NCLB unfunded mandate lawsuits

The U.S. Sixth Circuit Court of Appeals, by a 2-1 decision, reinstated a lawsuit brought by local school districts and others challenging the No Child Left Behind law as an unfunded federal mandated. NCLB says that nothing in the Act “shall be construed to . . . mandate a State or [local school district] to spend any funds or incur any costs not paid for under this Act.” The schools argued that the federal government should not penalize the schools, such as withholding federal monies, if the schools do not spend local and state monies in order to comply with NCLB.

Congress can pass laws under the authority of the Constitution’s Spending Clause. But when doing so, Congress must also pay for the costs associated with implementing the law. If not, the law must give clear notice to the states of their obligations, such as whether the state and not the federal government must pay. 

The court found that, given NCLB’s unfunded mandate provision, the law is unclear where funding responsibility falls. The U.S. Department of Education put forward two alternative interpretations of the unfunded mandate language (yes, the fact that the same words might have different meanings does not alone prove the schools’ point that the language is not clear). The court also noted that the previous U.S. Secretary of Education’s pronouncements on the issue confirmed the schools’ positions. The court “wondered” how a state official could be on clear notice when the Secretary was assuring the states that the law did not require use of state and local money. 

The court did not decide the ultimate issue, whether NCLB is an unfunded mandate, but did decide the schools have a stated a valid legal claim and sent the matter back to the trial court for further proceedings.

The dissent compared state and local education officials to the denizens of the Land of Oz who simply took the federal money and then complained. The dissent viewed the law as clear and would not have reinstated the case for a full airing. The majority and dissenting opinions are 29 single space pages. Enjoy reading!

Seems to me, however, that the provision is quite clear. States and local school districts are not required to pay the costs of implementing the law.   But then again, maybe I just can’t see well enough.

School district implementation of Megan's Law

Guest blogger, Kyle Berman, writes about Pennsylvania’s version of Megan’s Law and implementation of notice and information dissemination procedures for a school district. Kyle is a member of the Education Law Group with a practice emphasis in Labor and day-to-day school operations.  Click here to find out more about Kyle’s background and contact information.

What is a school district to do when it receives a notice concerning a “sexually violent predator” as classified by the courts? There are several duties imposed on a school district following a Megan's Law notification - but you would not know it by examining only the statute itself. The law is not contained at one publicly accessible site, but the Pennsylvania State Police’s website provides some information.

Pennsylvania’s version of Megan’s Law specifies various community notifications, the District being only one of many persons and organizations to be notified of the predator’s

presence. Others include the victim, the neighbors, director of the county children and youth department, directors of any day care facilities and superintendents of schools. The notice is provided to schools both in the same municipality and those within a one-mile radius of the predator’s home, work, and or school.

The police have an affirmative duty to notify the District. However, the statute contains no requirement that the notification to the District result in further notifications by the District. By the same token there is nothing barring you from telling others.

While the statute does not require anything further of the District once the Superintendent has been notified, the regulations pertaining to Megan's Law impose further duties on a District. Specifically, 37 Pa. Code §56.4 provides that:

the superintendent . . . shall disseminate the information regarding the sexually violent predator to individuals whose duties include supervision of or responsibility for students. Those individuals so notified shall include administrators, teachers, teachers aids, security officials, crossing guards, groundskeepers, bus drivers and the like. Individuals whose duties include supervision of or responsibility for students shall be instructed to promptly notify the principal or other designated official if the sexually violent predator is observed in the vicinity. The principal or other designated official shall promptly notify the local law enforcement agency if the presence of the sexually violent predator appears to be without a legitimate purpose or otherwise creates concern for the safety of the students. . . .

Therefore, a District will need to notify the “administrators, teachers, teachers aids, security officials, crossing guards, groundskeepers, bus drivers and the like.” The District also needs to designate an appropriate individual as the point of contact for school personnel who might see the predator in the vicinity of the school. The contact person is also responsible for passing-on information from school personnel to the local police.

Although a District does not need to post the information in the school, the District will need some mechanism to disseminate the information to those that are required to have it.

As above, there is no single source on-line for the actual statute because the courts have repeatedly reviewed and struck-down portions of it. In response the legislature has enacted modified versions of the excised portions. Because of all the changes that have crept into the original Act, it is well worth your while to consult with counsel if you are ever faced with such a notice sent to your school district.

Exhaustion of remedies in special education

The federal District Court for the Middle District of Pennsylvania issued a seemingly routine decision that is more than it appears.  Vicky M. v. Northeastern Educational I.U. 19  (although the docket numbers and plaintiff names differ, this decision appears to otherwise be the same as John G. v. Northeastern Educational I.U. 19, Civ A. 06-1900, --- F. Supp. 2d ---, 2007 WL 1450365 (M.D. Pa.). 

The court’s treatment of the Section 1983 claims should be reconsidered in light of A.W. v. The Jersey City Public Schools  341 F.3d 234 (3d Cir. 2007), which was issued nine days later. But more than that, the Third Circuit’s treatment of exhaustion of remedies in such cases now needs to be revisited, as Vicky M. unintentional shows.

Because the family in Vicky M. sought money damages, the court ruled exhaustion was exempted

as futile. The court, relying on and quoting W.B. v. Matula, 67 F.3d 484, 495 (3d Cir. 1995), wrote at page 18, “Recognizing that damages are available under § 1983, but not under the IDEA administrative procedures, the Matula court then concluded that ‘by its plain terms [IDEA] does not require exhaustion where the relief sought is unavailable in an administrative proceeding.’” Vicky M. thereafter discusses some legislative history regarding previous incarnations of the IDEA, as discussed in previous cases, as further supporting the exhaustion exception. 

But A.W. now controls, not Matula, and families no longer can pursue money damages claims via a § 1983 cause of action. This knocks down the first pillar of support to the exception. The legislative history relied on is not from the current IDEA as passed in 2004, knocking out the second pillar. And regardless of current legislative history – an oxymoron, to be sure – the plain text of IDEA of 2004 extends an IDEA-based cause of action only to those “aggrieved” by the administrative decision, 20 U.S.C. § 1415(i)(2)(A), taking out a third pillar of a now unsupportable exception.

The “implementation” exception to exhaustion noted by the court is, by all accounts, supported only by the few ancient statements of legislative intent. In contrast, exhaustion under IDEA of 2004, as well as previous versions, is required not only for “identification, evaluation, or educational placement,” but also “the provision of a free appropriate public education.” 20 U.S.C. § 1415(b)(6). Implementation – whether the absolute failure or, more often, a dispute over appropriateness – is a part of FAPE. Further, the 2006 federal regulations have detailed provisions and procedures for filing complaints with the state educational agency, including complaints alleging the “failure to provide appropriate services.” 34 C.F.R. §§ 300.151-300.153

Given the complexities involved in special education, especially about the quality of implementation, and given the procedures in place as well as the recent turn of events stemming from A.W., it would be a wonder if a court did not require exhaustion in just about every conceivable instance and, thereby, have the benefit of “expert” administrative review.