs York, 417, 431, 1854, 1861, 589 118 164 L.Ed.2d v. New 524 U.S. City S.Ct. 126 of (2006). (1998); 2091, re satisfy the constitutional 141 L.Ed.2d 393 To S.Ct. . 714, standing, 721, quirement Synar, of 478 106 Bowsher v U.S. (1986). (1) 3181, 583 Addi S.Ct. 92 L.Ed.2d it has suffered plaintiff must show (a) whether tionally, we need address in fact” that is concrete “injury (b) alleged inju im- or Plaintiff school districts’ other particularized and actual standing. minent, conjectural hypothetical; to establish ries sufficient EPA, Inst., (2) fairly Energy is traceable to the Inc. v. injury See Nuclear (D.C.Cir.2004) defendant; 1251, (finding challenged action 373 F.3d merely where, likely, opposed alleged inju although is one standing will re- injury that the speculative, ry might not occur “for thousands aby favorable decision. oc years,” injury allegedly dressed would another soon). very cur Earth, v. Laidlaw Friends Inc. Servs., Inc., 167, 180-81, 528 U.S. Envtl. Injury in Fact 1. (2000) (cit 693, 145 L.Ed.2d 610 Lujan Wildlife, 504 ing v. districts, and the Defenders of Plaintiff school 560-61, U.S. S.Ct. union, they must supervisory allege that (1992)). injury suffered L.Ed.2d 351 pay for spend state and local funds protected a legally must be “an invasion of compliance: Hays, v. interest.” United States na- of the multi-billion dollar Because 737, 743, L.Ed.2d 635 S.Ct. NCLB, and funding shortfalls of tional (1995). tripartite stаnding require This Secretary] by [the the insistence under NCLB. applicable to claims ment fully all comply ... districts school Dep’t v. Ctr. Law & Educ. See upon imposed the NCLB mandates (D.C.Cir.2005) Educ., 1152, 1157 396 F.3d if NCLB funds that them even 560-61, 112 S.Ct. (citing Lujan, 504 U.S. for such receive are insufficient 2130). had compliance, ... school districts have Here, complaint was because a substantial and will have pleading stage, at the the as dismissed non-NCLB funds amount of to the standing confined sessment mandates, diverting those with those complaint. “At allegations important from other stage, general allegations factual pleading pro- priorities, such as programs and resulting from the defendant’s injury students, talented grams gifted suffice”; required more is may conduct music, art, languages, foreign courses summary judgment for a motion defeat ‍​​‌​‌‌‌‌‌​​​​​​‌​​‌​‌​​‌‌‌‌​‌‌‌‌‌​​​‌‌‌​‌​‌​​‌‌‌‍non-NCLB sub- computers, and other a on merits. yet more for decision efforts, and size reduction jects, class 561, 112 S.Ct. 2130. Lujan, 504 U.S. activities. extracurricular (JA 61-62.) below, allege districts also the Plaintiff The As discussed re- NCLB they do not with all require the three school districts meet including those whose allega quirements, standing based on their ments for funding, “face the districts local exceed NCLB they spend must state and tion that Secretary] fed- withholding [by the compliance. NCLB Since funds to otherwise eral funds in this action has at least one Plaintiff (JA entitled 65.) under the NCLB.” Addi- funding and will Instead, others not. un- tionally, the districts claim that inadequate NCLB, der departments state of education federal funding has caused low “shall” rates allocate federal NCLB funds to student proficiency on counties standardized tests. school districts based on for- provided mulas in NCLB and approved by

The current Secretary has consistently the Secretary. § 6333(a)(3). maintained that school districts must com- Thus, “injury this case ... does not ply with NCLB requirements even if they turn on independent actions of third must spend non-federal funds to do so. parties,” but on NCLB’s require- that, Plaintiffs contend based on 20 U.S.C. ments, which dictate the quantum of fund- 7907(a), NCLB does require compli- ing provided to each school district. Clin- ance beyond that for which federal funds ton, 19, U.S. at 431 n. 118 S.Ct. 2091. pay. will Plaintiff districts allege that the To the extent the funding received by Secretary’s insistence that school districts Plaintiff districts under NCLB is insuffi- comply fully with NCLB has already cient defray the cost compliance forced Plaintiffs to state and local NCLB requirements, the districts have funds on NCLB and will sustained a cognizable injury in fact. require continue to expenditures such the future. Because injury has al- 2. Traceability ready occurred and is ongoing, it is con- The requirement that Plaintiff districts crete and actual. spend non-federal funds to comply with Moreover, alleged ongoing need NCLB is also fairly traceable to the chal- Plaintiff districts to spend non-federal lenged action of the Secretary. The Sec- funds to comply with NCLB requirements retary interpreted has NCLB to mean that “ is not dependent on the hypothetical ac- a ‘[i]f state decides to accept the federal tions of “decisions made the appropri- funds [offered under NCLB], then it’s ate authorities, [state] who are not parties required to implement the law in its en- to this case.” Seldin, Warth v. 422 U.S. (JA tirety.’” 21 (quoting Rodney Paige, 490, 509, 2197, 95 S.Ct. 45 L.Ed.2d 343 Secretary, U.S. Dep’t Educ., Remarks (1975) (holding that city of Rochester tax- (Mar. National League 2004)) Urban 25, payers could not sue the town of (alterations Penfield in original).) Thus, the Secre- theory on the zoning Penfield’s prac- tary has granted waivers of NCLB tices would increase taxes, Rochester be- based on the in- cause Rochester was not party). is, That sufficiency of funding.2 Therefore, NCLB, States do not have the dis- Plaintiff districts allege, they have spent cretion to decide that in the event of a non-federal to comply with NCLB federal-funding shortfall some districts will requirements. If the Secretary were not continue to receive previous their level of enforcing compliance with require- 2. Due to the Secretary’s rejection uniform funds); cation Kyne, Leedom v. requests waivers, allege Plaintiffs that “it 3 L.Ed.2d (pro- would be futile plaintiff for the school dis- viding a exception narrow to the exhaustion tricts (JA to ask” 22-23.) for waiver. requirement); Spellings, 453 F.Supp.2d at Secretary does not dispute a request 485 (requiring plaintiff that a challenging futile, would be party neither has ad- NCLB exhaust first). administrative remedies dressed the exhaustion of administrative rem- Therefore, we will not signifi- address the edies. See 20 (providing 1234d cance of the failure to exhaust such remedies opportunity for an administrative hearing be- stage at this litigation. in the fore Secretary withholds federal edu-

261 F.Supp.2d 453 8, 1; Spellings, I, § cl. see funds do not federal when even ments to set power ei- broad “Congress would has 469. school districts at compliance, all, funds at these spend federal not have it disburses ther on which the terms on other spend them able to be or would Arlington Cent. the States.” money to im- — they believe are initiatives Murphy, v. Educ. Bd. Dist. Sch. of portant. 2459, 2455, 165 —, 126 S.Ct. U.S. v. Dakota (citing South 526 L.Ed.2d Redressability 3. 2793, 203, 206-07, Dole, 107 S.Ct. 483 U.S. must injury districts’ Plaintiff Finally, (1987)). Con when “[B]ut 171 97 L.Ed.2d decision. a favorable by redressable ac to a conditions State’s attaches gress relief, de- seek a Plaintiffs Among other funds, the conditions of federal ceptance that “school districts judgment claratory ” (cit Id. ‘unambiguously.’ out must be set non-NCLB required Hald v. Hosp. Sch. & ing Pennhurst man- the NCLB comply with funds to 1531, 1, 17, 67 erman, 101 S.Ct. 451 U.S. 67.) (JA judgment would Such dates.” (1981), Educ. v. Bd. L.Ed.2d 694 of requiring Secretary from forbid 26, 176, n. 102 S.Ct. 458 U.S. Rowley, funds on of non-federal expenditure (1982)). Legislation 3034, L.Ed.2d 690 redressability re- This satisfies NCLB. “ power spending ‘the enacted quirement. contract,’ and of a nature much in the That a Claim Plaintiffs Have Stated B. ‘federally im therefore, bound to be They For the Addi- Are Not Liable conditions,’ recipients of posed Compliance With of tional Costs ‘voluntarily and accept them funds must Requirements NCLB Pennhurst, 451 (quoting Id. knowingly.’” have Plaintiffs that conclude We 1531). cannot 17,101 “States S.Ct. U.S. at support In of under NCLB. a claim stated of conditions which knowingly accept conclusion, forth we first set they are ‘unable or which are ‘unaware’ governing landscape Spending Clause ” Pennhurst, 451 (quoting Id. ascertain.’ that requirement matter, on the focusing 1531). insisting “By U.S. at Spending enacted under legislation voice,” a clear speak with of to the States clear notice provide Clause “to ex enables States Court Supreme We legislation. under that liabilities their of cognizant knowingly, choice their ercise terms, NCLB, by its then conclude participation.” their consequences the States’ clear notice provide fails to 1531. Pennhurst, at S.Ct. to com costs incur additional obligation to where Con Moreover, instances “in those addi We requirements. Act’s ply with the fund cer the States has intended gress history legislative that the tionally explain receiv a condition is clear. tain this notice entitlements suggest that does not capable funds, proved the Defendant has Finally, note even ing we 17-18, view expressed a previously in this matter Id. explicitly.” so saying co funding provision of the contested 1531. S.Ct. that Plain interpretation incides with ap- Pennhurst, Court Supreme urge here. tiffs to conclude principles these plied Developmental- Un- Requirement participating 1. Clear-Notice Rights Clause Spending der the and Bill ly Assistance Disabled §§ 6000- (“DDA”), 42 U.S.C. Act of un Congress enacted Const, to assume required were art. U.S. Spending Clause. der the providing certain treatment terms,” services to clear by, example, using the mentally 5, disabled citizens. term 23, conditioned. Id. at 101 S.Ct. 101 S.Ct. 1531. The DDA provided finan- 1531. section, This “bill of rights” “in cial to assistance participating States to contrast, marked way no suggested] aid in creating programs them to care for grant that the of federal funds ‘con- [was] mentally 11, treat the disabled. Id. at ditioned’ on a State’s funding rights the 101 S.Ct. 1531. The DDA provided also a described therein.” Id. The Court further variety of conditions for the receipt of noted that the Federal Government had no funds, such as that the States sub- authority under the DDA to withhold mit a plan to evaluate the provid- services funds from States failing ed under the DDA Secretary to the of the with this rights” “bill of section. Id. Ac- Department of Health and Human Ser- cordingly, that section could “hardly be vices. Id. at 101 S.Ct. At 1531. the a considered ‘condition’ of grant the heart of the case was the DDA’s “bill of federal funds.” Id. The Court also ex- rights” provision, provided that plained the that funds Congress provided mentally disabled right citizens a “have to to Pennsylvania under the DDA were appropriate treatment, services, and habili- “woefully inadequate to meet the enor- tation for such disabilities” provided to be mous financial burden of providing ‘appro- “in setting the that is least restrictive of priate’ treatment in the ‘least restrictive’ the person’s personal liberty.” Id. at setting.” Id. at 101 S.Ct. 1531.' This 6010). (quoting § The confirmed that “Congress must have had a plaintiffs, certain disabled citizens of Penn- purpose limited in enacting” provision (a sylvania DDA), participant sued because Congress “usually makes a far their state-owned institution to enforce more substantial contribution defray is, “rights,” these compel Pennsyl- costs” when it “imposefs] affirmative obli- vania for the costs of these services. gations on the States.” Id. “It com- defies Id. sense,” mon concluded, the Court “to sup- Supreme The held, however, Court pose that Congress implicitly imposed this the foregoing language in the DDA’s “bill massive obligation on participating of rights” provision did not create enforce- States.”3 Id. able obligations on the State. The Court

explained Court reiterated that provision’s terms, “Congress express must “when clearly viewed the context its intent to impose of the more specific provisions conditions Act, grant on the represent federal funds so general statements of States can policy, knowingly decide newly legal created 22-23, duties.” whether or not Id. at to accept those funds.” Id. 101 S.Ct. 1531. The canon,” Court also “That noted that continued, Court “ap- “plain Act’s language” plies supported this with greatest where, here, force view. It stated that “[w]hen in- potential State’s obligations under the Act impose tended to conditions grant on the are largely indeterminate.” Id. “The cru- funds,” of federal inas other sections of cial however, inquiry, is not whether a DDA, proved “it capable of doing so in State knowingly would undertake that obli- case, 3. In this dispute Plaintiffs do not Dissenting Op. NCLB.” at 275. Plaintiffs Congress did clearly place intend to argue condi- that this silence cannot be taken as a grant However, tion on of federal funds. clear statement that govern- States and local notes, as the dissent "there is no mention of ments required expend would their own compliance anywhere cost of the text funds to cover shortfall federal funds. princi- reaffirmed Pennhurst’s The Court spoke so Congress but whether gation, their notice to say that the clear fairly ple requiring can clearly that we legislation, choice.” and the an under such obligations could make informed added). (emphasis principle 101 S.Ct. how that explained Id. at Court further “Congress that Thus, concluded the Court stated at 2459. The Court applies. Id. to clear notice providing fell well short the the IDEA from it “must view that accepting funds they, by that the States who is en- of a state official perspective obligated Act, would indeed the under deciding whether process gaged provi- rights” “bill of with” the to and accept funds should IDEA the State Id. in the DDA. sion those funds.” go that obligations the princi- recently applied these a “must ask whether such The Court The Id. Court where a similar Arlington, in again that ples clearly understand would state official the Individual under question arose Act is the obligations of the one of the (“IDEA”), 20 Act in Education Disabilities par- compensate prevailing obligation to IDEA, enacted The 1400-1482. “In Id. other expert fees.” ents for Clause, fed- “provides Spending under the continued, must ask words,” “we the Court agencies and local to state eral funds assist notice IDEA furnishes clear the whether and with disabilities educating children in in this liability at issue the regarding funding upon a State’s conditions such case.” Id. proce- goals extensive compliance with the Court principles, these Applying (in- at 2458 Arlington, dures.” (“In IDEA Id. the text. first considered omit- marks and citation quotation ternal provides the IDEA considering whether ted). Arlington in dispute to the Central text.”). notice, the begin with a court we that clear provided the was that IDEA “ time that it “stated attorneys’ fees as noted has reasonable The Court ‘may award ” prevail that parents presume who courts must again of the costs’ that part Id. at under the Act. it means brought an action in a statute says what legislature 1415(i)(3)(B)). 20 U.S.C. (quoting says there.” in a statute what and means omitted). (citation then ex- The Court Id. under Arlington sued plaintiffs The provi- that, the IDEA fee although plained require of their son IDEA on behalf the of ‘reasonable for an award “provides sion of Education to Arlington Board the fees,’ does not provision attorneys’ for tuition private-school their son’s IDEA acceptance of even hint at years. Id. 2457. specified school reimbursing court, responsible for makes State in the district prevailed plaintiffs rendered parents affirmed. Id. services prevailing Circuit and the Second the Court re- Accordingly, the prevailing parents, plaintiffs As Id. experts.” 2458. that, the aforementioned be- sought argument plaintiffs’ then fees jected the services of for the to “costs” provision amounted expert fees cause throughout them assisted provi- consultant who because proceedings IDEA Id. proceedings. IDEA attorneys’ fees for reasonable sion allowed costs,” were plaintiffs of the part “as question “resolution Noting that at 2459-60. expert fees. Id entitled fact by guided case is presented provision explained The Court the IDEA pursuant enacted Congress clear notice provide fails to “certainly Clause,” Supreme Spending Spending required under plaintiffs held that ultimately Court at 2460. Id. Id. Clause.” expert these fees. were not entitled explained The Court then precise opposite other what told us provisions of supported intended.”). the IDEA this example, view of the text. For the IDEA provisions

had detailed to еnsure that at- 2. NCLB’s Lack Clear Notice Re- torneys’ reasonable, fees were but lacked garding State Funding Obligations comparable provisions regarding expert a. Text the Act Additionally, fees. Id. the Court conclud- ed that its was holding consistent with Turning case, to the present Arlington prior addressing cases the definitions of instructs that we must view NCLB from costs and Id. 2461-62. at fees. perspective the of a state official who is unswayed

The Court remained in this engaged process in the of deciding wheth- conclusion light even in of evidence that er the State should accept NCLB funds precisely intended the opposite obligations and the accompany that those interpretation is, that States must words, —that funds. In other we must determine compensate prevailing parents expert for whether NCLB furnishes clear notice to fees. plaintiffs explained that Con- State, the official that her if it chooses to gress approved a Conference Report stat- participate, will have to for whatever ing that “[t]he conferees that intended] additional costs of implementing the Act ‘attorneys’ the term part fees as of the are not covered the federal funding costs’ include expenses reasonable provided for Or, under the Act. as one ” expert witnesses .... Id. at 2462 fees of might phrase question, the whether that 5) (quoting 99-687, H.R. Rep. Conf. No. state official clearly would understand that added). (emphasis “No Repre- Senator or one of the obligations State’s under the sentative any voiced opposition to this obligation Act is the incur paid costs not statement preceding discussion the under the Act. Because ex- vote on the Report Conference last —the plicitly provides that “[njothing in this Act vote on the bill before it was sent to the shall be construed to ... mandate a State J., President.” Id. at (Breyer, dis- any or subdivision thereof to spend any senting) (emphasis original). The Court funds or any incur paid costs not for under explained that, “[u]nder these circum- Act,” this a state would clearly official not stances, everything where other than the understand that obligation to exist. To the legislative history overwhelmingly sug- contrary, text, based on this a state official gests expert may not fees be recov- plausibly could contend she under- ered, legislative history the simply is exactly stood the opposite her State —that enough.” Id. at 2463. “In a Spending need not comply with case, Clause key is majority not what a for which falls short. of the Members of both Houses intend but That however, is not to say, what the States are clearly told regarding (dis- Secretary’s interpretation go conditions that of the along with Act the ac- below) ceptance of those cussed more funds.” Id. detail (emphasis frivolous. added). Indeed, legislative therefore, This history, perhaps Secretary’s view of was not provide “sufficient the text requisite ultimately correct. But fair notice” that only bore relevant liability question States this here is whether the under the IDEA. provides But see id. at Act clear notice to the States of J., (“I (Breyer, dissenting) obligation. can find no their See Arlington, 126 S.Ct. good (“In reason for this Court to interpret the at 2463 a Spending case, Clause language of this meaning key statute as is not what a majority of the Members direct, mandate, control a or ernment what intend but of both Houses or agency, State, local the conditions regarding clearly told are curriculum, instruc- program of school’s acceptance those along with go local re- tion, or allocation or mind, turn funds.”). we rule in With any or sub- sources, a State or mandate interpretations Secretary’s to the division persuade they do not why explain thereof text incur funding obligations States’ us that the Act. clear. added). 7907(a) (emphasis

20 U.S.C. Interpretations Secretary’s b. The interpre- this accepted district court The Text the for Plaintiffs’ suit dismissing when tation Pontiac, WL a claim. interpre- failure to state other essentially two There are *4, LEXIS 3149545, Dist. case, at in this advanced tations of ex- 29253, the district court at *12. As to the States require which would both of convincingly argues “Defendant plained, re- with NCLB compliance fully fund means no federal simply first, that this sentence The funding. federal gardless of or require can states employee’ ‘officer or is that adopted, district court which the any or ‘spend districts school officers merely prevents this section this for any paid costs not incur from government employees of federal ” 3149545, *4, at Id. 2005 WL Act.’ additional, require- unauthorized imposing The at *11. LEXIS U.S. Dist. The States. participating ments on that, “[b]y includ- explained court further empha- simply that this section is second of,’ employee ‘an or words officer ing the is participation sizes that State prohibit clearly meant Congress that once voluntary, but entirely ad- imposing from employees officers and fully comply it must participate, chooses beyond ditional, ‍​​‌​‌‌‌‌‌​​​​​​‌​​‌​‌​​‌‌‌‌​‌‌‌‌‌​​​‌‌‌​‌​‌​​‌‌‌‍requirements, unfunded regardless of requirements with NCLB Id. in the statute.” provided those below, nei- funding. As discussed *4, Dist. U.S. 2005 WL evident. interpretations ther of these sum, court In at *12. LEXIS merely prevents that concluded Rogue Federal Stopping imposing from officers rogue Employees or Officers are two Act. There by the not authorized 7907(a) simply restricts that view interpretation. with this problems imposing additional from federal officials presented First, if even the Government is, those not author- requirements —that in- Congress convincing argument participating Act—on ized meaning, tended 7907(a), part first arises from have not still would Clause the Spending employee of “an or officer which discusses certainly falls reading as this been met reading, This Government.” the Federal a State being so evident short below, interprets in italics as shown inter- it to be the clearly understand would employ- any officer or such preclude Act to intended. Congress pretation incur costs mandating a State ee (that is, not authorized paid for under Second, it is evident officer by) the Act: final modifies the language employee or incurring discussing Statеs clause Nothing in this prohibition.

General words, the InAct. other under the to authorize be construed Act shall officer reasonably read language employee Gov- or the Federal employee officer low) only modify regarding the middle clause suggests that Congress’s this was curriculum, state and local control over concern. Yet even this were what Con- “Nothing follows: this Act shall be con- meant, gress we would be left with the strued to authorize an employee officer or following tautology: This Act au- does not mandate, of the Federal Government to thorize federal employees officers or direct, State, or control a local educational require that States incur any- costs for agency, curriculum, or school’s program of thing the Act does not authorize. We instruction, or allocation of State or local doubt that empty intended this ” reading resources.... This fi- leaves the meaning. nal simply by clause to be modified reasons, For these we find rogue- opening clause, as follows: “Nothing interpretation officer unconvincing. this Act shall be construed to ... mandate event, any interpretation is not so evi- any a State or subdivision thereof to dent that a clearly State would understand funds or incur costs not it to interpretation be the Congress in- under this Act.” In way, this the Act sim- tended, and interpretation thus the cannot ply prevents federal officers from control- save the Act from violating the Spending ling school curriculum and allocation of Clause. funds, local says but nothing about these mandating officers States to funds (2) Emphasizing Participating that or incur costs for obligations. unauthorized in the Act is Voluntary Third, assuming even that the or officer employee language modifies the final Secretary The also contends that clause, more fundamental problems reference in the final clause of to one, emerge. For the Secretary’s view a State’s costs under the Act simply em- that this section is prevent intended to phasizes that a State’s decision to accept federal officers from imposing unautho- federal funding under in exchange rized on States would have for complying with under the us substitute words that are not in the Act entirely voluntary. Secretary The statutory (“Nothing text in this Act shall notes that provides this section limits on be construed to authorize an officer or (or, what the Act if accepts one the read- employee of the Federal Government to ing above, discussed on what federal offi- ... any mandate a State or subdivision cers employees) can “mandate” the thereof spend any to any funds or incur States to do: Act]”) costs not [authorized under this for General prohibition. in Nothing (“... words that the text or incur Act shall be construed to authorize an ”). any paid costs not under this Act officer or employee of the Federal Gov- Stating that a federal officer cannot re- mandate, direct, ernment to or control a quire a incur any State to costs paid “not State, local agency, or is, least, for” under the Act say to curriculum, school’s program of instruc- way unusual of prohibiting an officer from tion, or allocation of State or local re- forcing a State to incur costs for some- sources, or any mandate a State or sub- thing that is not authorized under the Act. division spend any thereof to funds or Were truly concerned about this any incur paid for under this sort of by ultra vires conduct federal offi- Act. employees, cers and it could have said so expressly. Moreover, added). nothing legis- (emphasis U.S.C. (discussed history lative in more detail be- Secretary explains, The Congress fully “as complying as obligations that States’ understood, NCLB] [such a statute —such federal requirements where with receipt a on conditions imposes ” agreed have the States falls Br. (Secretary’s ‘mandate.’ is not a short —after (whether voluntarily participate 22.) that here contends Secretary The otherwise). one It would be cоercion or mandate, that a but in the Act is nothing in it nothing Act stated that thing that States simply “ensured this section to mandate a State be construed shall subject to mandates not be would nothing Act” or that “comply with the out conditions set part no formed be construed to mandate the Act shall (Id.) Secretary addition- the statute.” Act”— “incur costs under this State Mandates the Unfunded ally notes like that would indicate language 658(5)(A)(i)(I), (“UMA”), Act comply simply choose not to can man- intergovernmental defines “federal Instead, howev- altogether. Act with the voluntary participation date” to exclude er, nothing in the provides text (Id.) programs. mandate a State be construed to Act shall is not But Plaintiffs’ contention under this “incur costs not unfunded mandate a whole is an NCLB as that a could reason- language Act ”— States; they appear will- upon forced obligations interpret to relate to its ably voluntary pro- that it is a ing to concede the Act. agreed after it has focuses on argument their gram, and Indeed, It is one such State. Vermont argue 7907(a), Plaintiffs not the UMA.4 text, law, providing based on passed in that, participating they now that nor its subdivisions that neither State (that is, NCLB, imposing Secretary any not to “incur costs required will be they simply “mandating”) liabilities comply Act in order to for under the paid that were ex- bargain for—and did not Act.” 16 V.S.A. provisions with the of 7907(a) they §by pressly excused —when added). short, it not In (emphasis § 165 reason- This view is signed on to NCLB. 7907(a) merely to § relates apparent addition- able, are at least three and there whether to freedom to choose the States’ why provide Act does not al reasons place. Act in the first opt into the merely speaks § clear notice Second, of language the exact the use of as program of the to the voluntariness Edu- in the Perkins Vocational of their relieving to States opposed (1988), Act, §§ 2301-2471 20 U.S.C. cation unfunded re- to obligation vol- is not about language that the shows quirements. it is a State’s untary compliance; about First, Under plain language obligations on the under NCLB. funding based Act, grants are issued 7907(a), that this sec- apparent the Perkins is not improve, expand, to voluntary the States to “assist question to the speaks tion modernize, develop vocational quality to opposed in as participation however, they raised, requirements, so that daily burdensome question been 4. A has can, pro- provide practical may financial services as a continue to whether a State matter, NCLB. under their neediest refuse federal offered to grams that have (See, e.g., Br. of the Governor Amicus Curiae New York v. years”).) See also students Pennsylvania at 20 144, 175, the Commonwealth States, U.S. United depend (noting have come to that "states (1992) (noting in an- 120 L.Ed.2d provide extra assis- upon funds to [federal] "Congress crossed the has context that other economically and who are tance to students coer- encouragement from distinguishing line academically disadvantaged” and that "states cion”). accept and finan- additional are coerced education in programs order meet the Acts therefore does not simply reiterate needs of the Nation’s existing and future may may States or participate work force marketable skills and to the federal program. improve productivity promote econom- The dissent is correct in noting that growth.”

ic Pennsylvania v. Riley, 84 there are differences between the Perkins (3rd Cir.1996) F.3d (citing 20 Act However, and NCLB. the differences 2301(1)). Section 2306a of the in the overall structure of the statutes do Act, “Prohibitions,” Perkins entitled repli- not negate the informative role that 7907(a), cates NCLB’s adds a but final identical provision 62-word found both clause: provide. can statutes In the Per- (a) Local control. Nothing this Act Act, kins provision the 62-word is followed shall be construed to authorize an officer by exceptions provision. NCLB, employee or of the Federal Government provision 62-word is followed no mandate, direct, State, or control a exceptions. The difference between the local educational agency, or school’s cur- Perkins Act and NCLB in regard riculum, program instruction, or allo- shows that Congress is capable of explicit- cation resources, of State or local or ly stating when States must provide fund- mandate subdivision ing under Pennhurst, Acts. these Cf. spend thereof to any funds or incur (“[I]n 17-18, U.S. at 101 S.Ct. 1531 those Act, for under this except instances where has intended the required 112(b), sections States to fund certain entitlements as a 311(b), and 323. condition receiving funds, it has 2306a(a) added). 20 U.S.C. (emphasis proved capable of saying so explicitly.”). The sections of the Perkins Act referred to The dissent’s conclusion that these identi- in this final clause require agencies in cal statutory 62-word phrases in the Per- participating Act kins Act and NCLB have fundamentally See, non-federal funds. e.g., 20 U.S.C. different meanings because the Acts have 2413(a) (Perkins 323) §Act (“Except as “different relationship^] require- between provided (b), in subsection for each fiscal ments funding,” and Dissenting Op. at year for which an eligible agency receives would be anything but clear to a reason- Act, assistance under this eligible the able state official. agency provide, shall non-Federal from Third, comparison of sources the of the costs use the word eligible the agency for “mandate” in § incurs with provisions the the administration programs for of Act, of (1) under the. UMA light here, shed little amount that is not as less than NCLB the makes no provided amount reference by the eligible the to UMA’s agency “mandate,” definition from non-Federal sources for which such excludes (em- voluntary costs for participation the preceding year.”) in pro- fiscal federal added). phasis Thus, grams, and the “the preceding lan- label ‘mandate’ is often guage 2306a(a), in applied which to obligations mirrors that NCLB states assume 7907(a), explains voluntarily that in participating order to for qualify States not spend nеed funds.” their own funds Patricia T. Note, to Northrop, comply Act; with the Perkins the Insignificance final Constitutional Funding in Mandates, clause—absent provides the ex- Federal 46 Duke L.J. for NCLB— plicit (1997). exceptions when describing partici- Indeed, 903 n. another section of pating States do have to expend their own the UMA defines itself “mandate” to in- The common in language these duty clude a arising voluntary partic- funds. comply to with obligation their that programs. in federal ipation various educational purposes for NCLB’s phrase (defining § 1555 Dissenting Op. way unclear. See is in review federal that would of a commission obligation their Jaber, They contend that B. at 282. mandates); Makram see also incur funds or addition- Mandates: to additional Comment, Federal Unfunded compliance is unclear. As al costs for that a “Brilliant Federalism or An Issue of instructs, “we must ask whether Arlington ”?, Emory L.J. Sound Bite regard- notice furnishes clear (1996) (“Read [NCLB] liberally, [in this definition in this case.” 126 ing liability issue an ‘unfunded considers as 1555] Section added). Faced (emphasis or S.Ct. at 2459 statute any federal federal mandate’ 7907(a), provides im- catchall duties that results regulation “[njothing in this Act shall phrase that governments, even or local posed on state ” require States and localities construed duties voluntari- if the takes on such state any costs not any funds or incur “spend to these resulting costs ly, long so as the Act,” that we conclude directly fully paid are not governments any- liability respect in this Plaintiffs’ government.”). the federal funded Accordingly, the Secre- thing but clear. reasons, conclude of these we For all violate tary’s interpretations requires States Clause. Spending where all NCLB even incur additional costs States must History Legislative c. funds, there is no clear through pro- fails to that NCLB Our conclusion obligation. pause But we notice of that notice to States of their requisite vide is no point. one final There emphasize Act rests on obligations under the dis- dispute real school text, as statutory plain meaning fulfill рarticipating in NCLB must tricts moreover, note, We discussed above.5 accounta- the Act’s various history informs legislative the extent submitting bility such as requirements, history sup- legislative question, Secretary, effectively tracking to the plans way, In this our conclusion. ports achievement, forth. and so student here is even Spending violation Clause are on clear notice respect, the States Arlington, than it was apparent more And, Secretary obligations. these lack of clear found a where the Court out, to Penn- that stands contrast points where liabilities even notice of the States’ hurst, rights” hortatory “bill where it intended Congress explicitly stated obligations legal DDA did not create See those liabilities. assume States to 282, State, Dissenting Op. on the see at 2465. Arlington, 126 S.Ct. argu- where the IDEA’S Arlington, and to mentioned, passed was first NCLB As expert prevailing fees to grant able Edu- Elementary Secondary and and as the explicit in the text parties was language of 1965. The cation Act of obligation on the created no such therefore 7907(a) in three included education do not contend was But Plaintiffs here States. unpredict- appropriations fluctuating and apparently disagrees. See Dis- 5. The dissent support this compliance lend ("[A]ny state able costs Op. senting at 277. reasonable Dissenting Op. How- official, at 276. eye, See conclusion. reading the NCLB with clear ever, clarity provide argument does not guaran- was no that there would understand of a reduced regarding who bears the cost all of the federal funds would match tee that higher-than-expect- level of federal incurred states and and costs controlled districts.”) compliance. argues ed costs of The dissent local school 1994:(1) enacted in control over the “allocation of State and statutes that Act, “put to Educate America local resources” was intended to the Goals 2000 (enacted going that we are March 1994 to rest concern Pub.L. 103-227 dictate frоm the Federal level that some- provide funding for States to set some of where, way, some the local and State Gov- the academic standards that NCLB ulti- (2) mandated); money ernments will find for our dictates.” mately the School to Work (enact- Act, 13, Cong. (daily L. Rec. H7741 ed. Opportunities Pub 103-229 Oct 1993). “I May provide funding Rep. explained, ed in 1994 to As Condit be- programs); wrong lieve that it is for us on the Federal certain work-related education (3) pass legislation level to but shift the costs and the October 1994 reauthorization of ESEA, implementation compliance to our Improving titled the America (IASA), governments.” Cong. State and local Schools Act Pub.L. 103-382. The 7907(a) 1993). 13, (daily text of was carried over to Rec. H7769 ed. Oct significant change without language provision The final of this legisla- these 1994 statutes. The 1993-94 ultimately Goals 2000—which would also regarding language tive debates appear in from the Sen- —came informative. Pac. R.R. therefore See W. ate, incorporated Goodling-Con- R.R., 247, 251, Corp. v. W. Pac. language dit above and added the second (considering S.Ct. 97 L.Ed. 986 “... phrase: or mandate a State or legislative regarding pro- debate earlier spend any subdivision thereof to funds or posal proposal regarding to construe later incur costs not for under this topic). the same Cong. (daily Act.” 140 Rec. ed. S626 Feb. 1994) (amendment no. as modi- Representatives Goodling and in- Condit fied). explained by sponsor As its part language troduced the first Sen. Gregg, purpose “to forming the basis of on the amendment’s was floor assure that during of the House this bill will become debate over Goals ... unfunded mandate to make it clear Although 2000. Goals 2000 lacked that if the Federal mandatory testing penalty NCLB’s Government tells structure, something do or tells the local required States to submit community something, to do plans government showing to the federal the Federal Government will have to for the costs high how would achieve academic students, of that mandate.” Id. The Senate version identify standards fоr their low- schools, of the provision accepted was then performing goals and set text, language became the enacted the Goals teacher certification. The introduced (Mar. 21, 7907(a), 2000 Act. equivalent Rpt. H. Conf. 107-446 part to the first 1994). provided provision This same was added to as follows: Act, Opportunities the School to Work Nothing in section shall be con- pending which was also at that H. time. strued to authorize an employ- officer or 19,1994). Rpt. (Apr. Conf. 103-480 ee the Federal Government to man- date, direct, State, or control a local provision was then included agency, or school’s curricu- IASA, predecessor the direct to NCLB. lum, instruction, program or alloca- language Before the was added to the tion of State and local resources. IASA, early debates the House included (daily Cong. “provides Rec. H7769 ed. Oct. criticisms that the bill all the 1993). mandates, Rep. Goodling explained that money but no to for them. language federal prohibiting government The Federal Government makes a multi- dit) demands, (stating Congress’s that it was not it is accountable new but tude of (daily among Cong. require Rec. H807 ed. intent to States to choose for none.” 1994) (Rep.Barrett). seriously Sen. Duren- “tak[ing] requirement Feb. that the “amendment berger noted instead end[ing] up with a multimillion-dollar un- mandates, unfunded regarding refusing] Federal mandate ... or funded clearly states legislation, of this part participate program.”)).6 bill results any requirement that if this Thus, legislative history, to the ex- mandate, affected in an unfunded States NCLB, reading it informs a is at tent comply.” do not have to and communities regarding the fundamental best unclear Cong. (daily Rec. S14205 ed. Oct. 7907(a). Indeed, dispute regarding 1994). party, it it bol- supports the extent either legislative that Plaintiffs contend Accord- interpretation.7 sters Plaintiffs’ 7907(a) they that under history confirms ingly, clarity it adds no more of notice to comply with NCLB need regarding obligations their adequately light that are not funded. funding requirements with NCLB above, this is of the statements recounted than text itself. entirely position. The Sec- supportable however, retary argues, that these same Secretary Expressed d. The Former that support position statements her Interpretation Plaintiffs’ 7907(a) merely that a State’s emphasizes Text entirely participate in NCLB is decision have concluded that a state official We words, contends voluntary. In other she State, would not be on clear notice that her Representatives and Senators that when NCLB, required into would be opts once that these various statutes would stated comply with NCLB mandates,” they not become “unfunded note are not for under the Act. We that, remained free meant because States that even the Defendant’s former here accept funding not to under these topic suggest that this con- statutes, views on this nothing in was mandated. them explain, proper. clusion is As Plaintiffs This is also a colorable view of the debates see, Paige Rod Secretary former of Education perhaps exceptions, some (though (since Secretary current (Rep.Con- succeeded e.g., Cong. Rec. H7769-70 little, earlier, spending power, implemented pursuant any, to the 6. As noted of the debates a concern about officials im- involved Legislature impose a condition on cannot posing requirements on the unauthorized requires States to federal funds rogue- States—the basis of the district court’s their own funds absent clear statement Secretary interpretation also officer that the placed on the such a condition has been advances. funds. "there was 7. The dissent states that because further accusation that this The dissent’s changing the historic no discussion of "contrary way opinion’s holding to the our system, nation's educational scheme of our operated and education has been nation's funds,” largely funds to federal state majority opin- reads the funded for centuries” support legislative history does not the Plain- Dissenting Oр. broadly. ion much too See Dissenting Op. argument. at 273. tiffs’ only Spending Clause 273. We hold However, interpretation of the the Plaintiffs’ Con- requires a more clear statement from suggest, require, or even Act does not gress and local educational before States change was intended in the Act. Rath- such expend agencies required to their own can be er, reading Act and their the Plaintiffs’ guide- comply with federal funds in order to request recogni- arguments before this Court Legislature are lines. that when acts of the tion 272 2626, 9, pt. stated that the Act 46 Conn. S. Proe. 2003 Sess.

Margaret Spellings) 2003) (statements says things 21, that that language (May “contains of Sen. (JA Sullivan) required.” are not are not that (noting Connecticut can funded 2003) 4, Paige Sept. of (quoting statement “only that pray magic phrase that one [in] added).) Reiterating (emphasis point says Leave No Child Behind that [sic] speech, Paige in a later reassured that “if it, fund the feds don’t we don’t have to do funded, required. not There is it’s it’s not real,” it, “if turns out to be because prohibits that language requir- the bill folks, it.”); money ain’t there we can’t do (JA paid ing anything that is not (2003) (“[Consistent § for.” V.S.A. with 2003) 2, (quoting Paige statement of Dec. Act, of the No Child Left Behind [§ 7907] added).) (emphasis any neither the state nor subdivision required spend any thereof shall be to Secretary dispute does not that her paid funds or incur costs statements; for under predecessor these she made Act they comply provi- in order to with the explained argument at oral that were Act.”). not, sure, “stray Stray or To comments.” the com- sions state how a may ments leave us wonder state officials have their own interests 7907(a) official § would be on clear notice that her reading to excuse their States’ comply State would have to with obli- obligations comply with unfunded re- gations under the Act that are not funded NCLB; quirements point merely of our Secretary when the of Education cited to provide that NCLB does not clear notice appropriate text in the Act itself to assure (and, interрretation apparently, that their requirement. States that there is no such Secretary’s) the former is somehow mis- many It surprise comes as no that state placed. understanding

officials do not have this 7907(a). See, light e.g., Atty. Wise. III. CONCLUSION 2004) (“The Op. (May Ltr. at 4 Gen. The No Child Left Behind Act on rests 7907(a) ... language 20 U.S.C. seems goals: most laudable to “ensure that only to bear one interpretation: reasonable fair, equal, signifi- all children have a agencies federal lack and officials authori- opportunity high-quality cant to obtain a State, ty require any or State subdivi- education.” 20 Nobody 6301. sion, to take action under the ESEA challenges that aim. But a state official fully [which amended] deciding participate in NCLB could rea- monies.”) (available by funded at sonably read to mean that her http://www.nsba.org/site/docs/33800/33758. comply State need not (last 28, 2007); pdf) visited Dee. Nat’l paid are “not for under the Act” Legislators (July Conf. of State Mem. Thus, through Congress federal funds. 2003) (noting, in a memorandum to State “spokefn] clearly has not so that we can officers, legislative presiding chairs edu- fairly say that the State[s] could make an committees, cation legislative edu- participate informed choice” to in the Act staff, cation “[u]nder basic rules of construction, knowledge with the would have statutory plain meaning Act’s re- statutory language is] [of states, subdivisions, gardless fairly funding. See Penn- or local clear— hurst, do not have to on the 101 S.Ct. 1531. Of course, if ultimately the NCLB that are not the Act is what (available intended, itself”) at www.ncsl.org/statefed/ properly the ball is left in its (last 28, 2007); nclblegahhtm) Dec. Arlington, visited court to make that clear. See J., and local school offi- system (Ginsburg, concur- at 2465 —State crystal vision of what (“The conclude, cials—had a clear ball, left properly I is ring) by way of the Congress offering was them if it so Congress’ provide, court in (the Left Behind Act of 2001 No Child elects, testing and ex- for consultant fees “NCLB”). Many bring of them could not imple- and its beyond those IDEA penses funds, the federal authоrize, pass up themselves to already menting regulations or conditions, simply hoped that someone some- but along specifications, with would save them at the end of the thing to those fees and geared or limitations Today majority exactly does road. may appropri- Congress deem expenses omitted). ate.”)(footnote that. Accordingly, we judgment court’s REVERSE district government historical- While the federal RE- complaint and dismissing Plaintiffs’ relatively ly always has contributed small consistent proceedings MAND for further to the total of local edu- amount opinion. cation, increasingly it has become con- quality decline in the cerned about the

McKEAGUE, Judge, dissenting. Circuit education, with re- particularly children’s is a service at-risk children. Imagine following: spect there to the nation’s most accountabil- governments attempt local In an to achieve more State and education, The historically provided ity Congress passed its citizens. in local have NCLB, Elemen- through finance the service which revised the earlier governments financing, lo- provision, tary Secondary local and Education Act of 1965 taxes. Local now, (“ESEA”), 89-10, imagine But that Pub.L. No. 79 Stat. cal control. (codified along and offers at 20 U.S.C. government comes amended 6301-7941). Although participation §§ that service. a deal associated with (more voluntary, Congress imposed both a carrot mon- deal comes with the NCLB duties). (more reading A educational reforms for those ey) significant and a stick participate what could be and receive of the offer sheet confirms states elect holds, majority mandatory Today expected: the duties federal funds. well, way our money, opinion contrary but the to the participate, choose to money govern- operated from the federal has been like all nation’s education centuries, ment, could subject change year-to- Congress funded for But, government year. reading also confirms havе intended that the federal period entire cost of various edu- accepted the offer can be one now fund the next, children. dropped the so the risks are reforms for our nation’s cational support local officials no in the text or open-ended. The State and Because there is accept proposition choice: the NCLB for the are thus faced with a context of duties, monumen- forgo intended such a money and assume the na- money change our unprecedented it alone with less but tal and go both I dis- funding, respectfully fewer duties. tion’s education sent. course, is, really There no need I de- a world—what have

imagine such I City not the Emerald scribed is funds de- Regardless of whether federal country’s pri- of Oz but rather this Land compliance, partici- fray the entire cost of secondary system. education mary and must and school districts pating States wearing green-tinted than But rather re- with the NCLB’s educational I the inhabitants glasses, submit 274 mandatory Contrary majority’s voluntary program to the from a to a

quirements. 7907(a) conclusion, § does not render has the ab- interpretation one. Plaintiffs’ thus, Congress did not ambiguous; eviscerating single NCLB with a surd effect of authority Spending under the exceed its provision comprehensive the entire scheme ambiguity where By creating Clause. accountability requirements of and finan- exists, majority largely none avoids cial disbursements set forth in hundreds of argument appeal, on principal Plaintiffs’ statutory strong- pages of text. Without a in passing it allude to its although does showing Congress actually intend- er Maj. op. at See inherent weakness. result, adopt ed that I decline to such an (“Indeed, Secretary’s perhaps the view of interpretation. untenable 7907(a) ultimately § the text cor- ] [of rect.”). ambiguity, I no I must As find Requirements A. NCLB Educational principal argument. Plaintiffs’ first address expressly participat- The NCLB outlines that a of plain reading Plaintiffs contend ing obligations States’ and school districts’ 7907(a) § leаds to the conclusion requirements. to meet various educational notwithstanding acceptance States’ accepts money particu- If a under a State defray portion a federal funds intended NCLB, lar part comply must with education, of the cost of local States and that part’s requirements. 20 U.S.C. comply local school districts need not ‍​​‌​‌‌‌‌‌​​​​​​‌​​‌​‌​​‌‌‌‌​‌‌‌‌‌​​​‌‌‌​‌​‌​​‌‌‌‍with 6311(a)(1); 6363(a)(1), §§ see also id. set forth in 6842(a)(1). 6396(a)(1), Conversely, if a they NCLB deem any funding does not under State seek insufficient to cover the entire cost NCLB, comply any it need not 7907(a) in compliance. states rele- Section requirements. NCLB’s part: “Nothing Chapter vant shall to ... mandate a be construed participating School districts within a any spend any subdivision thereof complicated State face a more set of obli- any paid or incur costs not for under this gations. ofMost the NCLB’s funds are Chapter.” argue Plaintiffs allocated school districts based on the imple- means that the cannot be “NCLB qualifying number of students requires in a mented manner states students, (e.g., migrant school low-income and school districts ‘to funds or etc.). students, School districts without at- incur costs not for under th[e any funding risk students will not receive ” Appellants’ (quot- Br. at 28-29 NCLB].’ particular parts under the NCLB 7907(a)) (alteration ing 20 U.S.C. required therefore will not be below, text, original). explained As requirements. with some of the NCLB’s operation, and structure of the NCLB un- Yet, districts without students at-risk reading. dermine Plaintiffs’ Bennett v. completely regulatory are not off the hook. Educ., 656, 666-67, Ky. Dep’t U.S. I, A Some under Title Part 105 S.Ct. 84 L.Ed.2d 590 State, (“[T]he apply participating across an entire background operation of the actual just rather than to those “local educational proper I” understanding Title informs districts) (i.e., agencies]” school that re- of “the nature of fundamental the obli- L”). Instead, example, par- ceive For federal funds. gations assumed under Title ticipating State must create statewide aca- properly read to mean that im- demic standards and all school districts charged officers who are plementing administering public-school the state must test their stu- statutory cannot transform the scheme dents those standards. Id. (3)(A). NCLB, 6311(b)(1)(B), structuring reach The broad was well aware system that our nation’s education is his by the limited §of 6311 is made clear State, torically largely by funded not fed for school districts that do not exception eral Jersey, dollars. Bennett v. New pub- funds: need not receive federal Cf. 632, 635, testing student or take lish the results of (1985) (explaining L.Ed.2d 572 that Title I if a fails to make AYP. steps certain school by Congress was enacted with “[r]e- (b)(2)(A)(ii), Pointedly, §§ 6316. Id. spect[ deeply ][for] rooted tradition of non-funded school Congress did not tell education”). state and local control over they perform districts that need not testing in the first instance. The NCLB’s funds are distributed to schools school on the districts based example highlights

This the central de- types of students in schools and dis- those argument. Congress in Plaintiffs’ in- fect I, tricts, A, not on costs. Under Title Part tended, in the text of the expressed family for each student from a low-income NCLB, participating that a State raise care, inor institutional a school district is standards of student education across the ... “eligible percent to receive state, of whether one regardless entire average in the per-pupil expenditure not re- pocket well-off of the state does 6333(a)(1)(B). § State.” In ceive federal funds. those districts Schools with more low-income students funds, Congress that do receive federal I, A funding will receive more Title Part simply requires even more. When Con- than schools with fewer low-income stu- gress expressly applies require- certain dents, and schools with no low-income stu- irrespective ments to all school districts dents will receive no funds under the main funding, that is a clear indication that it I, A. grant Title Part See id. complying did tie the cost of not intend to 6333(c)(2). § requirements with the NCLB’s cases, fed- funding, amount of federal which is inher- most schools receive subject only on ently change funding based on the eral must funds particular specific who count toward the spending priorities of each Con- students (low- gress competing funding demands for in- amount of the school receives and its income, etc.), migrant, not the entire stu- creasingly scarce federal dollars.

dent-body example, only For general. Funding B. NCLB Scheme at least of a school’s students where 40% are low-income can the school use federal argue Plaintiffs the NCLB’s edu “to the entire educational upgrade only are enforceable cational 6314(a)(1). Id. program of a school.” defrays the government when the federal than 40% low-income For schools with less funding compliance. entire cost of The students, spent must the federal funds structure of the NCLB dictates otherwise. id. only on those low-income students. See telling Most is that there is no mention Nevertheless, the latter schools must still compliance anywhere cost of re- requirements, meet all of the NCLB’s NCLB, any promise text of the let alone par- gardless spending of federal on each funding relief if federal is insufficient to ticular student. defray compliance. the entire cost compli features of the NCLB’s scheme NCLB’s silence as to the cost of Other position. Congress any explicit or to relief therefrom undercut Plaintiffs’ ance un- capped aggregate funds authorized particularly federal dollars fall short Congress, any provision in der the NCLB without conspicuous here insofar as beyond any appropriations authorizes compliance. Id. the actual costs See, 6302(a), §§ e.g., 2006-2007. 20 U.S.C. 6302(a). expressly pro- The NCLB also 6663, 6801(a), 6553, 6603(a), 7103. Contin- that funds avail- possibility vides for the require reauthori- ued NCLB will year might be insufficient given able appropriations by Congress each zation the amounts all school districts pay Yet, year at the same after 2006-2007. avail- to receive: “If the sums eligible are only through that it time authorized funds full able ... are insufficient 2006-2007, Congress applied the NCLB’s eligi- districts] that all [school amounts through 2013- ..., Secretary shall rat- ble to receive 6311(b)(2)(F); 2014. id. 34 C.F.R. See funding. district’s ably reduce” each school a fun- Again, 200.15. demonstrates 6332(b)(1). At no time have the Id. be- important damental and disconnect eligible to re- amounts school districts requirements. appropriations tween and equaling the cost ceive come even close ignore Plaintiffs importantly, More provisions appear compliance. Similar Congress if undisputable fact that even high-quality teachers programs year “fully had funded” the each See, e.g., id. migrant and children. (i.e., annually appropriated the entire 6393(c)(1)(A). Yet, provision there is no authorized), the funds would still amount compliance a that excuses school district’s purported have fallen far short of the total in face with the NCLB’s by compliance. costs of This can be seen amounts dis- of a shortfall school comparing disparity between actual receive, let alone the eligible tricts are compliance appropriations purported and compliance. total cost authori- disparity costs versus the between funding This overview of the NCLB’s appropriations. actual Accord- zations and important another highlights structure ing complaint, funding to Plaintiffs’ federal simply It defies commonsense to point. covers less than 16% of costs for Ohio suggest Congress intended to relieve development and administration. In test compliance and school districts from Illinois, I, funding Title Part federal with when the the NCLB’s A than to achieve covers less 33% of costs compliance Congress cost of does —which Vermont, I, AYP current rates. Title appropriations, not control—exceeds but funding only A of current Part covers 19% appropriated not when the amounts —over Jordan, In the costs to achieve AYP. Utah Congress has total control—fall be- districts, Pennsylvania Reading, and school eligi- the amounts school districts are low funding only covers respectively, ble to receivе. and of the cost of AYP attain- 27% 31% fact argue Plaintiffs that the that Con- contrast, By appropriations ment. actual all gress appropriate has elected not to greater have than 66% of been somewhat appropriate un- funding it is authorized periods amount for the the authorized I, position Part A their supports 2004-2005; der Title through for 2005- 2001-2002 Thus, is underfunded. This actu- slightly though that the NCLB less.1 even just ally opposite. routinely appropriated Neither Title more Congress shows has I, half authorized each part Part A nor other of the NCLB than the amounts 2003-2004; Congress's appropriations $18.5 $12.74 billion 1. actual and the billion for I, 2004-2005; appropriations authorized in Part A $13.34 Title $20.5 and billion for and are, respectively: $10.35 $13.5 and billion $22.75 and billion 2005-2006. 20 billion 2001-2002; $11.69 $16 and billion for billion 6302(a); Complaint at 18. 2002-2003; $12.34 billion for billion have, year, according they suggest, the funds to Plain- an ambiguous creates con- tiffs, only funds, covered about third of the receipt dition on the of federal words, compliance. costs of In other the violation of the so-called clear-statement money maximum amount of rule, rule.2 Under that “if Congress in- have would still left the districts short. impose grant tends condition on the annual Congress’s appro- decisions not to moneys, it must do unambigu- so priate up just to the level authorized con- ously.” Hosp. Pennhurst State Sch. & v. firms that it never intended to cover Halderman, 1, 17, compliance entire costs of in the first (1981). 67 L.Ed.2d 694 The majority place. agrees, concluding that “a state official who engaged process of deciding interpretation

Plaintiffs’ of the NCLB whether the State should accept NCLB only disregards statutory its overall funds and the scheme, obligations go but it also defies reason and histo- those funds” would not ry. overwhelming burden understand that country education in this the State “chooses to always participate, has will [it] govern- been borne local have to for whatever additional costs NCLB, ments. Even the federal implementing the Act are not covered government only provides 7% of the tоtal by funding the federal provided under the Cong. for local education. 147 Maj. Act.” at op. contrary— 264. To the S13365, (2001) (statement Rec. 13373 official, any reasonable State reading the Feinstein). Sen. The that Congress notion with a eye, clear would understand intended to in full for a testing and guarantee that there was no that federal cost, reporting regime of indeterminate de- funds would match all of the costs con- signed implemented by States and by trolled and incurred States and local districts, agencies, school not federal is not Bennett, school districts. See U.S. only fiscally nonsensical and irresponsible, (“The 666, requisite 105 S.Ct. 1544 clarity but also recog- contravenes the traditional I; provided in this case is by Title nition of governments’ pri- State and local in participate program chose to mary responsibility public education. agreed to abide short, In in nothing there is the NCLB funds.”). I receiving Title as a condition for that suggests Congress intended to feder- My statutory analysis alize some or all of State and local edu- consists of two cation. text and Beginning elements: context. 7907(a), I,

with the text of like the ma “mandate,” but, jority, focus on the term II majority, I meaning unlike the find that its A. Text and Context of is unambiguous. Supreme As the Court that, Alternatively, argue explained, employed Plaintiffs has “where words are even §if does not have meaning a statute which had at the time a well- coercion; 2. The rule one clear-statement of several amount to and the conditions must general congressional restrictions on authori comport provisions. with other constitutional ty Spending under the Clause. In addition to Dole, 203, 207-08, v. South Dakota 483 U.S. clearly articulating the condition on federal 2793, (1987); 107 S.Ct. L.Ed.2d 171 Cutter funds, congressional action must be in Wilkinson, 579, (6th v. 423 F.3d 584-85 Cir. welfare; pursuit general the conditions 2005). argue do not that the NCLB Plaintiffs being must be related to the federal interest satisfy these fails to other restrictions. pursued; the financial incentives must not majority points out that the UMA meaning at law or The known commоn man- a definition of provides also second country they presumed law of date, according to “the term ‘Feder- which unless the used that sense have been means in statute any provision al mandate’ contrary.” Loril compels context ruling or court regulation or Federal Pons, 575, 583, 98 S.Ct. 434 U.S. lard v. duty upon imposes enforceable (1978) (quoting Stan 55 L.Ed.2d State, local, or includ- governments tribal States, dard Oil v. United assistance or ing a condition Federal (1911)) (altera 502, 55 L.Ed. 619 arising from in a volun- duty participation (internal omit original) quotations tion 1555; program.” 2 tary Federal ted). However, Maj. at 268-69. this broader op. 1995, the Unfunded enacted only to the applies of mandate definition (“UMA”), Reform Act of 1995 Mandates information, and not to the collection provides following definition: actually to limit man- designed measures intergovernmental mandate. Federal by Congress agencies. and federal dates intergovernmental term “Federal provi- The Specifically, applies only means'— n require mandate” of the UMA which that “the sions Advisory Intergovernmen- Commission on (A) any provision legislation, stat- complete study ... tal Relations shall ute, regulation that— examine the measurement and definition (I) an enforceable impose would in calculating involved the total issues local, State, gov- duty upon or tribal State, local, and benefits to and tribal ernments, except— Federal governments compliance with 1551(a). primary 2 U.S.C. law.” (I) a condition Federal assis- 658(5)(A) at in- applies § found definition tance; or end the provisions designed stead to all “to (II) duty partic- arising from in the of full consider- imposition, absence voluntary pro- in a Federal ipation by Congress, of mandates on ation Federal ... gram. State, local, with- governments and tribal added). 658(5)(A) § (emphasis 2 U.S.C. adequate funding, in a manner out Federal of mandate Applying the UMA definition State, may displace other essential 658(5)(A), 7907(a) provision § § from local, governmental priorities.” and tribal to means that a is free issue State 1501(2). 7907(a), § § The and Id. text of or participate whether not to decide 7907(a), § arguments Plaintiffs’ based on NCLB, its as its funding as well purpose consistent with the to which and, requirements; a State can educational 658(5)(A) applies: § in the definition if it forgo participation in the NCLB de compel- namely, prevent Congress to participation cides that such is not benefi expenditure funds. Both ling of State However, if system. 658(5)(A) cial to its educational UMA, § and in to it take participate, a State chooses must NCLB, it § of the as I believe require all of the “bad”—the federal understood, indicated properly “good” federal mon ments —with preventing it was not concerned with —the ey. interpretation This is consistent expenditure funds when requirements, to expenditure NCLB’s States are able avoid the statutory funding provisions, voluntary and overall their in a ceasing “participation avoids sweeping program.” scheme and aside Federal U.S.C. 658(5)(A)(i)(II). provisions § scheme. main children,- children, majority provision migratory also relies on a children with disabilities, children, the Perkins Education Act Indian neglected Vocational or (“Perkins Act”) children, § argue delinquent to young and children in 6301(2). promises funding that States can receive need of reading assistance.” Id. under the but can also It specifically targeted refuse to reach poor with its disadvantaged, the extent and and funding under Ti- I, of compliance the cost exceeds the tle Part A is consequently available Maj. op. if, amount of federal funds. at 267- States and only school districts notes, majority as, they 68. As the the relevant insofar have low-income students reads, provision of the Perkins Act as does or students one of the other mentioned 7907(a), 6333(c)(2). “[n]othing Chapter categories. Nonetheless, Id. shall be to ... I, construed mandate a State the educational requirements of Title spend any subdivision thereof to Part specifically apply A to all participat- districts, funds or incur costs not for under ing only schoоls and school Chapter,” but the Perkins Act also those students for whom the school dis- adds, “except required will funding. [20 U.S.C. tricts receive federal See id. n 2322(b), 2391(b), 6311(b)(1)(B). §§ 2413].” 2306a(a). light In of the different statu- Indeed, funding NCLB’s scheme schemes, however, tory this distinction there, suggests that is no correlation be- makes sense. tween the amount of federal funds a State

The respective funding structures of the or school district will receive and the cost that, Act suggest compliánce Perkins and the NCLB with its educational require- if Congress fully even intended to fund In light the ments. of the different relation- Act, Perkins the same cannot ship be said for between NCLB, the NCLB. The Perkins Act allots funds to the Perkins Act and the un- States based on the number of majority rely residents of reasonable for the on the 7907(a). in particular age the state groups, interpret § with the Perkins Act to greatest amount of funding allotted based In statutory analysis, context mat- also portion population on the between determining ters. whether the dear- nineteen, ages fifteen and followed respec- satisfied, statement rule is a court must tively by population twenty between not let itself focus myopically on one twenty-four, twenty-five and and between Pennhurst, phrase provision. or 451 U.S. 2321(a)(2). sixty-five. § and Id. This re- 18, at (cautioning 101 S.Ct. 1531 courts flects the Perkins Act’s purpose which is a against “be[ing] guided by single a sen- general, one: to “develop statewide more sentence”). Rather, tence or member of a fully the academic and career and technical in “plain addition to the language” of the secondary skills of education students and 23, 1531, provision, id. at 101 S.Ct. postsecondary education students who general court must also consider the and elect to enroll in career and technical edu- specific purposes objectives leg- and of the § programs.” cation Id. 2301. Needless policies being pursued, islation and the id. say, significant all States have numbers 18, 101 S.Ct. 1531. The court must of residents within age categories. these provisions further “look to the of the whole contrast,

By 18, purpose is law.” Id. at 101 (quoting S.Ct. 1531 707, 713, the educational needs of low- Philbrook v. 421 Glodgett, “meet[] U.S. 95 (1975)). 1893, in achieving highest- children our Nation’s ‍​​‌​‌‌‌‌‌​​​​​​‌​​‌​‌​​‌‌‌‌​‌‌‌‌‌​​​‌‌‌​‌​‌​​‌‌‌‍44 Specif- S.Ct. L.Ed.2d 525 schools, poverty English proficient ically, limited the court must not divorce one sec- 280 and only in the if State- local funds will be used in remaining provisions

tion from part provide served schools under statute, rather the entire statute but read that, whole, taken a are at services least aas whole: comparable to services schools determining Congress has whether receiving part,” under this 20 at is question addressed the specifically 6321(c)(1)(A); § that “either the sue, reviewing a court should confíne fiscal or per combined effort student examining statutory particular a itself agency aggregate expenditures of the and meaning in isolation. The provision —or provision to the respect the State ambiguity phrases certain words or —of by agency” public free education must may only placed become when evident than percent not be “less 90 com- Gardner, v. 513 context. See Brown aggregate expendi- fiscal effort bined or 115, 118, 115 552, 130 L.Ed.2d U.S. S.Ct. year, the preceding tures” id. (1994) a creature not (“Ambiguity 7901(a); § and and school that States dis- possibilities of definitional but of statuto tricts “shall use Federal funds received context”). a ry It is “fundamental canon I, only supplement [Title under Part A] statutory that the words construction would, the funds that in the absence of must in their con óf a statute be read funds, such Federal be made available with a view place text and to their from non-Federal sources for edu- statutory Davis v. overall scheme.” pupils participating programs cation of U.S. Michigan Dept. Treasury, 489 I, A], under Part [Title assisted not to 803, 809, 109 1500, 103 S.Ct. L.Ed.2d 891 6321(b)(1). funds,” supplant such id. (1989). A court must therefore inter interpretation Plaintiffs’ of Section symmetrical the statute pret “as 7907(a) eviscerates and school dis- States’ scheme,” regulatory coherent Gustafson 6321(b)(1), obligations tricts’ Co., 561, 569, 115 Alloyd v. U.S. 7901(a). 6321(c)(1)(A), Alterna- 1061, (1995), and 131 L.Ed.2d 1 S.Ct. tively, if “mаndate” read with the mean- “fit, all harmo possible, parts if into an above, § ing suggested I have does Brothers, whole,” FTC nious v. Mandel provisions not contradict other 385, 818, Inc., 389, 79 359 U.S. S.Ct. NCLB, does nor it cause the unreasonable (1959). L.Ed.2d 893 interpreta- created Plaintiffs’ results FDA v. Brown & Tobacco Williamson v. Helvering tion. See Credit Alliance 1291, 132-33, 120 529 U.S. S.Ct. Corp., 107, 112, Corp., 316 U.S. 62 S.Ct. (2000). L.Ed.2d 121 should, (stating L.Ed. 1307 “[w]e Here, language course, ... a single [of read two sections in this be con- “[n]othing Chapter shall than as consistent rather conflict- statute] ... strued to mandate possible”); if that ing, see also Bennett thereof to funds or subdivision 154, 173, Spear, v. any costs not under this (1997)

incur (stating 137 L.Ed.2d 281 “cardinal suggest, meant Chapter” what Plaintiffs effect, ... principle duty give is our would the NCLB’s every contradict possible, to clause and word of a and schools other that States rather statute than to emasculate entire section”). maintain fiscal efforts to fund districts schools that receive the NCLB funds Arlington B. Pennhurst and that do In particular, well as those not. requires that a school district its the NCLB To reach conclusion that the NCLB I, “may provide Part not notice to the A] receive under did clear States [Title

281 regarding obligation their to incur Bill Rights provision, addi- the of contained lan- comply tional guage expressly the NCLB’s conditioned the re- requirements, majority ceipt the also relies on of federal funds on compliance. Id. 23, Supreme the Court’s decisions in Penn- at By contrast, 101 S.Ct. 1531. the Bill Arlington. hurst and As for the legal Rights of section provides that “[t]he decisions, holdings treatment, of those two services, neither and habilitation for a supports majority. in- person This court has with developmental disabilities ... (which terpreted the holding Pennhurst should provided setting that is Arlington applies) as requiring “[njothing 13, least restrictive.” Id. at 101 S.Ct. 1531 “ Act, more” than ‘clear (quoting 111(2), 502) notice’ to the states 89 Stat. at added). that funding upon compli- is conditioned (emphasis The Court also noted Cutter, ance with certain standards.” 423 that the statute empower did not the De- Pennhwrst, at (citing F.3d 586 451 partment U.S. at of Health and Human Services 1531). 25, explained 101 S.Ct. As supra, to withhold funds for failure to comply the NCLB met that standard of notice. with the Bill Rights, of as it did for failure n As for the factual comply circumstances those portions with other of the stat- cases, two neither particularly helpful 23,101 ute. Id. at S.Ct. 1531.

here. Pennhurst is not controlling because Pennhurst, plaintiffs claimed that none of the Court’s for finding bases receiving States funding under the Bill of Rights provision “hortatory, to be former version of the Developmentally not mandatory” present here. The Disabled Assistance and Bill Rights I, of Act of Title Part A are set affirmatively required were provide forth in imperative, hortatory lan- rights (“Each which the “Bill Rights” guage. statute’s Compare 20 U.S.C. “ provision described as rights per- ‘the local agency educational receiving funds ” developmental I, ....”) sons with disabilities.’ Part shall [Title A] with 89 Pennhurst, (“treatment at U.S. 101 S.Ct. 1531 Stat. at 502 ... should be 4, 1975, 111, (quoting Act of Oct. provided”). 89 Stat. re- NCLB’s educational 1984)). (provision repealed quirements are not introduced as mere “ right These included ‘a to appropriate congressional findings voluntary goals, treatment, services, and largely habilitation for as was prior case to the NCLB. Here, such disabilities ... in the setting Secretary that is of Education is statu- least person’s personal restrictive of the torily empowered to withhold ” liberty.’ Act, 111(1), (2), (quoting Id. refuse to with the 502). Stat. NCLB’s requirements. § 6311(g)(2) (applying to the re- The Pennhurst Court held that the stat- quirement to create state standards and Bill Rights “represents] ute’s general testing instruments); 1234c, §§ id. policy, newly statements cre- 1221(c)(1) NCLB). (applying to all of the legal ated duties.” Id. at Moreover, 1531. The Court noted that the act’s Bill holding Supreme Rights was introduced as set of con- Court Pennhurst was not gressional “findings respecting rights duties created the statute were too persons developmental ambiguous preconditions disabilities.” to be for the re- 13, Act, funds, Id. at 101 (quoting ceipt S.Ct. 1531 of federal but that were 502). 111, 89 at It pointed Stat. also out not on the states at all. The portions statute, that other explained the unlike Court dicta that its conclusion 282 low-income the number of proportion of stat- by the rule simply “buttressed

was no ambi- “There was in a school. Congress must students ... that utory construction respect condition[s]” impose guity th[e] condi- intent to clearly its express re- and school districts States upon funds.” grant the tions on under the NCLB 24, funds Pennhurst, 101 S.Ct. 1531. ceived federal at 451 U.S. does reasons, enforcing the statute’s is Pennhurst all of these For Bennett, Spending Clause. not violate present from the factually distinguishable 666,105 S.Ct. 470 at 1544. U.S. case. District School Arlington Central we Arlington, in Pennhurst and Unlike the Su- Murphy, v. Board Education statutory sufficiently clear faced with a that the Indi- recently held Court preme require- compulsory forth text which sets Act in Education with Disabilities viduals and school participating States ments on (“IDEA”) require school districts does not districts, merely statements of goals fees expert witness incurred and, long the NCLB is intent. While to en- the school district parents who sue complexi- times, length and complex, such 548 the statute. compliance with force ambiguous as to not render it ty does 2458,165 2455, L.Ed.2d 291,126 U.S. S.Ct. impose a con- Congress meant to whether (2006). that reiterated The Court 526 “ money. grant of federal dition on the legislature that a presume must ‘courts it means and means in a what says statute History Legislative C. ” there,’ held says it what a statute legisla- argue Plaintiffs Finally, that court that provision the IDEA that “ 7907(a) supports their history of tive ‘reason- parents may prevailing award at least provision, or interpretation of the part of the costs’ attorneys’ fees as able ambiguous for that the NCLB is indicates acceptance hint that ... does not even majority purposes. Spending-Clause responsible for a State IDEA funds makes history sup- legislative concludes parents for services reimbursing prevailing contention, latter ports the (quot- Id. at 2459 by experts.” rendered ambiguous. I dis- renders Germain, 503 Bank v. ing Conn. Nat’l agree. 1146, 253-54, 117 249, 112 S.Ct. U.S. (1992); 20 U.S.C.

L.Ed.2d importantly, there Initially, and most 1415(i)(3)(B)). history of legislative to look at the no need legisla- may Pennhurst, the NCLB. Courts “resort Arlington is not сon- Like necessary to inter- only when I, history tive Part A does not Title trolling here. BedRoc statutory text.” ambiguous pret NCLB’s acceptance hint merely States, 176, Ltd., v. United districts LLC and school funds makes States 1587, 8, L.Ed.2d 338 187 n. S.Ct. edu- fulfill statute’s responsible to (2004). legisla- to use appropriate is not explicitly. It says so requirements: cational plain history what “render[] tive require- educational None of NCLB’s States, 547 Zedner v. United state, compli- ambiguous.” suggest, let alone ments L.Ed.2d funding. U.S. on full federal ance is contingent J., (Scalia, As ex- concurring). Moreover, districts were and school above, exists ambiguity no plained re- NCLB’s aware 7907(a), when considered especially even without quirements applied larger statutory scheme them, part of the pay for because funding to I, only NCLB. Part A are available under Title

283 (5th 1034, appropriate Cir.1982)); Even if it were to look to F.2d 1050 N. Haven history, we legislative Bell, should be focus- 512, Bd. Educ. v. 456 n. U.S. 530 ing specific history on the of the 21, (1982) NCLB. 1912, 102 S.Ct. 72 L.Ed.2d 299 notes, § majority As the was first (criticizing the dissent “us[ing] leg- for adopted provision as a of the 1994 reau- history islative a different statute —to —of ESEA, thorization of the also known as rewrite Title IX so as to restrict its 270; Maj. op. “Goals 2000.” Im- see reach”). proving 1994, America’s Act Schools A review of some legislators’ com 14512, 3518, (originally 108 Stat. 3906 (not ments about the proposed NCLB 8902). However, codified at 20 U.S.C. Act) 2000, Goals not the Perkins confirms significantly Goals 2000 was different from did not intend for Secretary aptly NCLB. As the summa- to protect participating having States from rizes, “Goals 2000 set national goals for their own comply funds to education improvement provided the NCLB’s educational requirements. developing the States to aid them in Leahy Senator noted that “the funds are education,” improving state standards for far less than necessary, what will be leav “these but standards were intended to be ing Vermont and other large states with

voluntary.” Appellee’s Br. at 23-24. Un- financial gaps to fill.” 147 Cong. Rec. 2000, like Goals the NCLB created com- S13365, (2001). 13378 Senator Wellstone pulsory аnd seri- asked, are “Where the resources to make consequences ous for failure to sure that all the children in America have with its will- the same chance to do well? ... inNot fully short, participate; volunteer to it is you this bill. When talking start about we entirely different statute. situations I, no, funding have for title increased this, Supreme like Court has often in real dollar terms.” Id. at 13368. Sena against relying legislative cautioned on the bill, tor Feinstein defended the but ex history of one statute in interpreting an- pressed the same understanding of its See, Chao, 614, e.g., other. Doe v. 540 U.S. structure, funding explaining, “The Feder 626-27, 1204, 124 S.Ct. 157 L.Ed.2d 1122 al provides only percent Government (2004) (“Those of us who look to legislative total education funding, strength but the history wary have been expecting about this bill is that leverage tries to interpretive find help reliable outside the prod Federal share to States and school construed.”); being record of the statute Dir., responsible districts to make schools Comp. Programs Workers’ Office of real results.” Id. at Assocs., 13373.3 The bill’s v. Perini N. River opponents expressed in the House similar n. 74 L.Ed.2d 465 concerns to those voiced Senate. (“Although term ‘maritime’ oc- (2001). 1333(1) H2396, Cong. See 147 Rec. curs both in 28 2403-04 2(3) Act, Significantly, there was no these are two different discussion of changing statutes ‘each with different the historic legislative his- scheme of jurisprudential tories and our interpretations system, nation’s educational ”) largely over the course of decades.’ ‍​​‌​‌‌‌‌‌​​​​​​‌​​‌​‌​​‌‌‌‌​‌‌‌‌‌​​​‌‌‌​‌​‌​​‌‌‌‍(quoting State funds to federal funds. Workover, Inc., Thus, Boudreaux v. Am. assuming arguendo S13365, (2001). Kennedy Cong. 3. It should be noted Senator Rec. How- stated, legislation committing "In this we ever, clear, it is not even in the context of his trigger says, with a if the resources are remarks, referring. full to what he was there, provisions apply.” these do not cost of defray the entire sufficient to ing relevant is history is even legislative NCLB’s further hold I would support compliance. no case, little or it lends obligations are districts’ and school States’ argument. Plaintiffs’ 7907(a), simply consistent with Ill from transfоrm- officers prevents federal voluntary program the road from a conclusion, ing the NCLB let’s consider A mandatory us down. to take into a one. want that Plaintiffs funding. accept State decides supported is My reading of design and school officials and local State its as well as plain text of the NCLB re- programs the education implement NCLB, par- overall structure. Under They how decide under the NCLB. quired the school districts and ticipating States between to be are allocated federal dollars with extensive must within them They apparently also various programs. if the States requirements educational edu- of their whether one get to determine funding. accept choose to federal fed- “fully with funded” programs cation dis- amount for a school NCLB’s Plaintiffs’ So, consistent eral dollars. appro- congressional on dependent trict is fail- find students their reasoning, if at- proportion priation decisions and redoubling than rather ing program, in one district, not on in the school risk students different, efforts, something trying their with the NCLB’s compliance cost of citizenry for more local asking the State or reading My requirements. simply divert funding, they can govern- local recognizes State and also declare away program, from the long-standing responsibility ments’ funded,” wipe their “under program funding our administrating and largely (but dol- the federal back hands education, properly and it children’s lars). solved, Voila, at least for problem officials with charges Congress officials, if not for the the State and local Because the of that fact. knowledge struggling students. sufficiently NCLB’s This, course, exactly opposite clear, requiring compli- I hold would accomplish intended what exercise appropriate with them is an ance 6301(4) (stat- 20 U.S.C. NCLB. authority under congressional of the NCLB is purpose ing one Spending Clause. districts], schools, “holding [school aca- improving States accountable reasons, respectfully I For all of these students”). No of all demic achievement dissent. fact. can glasses alter green-tinted credit, ac- majority does not its To interpretation Plaintiffs’ outright

cept Yet, am- finding

the NCLB. Congress might

biguous, concludes I say it did. what Plaintiffs’

have meant agree.

cannot I majority’s opinion,

Contrary to the hold the NCLB’s

would and the participating

apply within those and school districts

schools fund-

states, regardless of whether

Case Details

Case Name: School District v. Secretary of the United States Department of Education

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jan 7, 2008

Citation: 512 F.3d 252

Docket Number: 05-2708

Court Abbreviation: 6th Cir.