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 construction and mandate waivers

On November 21, 2007, the Pennsylvania Supreme Court in Mechanical Contractors Association of Eastern Pennsylvania, Inc. v. Commonwealth, et al., ruled that public schools may seek a waiver of the multi-prime requirement for construction projects. 

In the past, schools undertaking construction projects had to bid the projects to at least four basic prime contractors - a general contractor, a mechanical contractor, an electrical contractor, and a plumbing contractor.  In the experience of many, that requirement led to higher construction costs and greater claims and lawsuits against schools.  Now, schools can attempt to avoid these problems and expenses by applying for a waiver of the multi-prime requirement from the Department of Education.  The Department must decide, however, whether to grant the waiver. 

Thanks to Ron Williams, Co-Chair of the Fox, Rothschild construction law group for this update.  Contract Ron, or Brian Subers, the other Co-Chair of the construction law group, about construction related legal issues. 

Another ill-gotten mandate for Pennsylvania public schools

In Lower Merion School District v. Doe, 2007 WL 2792927 (Pa.), through some unfortunate legal reasoning, the Pennsylvania Supreme Court has interpreted § 504 of the Rehabilitation Act, 29 U.S.C. § 794, to mean that a public school district must provide occupational services to a dual-enrolled private school student. In so doing, the court expands the dual enrollment and the Veschi decision mandates to provide public support for private schools. 

In this case, the district evaluated the student, found he was not eligible for special education and related services but was eligible as a protected handicapped student under § 504 and Chapter 15 of the Pennsylvania education regulations, 22 Pa. Code Chap. 15. The district therefore offered a program of appropriate supportive services in order for the student to access his public education. Parents rejected the offer, enrolled student in a private kindergarten, and dually enrolled student in the public school under § 502 of the Pennsylvania School Code, 24 P.S. § 5-502. 

The district argued that its § 504 requirement is limited to only providing equal access to its federally funded programs. Stated another way, one might say § 504 is not a mandate for a public school to intrude into a private school program and fix the private school’s “discrimination.” The Pennsylvania Supreme Court rejected the district’s argument based on some significant misunderstandings.

To begin with, the court was of the opinion that § 504 is “remedial legislation” to be interpreted broadly. But § 504 is legislation enacted under the Constitution’s spending clause. Barnes v. Gorman, 536 U.S. 181, 190 n.3 (2002). As such, the legislation is to be interpreted narrowly, that is, the funding mandate must be spelled out unequivocally to the recipient of federal funds. No case has come to my attention, and none is cited by the court, stating that the legislation gives a funding recipient clear notice that the recipient must address another entity’s lack of access or accommodations for disabled persons.

The court’s next mistake was in concluding the § 504 FAPE obligation applies to all persons living within the boundaries of the school district. In this regard, the court interpreted the federal regulatory phrase “in the recipient’s jurisdiction,” 34 CFR 104.33(a), out of context and law. The regulations cannot expand the scope of legislation, and § 504 itself applies for the benefit of persons participating in a program receiving federal funds. “Jurisdiction” here is a legal limitation and is not, as interpreted by the court, the equivalent of geographic boundaries. Indeed, in another regulatory passage, 34 CFR 104.32(a), cited by the court, the regulations specifically distinguish “residing” in the district’s jurisdiction (in the context of the district’s § 504 child find obligation), thus showing awareness by the regulators of the geographic and legal juridical distinction. Ironically, the court used this specific reference to support its general conclusion, thereby violating an elementary rule of construction.

To its credit, the court noted the state regulations are not intended to expand the federal § 504 requirement. But having already improperly expanded and confused the federal mandate, the point of the state regulations was lost.

In the end, however, the court’s errors regarding federal law are mooted where Pennsylvania’s dual enrollment mandate extends greater protections. Although the court offered no significant discussion of § 502 of the School Code, which permits dual enrollment, as the court noted, students “enrolled” in a district are entitled to services, regardless whether also attending a private school. 

To a practitioner familiar with this area of the law, the decision evidences misunderstanding of child find, FAPE, and various disabilities education mandates, particularly in misconstruing child find obligations to create a right to require the public to make a private school accessible.