Michael D. Barolsky · April 2008
76 GEO. WASH. L. REV. 725 (2008)
In 2002, President Bush signed the No Child Left Behind (“NCLB”) Act into law, taking unprecedented steps to set and enforce a national education policy for state primary and secondary public school systems.14 NCLB is the latest revision to the Elementary and Secondary Education Act (“ESEA”), which was first enacted in 1965 to bridge the gap between wealthy and poor school systems. NCLB, however, goes much further than providing needed funding to state school systems. The Act implements a national accountability system, which requires each school to test students in the third through twelfth grades in literacy, mathematics, and science every year. This testing is part of a system designed to statistically measure the effectiveness of each school and penalize those schools failing to make “Adequate Yearly Progress” (“AYP”).18 The penalties vary with the number of years the school fails to show AYP and range from additional obligations, such as developing an improvement plan, to withholding federal education funds.
NCLB is premised on Congress’s ability to attach conditions to the funds allocated to states under a contract theory. This power requires states and schools to adhere to every element of the Act to be eligible for federal funding.
This Note examines the components of NCLB in light of constitutional limits on congressional conditional spending. It argues that NCLB is unconstitutionally coercive and violates state sovereignty by forcing states to adopt NCLB’s broad, controversial education philosophy or lose billions of dollars in federal education funding. In the face of these coercive measures, this Note proposes modest changes to NCLB that will render it constitutional.
Part I briefly discusses NCLB’s main provisions, the Act’s history, and the tensions it has created within school districts and states. Part I also introduces the Supreme Court’s conditional spending jurisprudence and explains how it has been applied in a variety of contexts. Part II juxtaposes NCLB with the limits of Congress’s spending powers and shows why NCLB breaches the constitutional boundaries of that authority. Part III proposes some modest changes to NCLB that will bring it within Congress’s constitutional powers and relieve the tension between Congress and the several states.
