State law left behind?

A former lawyer for the Washoe County School District says the Nevada Legislature made a fatal error in not providing for an “opt-out” from the federal Elementary and Secondary Education Act (ESEA) of 2003, also known as the “no child left behind” law, proposed by the Bush administration. Jeffrey Blanck also faulted state lawmakers for failing to foresee that Congress and the Bush administration, “as they have for years with special education,” would fail to fully fund ESEA.

But a spokesperson for the district says opting out of ESEA isn’t really a reasonable choice for the district.

Blanck, former general counsel for the Washoe school district, wrote in a Sparks Tribune guest editorial Friday that ESEA “states that if the federal government doesn’t provide adequate funding for NCLB, then the states don’t have to [comply with the law]. You would think someone on the [Washoe School] Board of Trustees would bring this up to the Legislature and attempt to include this provision in state law. … Some states like Vermont and West Virginia say they will challenge the law…But in Nevada we can’t do that because now it is state law.”

ESEA, now 2 years old, uses federal funding to force states to bring students up to proficiency standards set by the states themselves for reading and math. The target date for full proficiency is 2014. The law has prompted widespread discontent in school districts and state legislatures. Republican state lawmakers around the nation have led efforts to “opt-out,” though no state has yet done so.

However, states have enacted various provisions to cope with the federal mandates. Vermont, for example, has banned the use of state funds for implementation of ESEA in an effort to force the federal government to fully fund the law. In some states, funding for gifted-students programs has been diverted to accomplish compliance with ESEA.

The law has also created divisions within the political parties, with traditional Republicans trying to support the Bush program and more ideologically conservative Republicans objecting to the ESEA’s intrusions into state authority. The ESEA also created a divisive scene at the Washoe County Democratic Party county convention Saturday (see adjoining story).

Bush’s secretary of education, Rod Paige, has insisted all along that the law is fully funded—“It is sufficiently, abundantly funded”—and threatened Utah lawmakers with the loss of federal education funding when that state was seriously considering opting out.

However, William Mathis, a school finance professor at the University of Vermont who is also a school superintendent, ran the numbers for 18 states and said that they need an average of 28 percent more money than they’re getting from Washington to comply with the law. And funding provided by Congress is less than congressional estimates of the cost of ESEA.

Washoe County School District spokesperson Steve Mulvenon says, “Attorneys from all over the country have read the law, and none of them save Blanck seem to think this is worth some sort of legal challenge. Believe me, if any of them did, they would have pursued it long before now.”

Mulvenon disputes Blanck’s contention that state lawmakers did not know the feds would not fully fund ESEA. “They knew that going into it …There was extensive testimony provided by school districts about the funding shortfall, and Senator Raggio was very clear in asking school districts to provide to Senate Finance [Committee] a detailed analysis of what costs districts are going to incur in complying…”

After the school districts thus documented the problem, the Nevada lawmakers apparently felt that the objectives of ESEA were worth having Nevada eat the unfunded portions of the federal mandates.

While ESEA says states don’t have to comply if the law is not fully funded, it does not say who gets to decide whether the law is fully funded. With states saying it isn’t and the Bush administration saying it is, the power seems to lie with Bush because the administration has the power to withhold federal education dollars.

The problem has been illustrated in Utah, the state that has come closest to opting out. A legislative committee estimated the state’s compliance cost at $200 million to $400 million. Paige told the state that if it opted out he would withhold $106 million. The state was thus faced with opting out and losing $106 million or staying in and having to pony up $94 million to $294 million. Fighting the administration in the courts would pit Utah, with limited resources, against the nearly limitless legal resources of the U.S. Department of Education, a choice that would be similar for Nevada.