Some Clarity on NCLB

Below is a lengthy quote of Judge Sutton from the recently decided School District of the City of Pontiac, et al. v. Secretary of the United States Dep’t of Educ (back-story). The opinions in the case, which deadlocked, are long and mostly concern boring legal issues of statutory construction and other procedural issues which no one, apart from lawyers, care much about.  The excerpted quote, however, is a clearly written analysis of NCLB and the basic bargain it made with the states:  federal funds for achieveing progress along with substantial flexibility for achiving and defining that progress.  Read the whole thing, it is worth your time. (The quote starts at about page 48.  I've redacted some non-relevant sections and bolded the important bits.):

[T]he No Child Left Behind Act clearly requires the States (and school districts) to comply with its requirements, whether doing so requires the expenditure of state and local funds or not. A contrary interpretation is implausible and fails to account for, and effectively eviscerates, numerous components of the Act.

The basic bargain underlying the Act works like this. On the federal side, Congress offers to allocate substantial funds to the States on an annual basis—nearly $14 billion in 2008 for Title I, Part A, a 60% increase in relevant federal funding since 2001—exercising relatively little oversight over how the funds are spent. On the State side, the States agree to test all of their students on a variety of subjects and to hold themselves and their schools responsible for making adequate yearly progress in the test scores of all students. In broad brush strokes, the Act thus allocates substantial federal funds to the States and school districts and gives them substantial flexibility in deciding how and where to spend the money on various educational “inputs,” but in return the schools must achieve progress in meeting certain educational “outputs” as measured by the Act’s testing benchmarks. As the Supreme Court recently explained:

NCLB marked a dramatic shift in federal educational policy. It reflects Congress’ judgment that the best way to raise the level of education nationwide is by granting state and local officials flexibility to develop and implement educational programs that address local needs, while holding them accountable for the results. NCLB implements this approach by requiring States receiving federal funds to define performance standards and to make regular assessments of progress toward the attainment of those standards. 20 U.S.C. § 6311(b)(2). NCLB conditions the continued receipt of funds on demonstrations of  “adequate yearly progress.” Ibid.

Horne v. Flores, __ U. S. __, 129 S. Ct. 2579, 2601 (2009). The school districts’ position—that they can accept the federal dollars, spend them largely as they wish, yet exempt themselves from the Act’s requirements if compliance would require any local money—undoes this bargain by nullifying some provisions of the Act and undermining several others.
Accountability. Accountability is the centerpiece of the Act, and a plausible interpretation of the legislation cannot ignore that reality. Instead of focusing on how much money school districts spend on each child or “dictating funding levels,” the Act “focuses on the demonstrated progress of students through accountability reforms.” Id. at 2603. The Act begins with a “Statement of Purpose” that drives home Congress’s interest in establishing accountable public schools: “ensuring . . . high-quality academic assessments [and] accountability systems”; “holding schools, local education agencies, and States accountable for improving the academic achievement of all students”; “improving and strengthening accountability”; and “providing . . . greater responsibility for student performance.” 20 U.S.C. §§ 6301(1), (4), (6), (7).

Flexibility. The school districts’ interpretation is inconsistent not only with the Act’s accountability requirements but also with the flexibility the Act gives States and school districts in return for increased responsibility for student achievement. As the Act’s Statement of Purpose makes clear, that is the central tradeoff of the Act: “providing greater decisionmaking authority and flexibility to schools and teachers in exchange for greater responsibility for student performance.” id. § 6301(7) (emphasis added); see also Horne, 129 S. Ct. at 2601 (the Act “reflects Congress’ judgment that the best way to raise the level of education nationwide is by granting state and local officials flexibility to develop and implement educational programs that address local needs, while holding them accountable for the results”). Unlike most spending programs, this one comes with few strings telling the States how they should comply with its conditions. Under the Act, States develop their own curricula and standards, 20 U.S.C. § 6311(b)(1), their own tests to assess whether students are meeting those standards, id. § 6311(b)(3), and their own definitions of progress under those standards, id. § 6311(b)(2)(B), so long as the progress culminates in near-universal proficiency by 2014, id. § 6311(b)(2)(F).

This flexibility extends to spending as well. As the school districts rightly acknowledge, the Act “provide[s] school districts with unprecedented new flexibility in their allocation of Title I funds.” Final Reply Br. of Pontiac Sch. Dist. at 3 (internal quotation marks omitted). Some federal funds, to be sure, must be spent in certain ways. See, e.g., 20 U.S.C. § 6303 (reserving some Title I, Part A funds for school improvement); id. § 6317(c)(1) (same); id. § 6318(a)(3)(A) (reserving some funds for parental involvement programs); id. § 6319(1) (reserving some funds for professional development). And the Act strictly confines the use of Title I funds to geographic areas with heavy concentrations of low-income students. See id. § 6313(a). But within these areas and with respect to these priority students, the Act gives States and school districts substantial flexibility in choosing how to spend the money. For instance: Section 6314 gives school districts wide discretion to consolidate funds from various sources and to focus them on certain schools in whatever ways will improve student performance there; § 6313(b) gives school districts discretion to transfer funds between schools within certain guidelines; and § 7305b allows States and school districts to transfer up to 50% of the funds allotted to other education programs to supplement their funds under Title I, Part A.

The substantial flexibility the Act gives recipients over federal funds is surpassed by the near-complete flexibility they retain over their own funds. The only limitation is that participating States cannot reduce their own spending and offset it with federal funding but must use the Act’s federal dollars to supplement, not supplant, their own. 20 U.S.C. §§ 6321, 7901. Beyond that basic requirement—a prohibition on fiscal cheating, really—the States can use their dollars however they see fit, whether for teachers or for computers or for facilities or for whatever else they think will help their students the most.

The express and unprecedented flexibility the Act gives to the States in prioritizing the spending of federal dollars—especially in Title I, Part A—cannot coexist with an interpretation of the statute that allows school districts to exempt themselves from the accountability side of the bargain whenever their spending choices do not generate the requisite achievement. Were the school districts correct, a State could use this flexibility to focus its federal and local resources almost exclusively on improving, say, teacher quality—a legitimate goal no doubt, but one that would allow the State to sidestep the Act’s mandatory assessment requirements by contending that it lacked the funds to administer them or to make progress under them. Sch. Dist. of City of Pontiac v. Sec’y of United States Dep’t of Educ., 512 F.3d 252, 284 (6th Cir. 2008) (McKeague, J. dissenting). That is not what Congress had in mind. It gave the States a clear and consequential choice: between taking the bitter (accountability) with the sweet (unprecedented flexibility in spending federal and state dollars) or leaving the money on the table.

Costs of Compliance. Not surprisingly, in view of the expansive flexibility that the Act gives States in spending federal and local funds, the Act says nothing about the bill of particulars at the heart of the school districts’ complaint: the costs of complying with the Act’s requirements. How could it be otherwise? The Acts’ spending flexibility necessarily makes it impossible to calculate or even define the costs of complying with the Act’s requirements.

The primary formula for allocating Title I, Part A grant money does not say a word about costs of compliance. See 20 U.S.C. §§ 6313(c), 6333(a), 6334(a), 6335(a)–(c), 6337. While the Act asks States to submit plans to the Secretary, id. § 6311, and asks school districts to submit plans to the States, id. § 6312, it does not require either entity to estimate the cost of compliance. Nor, in fulfilling their various reporting responsibilities under the Act, must the States or school districts estimate the costs of compliance. See, e.g., id. §§ 6311(h), 6316(a)(1)(C). If, as the Supreme Court recently explained, the Act “expressly refrains from dictating funding levels,” Horne, 129 S. Ct. at 2603, why would Congress exempt failing school districts from the accountability requirements based on inadequate “funding levels”? The school districts have no answer.

But even if Congress wished to make costs of compliance a legitimate excuse for, say, inadequate yearly progress, how would it do so? Once Congress decided to measure accountability by educational outputs (gauged by tests scores), as opposed to educational inputs (gauged by dollars), it made objective measurements of compliance costs virtually impossible. Any effort to measure these costs surely would vary from school to school, if not from student to student, and they surely would vary from year to year. The phrase “costs of compliance” has no discernible meaning in this context, as the Act leaves it to the States, no matter how little or how much funding Congress provides, to make discretionary cost choices about how to make meaningful achievement-related progress.

Take a cost estimate for adding an extra hour to the school day, for lengthening the school year or for hiring more math or reading teachers—all plausible ways to improve a school’s achievement scores. Each innovation has an estimable cost, to be sure. But that does not establish that the estimate would lead to the requisite progress. And if it did not, then what? Perhaps extending the school day by one more hour, extending the school year by one more week or hiring one more math or reading teacher would do the trick. But maybe not. What works for one school district might not work for another. What, indeed, works for one classroom might not work for the classroom next door, given the correlation between great teachers and great teaching—and the occasional operation of that principle in reverse. Even more discrete costs like developing and administering tests cannot be accounted for in advance given the considerable flexibility States have under the Act in implementing those requirements. Within certain general limits, a State may develop whatever curricular standards and tests it wants. 20 U.S.C. § 6311(b). The State may use pre-existing standards that meet the Act’s requirements, id. § 6311(b)(1)(F), or it may create new ones.

In their complaint, to use one example, the school districts say that Brandon Town School District “estimates that . . . it needed to spend $390,000 more than it received in NCLB Title I funding to ensure that the school makes [adequate yearly progress].” Compl. ¶ 65. The school district may be right, and we have no license to say that it is not at this Rule 12(b)(6) stage of the case. The issue, however, is not whether the school districts can fairly say that compliance with “adequate yearly progress” requires more federal dollars than the Secretary has allocated to them. It is whether a State could tenably think that the Act excuses non-compliance whenever a school district maintains that it has insufficient resources to make the required progress. Surely every school district could do more with more money. And if that is the case, every failing school district could do more with more federal money—and maybe enough to make adequate yearly progress. It is hard to imagine when—or, for that matter, why—a failing school would ever concede that it was getting sufficient federal funds to make such progress.

“Reflecting a growing consensus in education research that increased funding alone does not improve student achievement,” the Act moves from a dollars-and-cents approach to education policy to a results-based approach that allows local schools to use substantial additional federal dollars as they see fit in tackling local educational challenges in return for meeting improvement benchmarks. Horne, 129 S. Ct. at 2603 & n.17. The Act, in short, rejects a money-over-all approach to education policy, making it implausible that the heartland accountability measures of the law could be excused whenever schools, exercising their flexibility over how to spend federal and local dollars, decided they cost too much.

* * * * *

Depending on whom you ask, the No Left Child Behind Act might be described in many ways: bold, ground-breaking, noble, naïve, oppressive, all of the above and more. But one thing it is not is ambiguous, at least when it comes to the central tradeoff presented to the States: accepting flexibility to spend significant federal funds in return for (largely) unforgiving responsibility to make progress in using them. The theme appears in one way or another in virtually every one of the Statements of Purpose of the Act, and it comes across loud and clear in the remaining 674 pages of legislation.

That said, I have considerable sympathy for the school districts, many of whom may well be unable to satisfy the Act’s requirements in the absence of more funding and thus may face the risk of receiving still less funding in the future. Yet two Presidents of different parties have embraced the objectives of the Act and committed themselves to making it work. So have a remarkably diverse group of legislators. If adjustments should be made, there is good reason to think they will be. But, for now, it is hard to say that the judiciary will advance matters by taking the teeth out of the hallmark features of the Act. It is the political branches, not the judiciary, that must make any changes, because the Act’s requirements are clear, making them enforceable upon participating States and their school districts.