Connecticut Sues the U.S. Over School Testing

http://www.nytimes.com/2005/08/23/nyregion/23child.html?th=&emc=th&pagewanted=print

from the NY Times:

August 23, 2005
Connecticut Sues the U.S. Over School Testing
By SAM DILLON
Connecticut sued the federal government yesterday, accusing the Bush administration of being “rigid, arbitrary and capricious” in the enforcement of its signature education law and seeking relief from a requirement that it scrap its own testing program in favor of one the state says will not help children but will cost millions.

The suit, the first by a state to challenge Mr. Bush’s No Child Left Behind law, argues that Connecticut is not being adequately reimbursed for the cost of expanding to annual testing from its current schedule of every other year.

Officials said that and other provisions of the law would force Connecticut to spend $50 million of its own money in coming years. The law specifically bans the federal government from imposing mandates without financing them.

“No matter how good its goals, and I agree with N.C.L.B.’s goals, the federal government is not above the law,” said Connecticut’s attorney general, Richard Blumenthal.

The suit opens a new front in a struggle between the federal government and the many states that have objected to the law, in some cases by passing legislative protests, as in Utah, and in others, such as Texas, by defying federal rulings.

Mr. Blumenthal, a Democrat, had sought to persuade other states to join the suit, but without success, although Maine officials said yesterday that they were seriously considering their own lawsuit.

Mr. Blumenthal said other states were reluctant because they had not yet done the studies that could prove that the federal law had caused them to spend state money on federal mandates. He said “fear of retaliation by the Bush administration” had also made some states reluctant.

The federal Department of Education called the lawsuit “unfortunate” and disputed Connecticut’s assertion that Washington has not provided money to carry out the law’s testing requirements, which it defended as reasonable.

“A core principle of No Child Left Behind is annual testing in grades three through eight - so that we know how students are doing,” Susan Aspey, a department spokeswoman, said in a statement. “Proposals to measure every two years can miss important information and in fact may provide information when it’s too late.”

“The funds have been provided for testing,” Ms. Aspey said.

Connecticut’s legal argument is based on a passage in the law - first written by Republicans during the Clinton administration - that forbids Washington from requiring states to spend their own money to carry out federal policies. It follows a similar lawsuit filed in April by school districts in three states and the nation’s largest teachers’ union.

But it goes further, arguing that the federal secretary of education, Margaret Spellings, has aggravated the harm to Connecticut by denying state requests for flexibility in complying with the law, including one to continue the state’s alternate-year testing program, which the suit says has helped make Connecticut students among the highest-ranking in the nation.

“Federal funding to Connecticut for N.C.L.B. mandates is substantially less than the costs attributable to the federal requirements of the N.C.L.B. Act,” the complaint states.

“The secretary’s insistence on every-grade standardized testing,” it states, “is unsupported by significant scientific research, and is arbitrary, capricious and contrary to law.”

Without relief from the court, Connecticut would be forced to begin to spending its own money to comply with the unfunded federal requirements this school year, Mr. Blumenthal said.

Gov. M. Jodi Rell, a Republican, expressed support for the suit.

“We in Connecticut do a lot of testing already, far more than most other states,” she said. “Our taxpayers are sagging under the crushing costs of local education. What we don’t need is a new laundry list of things to do - with no new money to do them.”

In April, when Mr. Blumenthal announced his intention to sue, he said he was in talks with several other states that were considering joining the suit. Gov. John E. Baldacci of Maine and the State Legislature have urged Attorney General Steven Rowe to sue, also arguing that the law is forcing Maine to spend state money on federal mandates.

Sarah Forster, a lawyer on Mr. Rowe’s staff, said yesterday that Maine was still studying the federal law’s impact there. “All options are on the table for us, including joining Connecticut’s suit and filing our own,” Ms. Forster said. “But we have to be realistic and look at what we can prove.”

Connecticut currently tests children in Grades 4, 6, 8 and 10. The federal law requires testing in Grades 3 through 8.

Betty J. Sternberg, the state’s education commissioner, said that a better use of the money that expanding those standardized tests would cost would be for diagnostic tests, to help teachers identify the needs of the lowest-achieving students.

“If I as commissioner believed that the high cost of the additional testing was justified by an added educational benefit to Connecticut’s students, I would be the first to advocate the expenditure,” she said.

Legal scholars said that previous lawsuits by other states against the federal government over so-called unfunded mandates have had mixed success. But David B. Cruz, a professor at the University of Southern California’s law school, called Connecticut’s suit “legally very strong” because of the law’s explicit language prohibiting unfunded mandates. Because Connecticut is one of the country’s highest-achieving states, he said, the courts are likely to view the state as a “sympathetic plaintiff.”

“They don’t look like they are trying to shirk in their obligations to children,” Professor Cruz said.

But the Achievement Alliance, a group that includes corporate and civil rights leaders, called the lawsuit “counterproductive.”

“It will hinder the education of poor and minority students,” the group said in a statement.

Mr. Blumenthal filed the suit in Federal District Court in Hartford, and it was assigned to Judge Mark R. Kravitz, who sits on the Federal District Court in New Haven.

Mr. Blumenthal participated in a conference call last week with several opponents of the federal law, including a Republican legislator who wrote a Utah law that protests the federal law’s intrusion on states’ rights and a San Francisco parent who opposes the federal law’s requirement that public schools provide information on students to military recruiters.

In an interview, Mr. Blumenthal said that Connecticut’s suit was “not a blunderbuss attack” on the law. “It’s a targeted challenge to unfunded mandates,” he said.