# Pontiac School Dist v. Sec'y US Dept Ed

> Court of Appeals for the Sixth Circuit · October 16, 2009

URL: https://www.frixlaw.com/law-library/cases/2978524

## Case

- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** October 16, 2009
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2978524

## How later opinions describe it (automated extraction)

- holding that city of Rochester taxpayers could not sue the town of Penfield on the theory that Penfield’s zoning practices would increase Rochester taxes, because Rochester was not a party
- explaining that legal questions that are answered “differently in different settings” lack fitness for review
- finding standing where, although one alleged injury might not occur “for thousands of years,” another injury allegedly would occur very soon
- concluding, in a challenge to fishing regulations, that the United States adequately represented tribes who were, therefore, not necessary parties

## Opinion text

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0366p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
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SCHOOL DISTRICT OF THE CITY OF PONTIAC,

Plaintiffs-Appellants, --
et al.,

-
No. 05-2708

,
>
-
v.

-
-
SECRETARY OF THE UNITED STATES
-
DEPARTMENT OF EDUCATION,
Defendant-Appellee. -
N
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 05-71535—Bernard A. Friedman, District Judge.
Argued: December 10, 2008
Decided and Filed: October 16, 2009
Before: BATCHELDER, Chief Judge; MARTIN, BOGGS, DAUGHTREY, MOORE,
COLE, CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE,
GRIFFIN, KETHLEDGE, and WHITE, Circuit Judges.
_________________
COUNSEL
ARGUED: Robert H. Chanin, BREDHOFF & KAISER, P.L.L.C., Washington, D.C., for
Appellants. Alisa B. Klein, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee. ON BRIEF: Robert H. Chanin, Jeremiah A. Collins, BREDHOFF &
KAISER, P.L.L.C., Washington, D.C., Dennis R. Pollard, THRUM LAW FIRM, P.C.,
Bloomfield Hills, Michigan, Alice Margaret O’Brien, CALIFORNIA TEACHERS
ASSOCIATION, Burlingame, California, Philip A. Hostak, OFFICE OF GENERAL
COUNSEL, NATIONAL EDUCATION ASSOCIATION, Washington, D.C., for
Appellants. Alisa B. Klein, Mark B. Stern, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.
COLE, J., (pp. 2–36) delivered an opinion in favor of reversing the district court’s
judgment of dismissal, in which MARTIN, DAUGHTREY, MOORE, CLAY, GILMAN,
and WHITE, JJ., joined, and in which GIBBONS, J., joined in part. SUTTON, J., (pp.
37–67) delivered a separate opinion concurring in the order affirming the district court’s
judgment, in which BATCHELDER, C.J., BOGGS, COOK, and KETHLEDGE, JJ., joined,
and in which McKEAGUE, J., joined as to Part II only, with McKEAGUE, J., (pp. 68–88)
also delivering a separate opinion concurring in affirming dismissal, in which ROGERS and

1
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 2
of the United States Dep’t of Educ.

GRIFFIN, JJ., joined as to Part II only. GIBBONS, J., (pp. 89–93) delivered a separate
opinion in favor of reversing the judgment of the district court.
_________________

OPINION
_________________

COLE, Circuit Judge. The controversy presently before this Court is neither
particularly complicated nor inherently political. Understanding the precise question before
us means understanding what this case does not present—namely, this case does not ask us
to enter the political arena to judge the relative merits of the No Child Left Behind Act of
2001 (“NCLB” or “the Act”), 20 U.S.C. §§ 6301–7941. Also, this case has nothing to do
with the ongoing debate between the various advocates of state versus federal educational
funding. Rather, we need to answer only a straightforward question of statutory
interpretation: Whether, analyzed under the Spending Clause of the United States
Constitution, the obligations set forth in NCLB are unambiguous such that a state official
would clearly understand her responsibilities under the Act.

Plaintiffs-Appellants are school districts and education associations (collectively,
1
“Plaintiffs”) that receive federal funding under NCLB in exchange for complying with
the Act’s various educational requirements and accountability measures. Based on the
so-called “Unfunded Mandates Provision,” which provides that “[n]othing in this Act
shall be construed to . . . mandate a State or any subdivision thereof to spend any funds
or incur any costs not paid for under this Act,” 20 U.S.C. § 7907(a), Plaintiffs filed suit
in district court against the Secretary of the United States Department of Education (the

1
Plaintiffs consist of nine school districts from three different States (Michigan, Texas, and
Vermont) and ten education associations from ten different States (Connecticut, Illinois, Indiana,
Michigan, New Hampshire, Ohio, Pennsylvania, Texas, Utah, and Vermont). The school districts are
Pontiac School District, Laredo Independent School District, Leicester Town School District, Neshobe
Elementary School District, Otter Valley Union High School, Pittsford Town School District, Rutland
Northeast Supervisory Union (which itself contains eleven school districts), Sudbury Town School District,
and Whiting Town School District (collectively, the “school district Plaintiffs”). The education
associations are the National Education Association (“NEA”) and ten NEA-affiliate education associations:
the Connecticut Education Association, the Illinois Education Association, the Michigan Education
Association, the Ohio Education Association, the Reading Education Association, the Utah Education
Association, the Indiana State Teachers Association, the Texas State Teachers Association, NEA-New
Hampshire, and the Vermont NEA (collectively, the “education association Plaintiffs”).
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 3
of the United States Dep’t of Educ.

“Secretary”) seeking a declaratory judgment that they need not comply with the Act’s
requirements where doing so would result in increased costs of compliance not covered
by federal funds. The district court concluded that Plaintiffs must comply with the Act’s
requirements regardless of any federal-funding shortfall and, accordingly, granted the
Secretary’s motion to dismiss the complaint for failure to state a claim upon which relief
can be granted.

I. BACKGROUND

A. The No Child Left Behind Act

On January 8, 2002, then-President George W. Bush signed NCLB into law. The
Act—“a comprehensive educational reform”—amended the Elementary and Secondary
Education Act of 1965 (“ESEA”), Pub. L. No. 89-10, 79 Stat. 27 (codified as amended
at 20 U.S.C. §§ 6301–7941 (2003)). See Connecticut v. Spellings, 453 F. Supp. 2d 459,
468 (D. Conn. 2006). The ESEA targeted funding to students in low-income schools,
and its purposes included overcoming “any effects of past racial discrimination.”
George v. O’Kelly, 448 F.2d 148, 151 (5th Cir. 1971); accord Barrera v. Wheeler, 475
F.2d 1338, 1340 (8th Cir. 1973); United States v. Jefferson County Bd. of Educ., 372
F.2d 836, 851 (5th Cir. 1966). The ESEA was periodically reauthorized and amended
over the next few decades.

In contrast to prior ESEA iterations, NCLB “provides increased flexibility of
funds, accountability for student achievement and more options for parents.” 147 Cong.
Rec. S13365, 13366 (2001) (statement of Sen. Bunning). The Act focuses federal
funding more narrowly on the poorest students and demands accountability from
schools, with serious consequences for schools that fail to meet academic-achievement
requirements. Id. at 13366, 13372 (statements of Sens. Bunning, Landrieu, and
Kennedy). States may choose not to participate in NCLB and forgo the federal funds
available under the Act, but if they do accept such funds, they must comply with NCLB
requirements. See, e.g., 20 U.S.C. § 6311 (“For any State desiring to receive a grant
under this part, the State educational agency shall submit to the Secretary a plan . . . .”)
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 4
of the United States Dep’t of Educ.

(emphasis added); see also Spellings, 453 F. Supp. 2d at 469 (“In return for federal
educational funds under the Act, Congress imposed on states a comprehensive regime
of educational assessments and accountability measures.”). In addition, with enumerated
exceptions, under NCLB “the Secretary may waive any statutory or regulatory
requirement . . . for a State educational agency, local educational agency, Indian tribe,
or school through a local educational agency, that . . . receives funds under a program
authorized by this Act.” 20 U.S.C. § 7861(a).

Title I, Part A, of NCLB, titled “Improving Basic Programs Operated by Local
Educational Agencies,” continues to pursue the objectives of the ESEA and imposes
extensive educational requirements on participating States and school districts, and,
likewise, provides the largest amount of federal appropriations to participating States.
For example, in fiscal year 2006, NCLB authorized $22.75 billion in appropriations for
Title I, Part A, compared to $14.1 billion for the remaining twenty-six parts of NCLB
combined. Title I, Part A’s stated purposes include meeting “the educational needs of
low-achieving children in our Nation’s highest-poverty schools, limited English
proficient children, migratory children, children with disabilities, Indian children,
neglected or delinquent children, and young children in need of reading assistance.” 20
U.S.C. § 6301(2).

In addition to Title I, Part A, NCLB establishes numerous other programs,
including a literacy initiative for young children and poor families (Title I, Part B),
special services for the education of children of migrant workers (Title I, Part C),
requirements that all teachers be “highly qualified” (Title II, Part A), and instruction in
English for children with limited English ability (Title III). Plaintiffs’ complaint focuses
on the educational requirements and funding provisions of Title I, Part A.

To qualify for federal funding under Title I, Part A, States must first submit to
the Secretary a “State plan,” developed by the State’s department of education in
consultation with school districts, parents, teachers, and other administrators. 20 U.S.C.
§ 6311(a)(1). A State plan must “demonstrate that the State has adopted challenging
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 5
of the United States Dep’t of Educ.

academic content standards and challenging student academic achievement standards”
against which to measure the academic achievement of the State’s students. Id.
§ 6311(b)(1)(A). The standards in the State plan must be uniformly applicable to
students in all of the State’s public schools, and must cover at least reading or language
arts; math; and, by the fourth grade, science skills. Id. § 6311(b)(1)(C).

States also must develop, and school districts must administer, assessments to
determine students’ levels of achievement under plan standards. Id. § 6311(b)(2)(A).
These assessments must show the percentage of students achieving “proficiency” among
“economically disadvantaged students,” “students from major racial and ethnic groups,”
“students with disabilities,” and “students with limited English proficiency.” Id.
§ 6311(b)(2)(C)(v)(II). Schools and districts are responsible for making “adequate
yearly progress” (“AYP”) on these assessments, meaning that a minimum percentage of
students, both overall and in each subgroup, must attain proficiency. 34 C.F.R.
§ 200.20(a)(1).

A school’s failure to achieve AYP triggers other requirements of Title I, Part A.
See 20 U.S.C. § 6316(b). If a school fails to make AYP for two consecutive years, it
must be identified by the local educational agency for school improvement. 20 U.S.C.
§ 6316(b)(1)(A). Among other things, a school in improvement status must inform all
of its students, including those who have been assessed as proficient, that they are
permitted to transfer to any school within the district that has not been identified for
school improvement. Id. § 6316(b)(1)(E)(i). The school also must develop a two-year
plan setting forth extensive measures to improve student performance, including further
education for teachers and possible before- or after-school instruction or summer
instruction. Id. §§ 6316(b)(3)(A)(iii), (ix).

If a school does not achieve AYP after two years of improvement status, it is
“identif[ied] . . . for corrective action.” Id. § 6316(b)(7)(C)(iv). Corrective action
involves significant changes, such as replacing teachers who are “relevant to the failure
to make [AYP],” or instituting an entirely new curriculum. Id. § 6316(b)(7)(C)(iv)(I).
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 6
of the United States Dep’t of Educ.

If, after a year of corrective action, a school still has not reached AYP, the district must
restructure the school entirely; options for restructuring include “[r]eopening the school
as a public charter school,” replacing the majority of the staff, or allowing the State’s
department of education to run the school directly. Id. § 6316(b)(8)(B)(i).

The issue of who must pay to implement these requirements is the heart of this
case. NCLB requires that States use federal funds made available under the Act “only
to supplement the funds that would, in the absence of such Federal funds, be made
available from non-Federal sources for the education of pupils participating in programs
assisted under this part, and not to supplant such funds.” 20 U.S.C. § 6321(b)(1). That
is, States and school districts remain responsible for the majority of the funding for
public education, and the funds distributed under Title I are to be used only to implement
Title I programming, not to replace funds already being used for general programming.2

While Plaintiffs recognize that the majority of funding for education continues
to come from state and local sources, they contend that NCLB does not require them to
spend the money drawn from state and local sources on the additional programs required
by NCLB. They point to § 7907(a), entitled “Prohibitions on Federal government and
use of Federal funds,” often referred to as the “Unfunded Mandates Provision,” which
provides that “[n]othing in this Act shall be construed to . . . mandate a State or any
subdivision thereof to spend any funds or incur any costs not paid for under this Act.
20 U.S.C. § 7907(a) (emphasis added). Plaintiffs argue that this section specifically
exempts them from complying with NCLB’s requirements where federal funding does
not cover the additional costs of complying with those requirements. They further note
that former Secretary of Education Rod Paige has explained that “[t]here is language in
the bill that prohibits requiring anything that is not paid for.” (Pls.’ Compl. for
Declaratory and Injunctive Relief (“Compl.”) 12; Joint Appendix (“JA”) 21 (quoting
Paige statement of Dec. 2, 2003).)

2
Plaintiffs do not argue that the funds distributed by NCLB are a substitute for those funds that
have historically come from state and local sources. Instead, Plaintiffs argue only that they should not be
required to incur additional funding obligations to comply with NCLB when those obligations would not
be incurred absent the State’s attempt at NCLB compliance.
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 7
of the United States Dep’t of Educ.

B. Procedural history

Plaintiffs brought suit in the United States District Court for the Eastern District
of Michigan seeking a declaratory judgment that NCLB does not require school districts
to comply with the Act’s educational requirements if doing so would require the
expenditure of state and local funds to cover the additional costs of compliance. In the
alternative, the complaint alleged that the Act is ambiguous as to whether school districts
are required to spend their own funds, and that imposing such a requirement would
violate the Spending Clause.

Plaintiffs alleged that in the years following the enactment of NCLB, Congress
has not provided States and school districts with sufficient federal funds to comply fully
with the Act. For example, for the five years from fiscal year 2002 to fiscal year 2006,
Congress appropriated $30.8 billion dollars less for Title I grants to school districts than
it authorized in NCLB. (JA 27.) Plaintiffs sought a declaratory judgment stating that
“states and school districts are not required to spend non-NCLB funds to comply with
the NCLB mandates, and that a failure to comply with the NCLB mandates for this
reason does not provide a basis for withholding any federal funds to which they
otherwise are entitled under the NCLB.” (JA 67.) Plaintiffs also sought an injunction
prohibiting the Secretary from “withholding from states and school districts any federal
funds to which they are entitled under the NCLB because of a failure to comply with the
mandates of the NCLB that is attributable to a refusal to spend non-NCLB funds to
achieve such compliance.” (Id.)

The district court dismissed the complaint for failure to state a claim. The court
focused on the first part of § 7907(a), which, for clarity, we restate in full below:

General prohibition. Nothing in this Act shall be construed to authorize
an officer or employee of the Federal Government to mandate, direct, or
control a State, local educational agency, or school’s curriculum,
program of instruction, or allocation of State or local resources, or
mandate a State or any subdivision thereof to spend any funds or incur
any costs not paid for under this Act.
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 8
of the United States Dep’t of Educ.

20 U.S.C. § 7907(a) (emphasis added). The court concluded that “[b]y including the
words ‘an officer or employee of,’ Congress clearly meant [merely] to prohibit federal
officers and employees from imposing additional, unfunded requirements, beyond those
provided for in the statute.” Sch. Dist. of Pontiac v. Spellings, No. 05-CV-71535, 2005
U.S. Dist. LEXIS 29253, at *12 (E.D. Mich. Nov. 23, 2005). “This does not mean,” the
court explained, “that Congress could not [require States or school districts to spend any
funds or incur any costs not paid for under this Act], which it obviously has done by
passing the NCLB Act.” Id. at *11. In other words, the district court read § 7907(a)
merely to prohibit federal officers and employees from imposing requirements that were
not authorized by the Act on States and school districts, and rejected Plaintiffs’ argument
that § 7907(a) excuses compliance with requirements of the Act that impose additional
costs on the States not funded by the federal government.

Plaintiffs appealed. In a divided, published opinion, the panel below reversed
the judgment of the district court. Pontiac Sch. Dist. v. Sec’y of U.S. Dep’t of Educ., 512
F.3d 252, 254 (6th Cir. 2008) (vacated). That decision found that Plaintiffs had standing
to bring suit and that NCLB failed to provide clear notice to States as required by the
Spending Clause. Id. at 259, 261. The panel majority concluded that based on the text
of § 7907(a), NCLB failed to provide clear notice because a state official could plausibly
conclude that the State need not comply with those NCLB requirements that were not
covered by federal funding. Id. at 269.

On May 1, 2008, a majority of judges of this Court voted to rehear the case en
banc, vacating the panel’s opinion and restoring this case to the docket as a pending
appeal.
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 9
of the United States Dep’t of Educ.

II. DISCUSSION

A. Justiciability

A threshold question is whether this case is properly before us. As we have
previously explained, “[a] claim is not ‘amenable to . . . the judicial process,’ Steel Co.
v. Citizens for a Better Env’t, 523 U.S. 83, 102 [] (1998), when it is filed too early
(making it unripe), when it is filed too late (making it moot) or when the claimant lacks
a sufficiently concrete and redressable interest in the dispute (depriving the plaintiff of
standing).” Warshak v. United States, 532 F.3d 521, 525 (6th Cir. 2008) (en banc). This
controversy implicates two of these doctrines—standing and ripeness.

1. Standing

First, we must decide whether Plaintiffs have standing to challenge NCLB under
the Spending Clause. We review the question of standing de novo. Sandusky County
Democratic Party v. Blackwell, 387 F.3d 565, 573 (6th Cir. 2004). Plaintiffs, as the
parties now asserting federal jurisdiction, have the burden of establishing standing.
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006). To satisfy the
constitutional requirement of standing,

a plaintiff must show (1) it has suffered an “injury in fact” that is
(a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical; (2) the injury is fairly traceable to the
challenged action of the defendant; and (3) it is likely, as opposed to
merely speculative, that the injury will be redressed by a favorable
decision.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180–81 (2000)
(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). The injury
suffered must be “an invasion of a legally protected interest.” United States v. Hays, 515
U.S. 737, 743 (1995). This tripartite standing requirement applies to claims under
NCLB. See Ctr. for Law & Educ. v. Dep’t of Educ., 396 F.3d 1152, 1157 (D.C. Cir.
2005) (citing Lujan, 504 U.S. at 560–61).
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 10
of the United States Dep’t of Educ.

Here, because the district court dismissed the complaint at the pleading stage, the
assessment of standing is confined to the allegations in the complaint. “At the pleading
stage, general factual allegations of injury resulting from the defendant’s conduct may
suffice”; more is required to defeat a motion for summary judgment, and even more is
required for a decision on the merits. Lujan, 504 U.S. at 561.

We conclude that the school district Plaintiffs meet the three requirements for
standing based on their allegation that they must spend state and local funds to pay for
NCLB compliance. Since at least one Plaintiff in this action has standing, there is no
need to consider whether the education association Plaintiffs also have standing. See
Clinton v. City of N.Y., 524 U.S. 417, 431 n.19 (1998); Bowsher v. Synar, 478 U.S. 714,
721 (1986). Additionally, we need not address whether the school district
Plaintiffs’other alleged injuries are sufficient to establish standing. See Nuclear Energy
Inst., Inc. v. EPA, 373 F.3d 1251, 1266 (D.C. Cir. 2004) (finding standing where,
although one alleged injury might not occur “for thousands of years,” another injury
allegedly would occur very soon).

a. Injury in fact

School district Plaintiffs allege that they must spend state and local funds to pay
for NCLB compliance:

Because of the multi-billion dollar national funding shortfalls of NCLB,
and the insistence by [the Secretary] that . . . school districts comply fully
with all of the NCLB mandates imposed upon them even if NCLB funds
that they receive are insufficient to pay for such compliance, . . . school
districts have had and will have to spend a substantial amount of non-
NCLB funds to comply with those mandates, diverting those funds from
other important educational programs and priorities, such as programs for
gifted and talented students, courses in foreign languages, art, music,
computers, and other non-NCLB subjects, class size reduction efforts,
and extracurricular activities.
(JA 61–62.) They also allege that if they do not comply with all NCLB requirements,
the districts “face the withholding [by the Secretary] of federal funds to which they
otherwise are entitled under the NCLB.” (JA 65.) Additionally, the school district
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 11
of the United States Dep’t of Educ.

Plaintiffs claim that inadequate federal funding has caused low rates of student
proficiency on standardized tests.

The Secretary consistently has maintained that the school district Plaintiffs must
comply with NCLB requirements even if they must spend non-federal funds to do so.
School district Plaintiffs allege that the Secretary’s insistence that school districts
comply fully with NCLB has already forced them to spend state and local funds on
NCLB requirements and will continue to require such expenditures in the future.
Because this injury already has occurred and is ongoing, it is concrete and actual.

Moreover, the alleged ongoing need of school district Plaintiffs to spend non-
federal funds to comply with NCLB requirements is not dependent on the hypothetical
actions of “decisions made by the appropriate [state] authorities, who are not parties to
this case.” Warth v. Seldin, 422 U.S. 490, 509 (1975) (holding that city of Rochester
taxpayers could not sue the town of Penfield on the theory that Penfield’s zoning
practices would increase Rochester taxes, because Rochester was not a party). That is,
under NCLB, States do not have the discretion to decide that, in the event of a federal-
funding shortfall, some districts will continue to receive their previous level of funding
and others will not. Instead, under NCLB, state departments of education “shall”
allocate federal NCLB funds to counties or school districts based on formulas provided
in NCLB and approved by the Secretary. 20 U.S.C. § 6333(a)(3)(C). Thus, the “injury
in this case . . . does not turn on the independent actions of third parties,” but on NCLB’s
funding requirements, which dictate the quantum of funding provided to each school
district. Clinton, 524 U.S. at 431 n.19. To the extent the funding received by the school
district Plaintiffs under NCLB is insufficient to defray the cost of compliance with
NCLB requirements, the districts have sustained a cognizable injury in fact.

b. Traceability

School district Plaintiffs’ obligation to spend non-federal funds to comply with
NCLB is traceable to the challenged action of the Secretary. The Secretary has
interpreted NCLB to mean that “‘[i]f a state decides to accept the federal funds [offered
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 12
of the United States Dep’t of Educ.

under the NCLB], then it’s required to implement the law in its entirety.’” (Compl. 12;
JA 21 (quoting Rodney Paige, Sec’y, U.S. Dep’t of Educ., Remarks to National Urban
League (Mar. 25, 2004)) (alterations in original).) And, the Secretary has not granted
waivers of NCLB educational requirements based on the insufficiency of federal
funding.3 Therefore, school district Plaintiffs alleged that the spending of non-federal
funds to comply with NCLB requirements is directly traceable to the Secretary’s
interpretation of NCLB.

c. Redressability

Finally, school district Plaintiffs’ injury must be redressable by a favorable
decision. Among other relief, Plaintiffs seek a declaratory judgment that “school
districts are not required to spend non-NCLB funds to comply with the NCLB
mandates.” (JA 67.) Such a judgment would forbid the Secretary from requiring the
expenditure of non-federal funds on NCLB compliance. This would redress the injury
alleged by Plaintiffs.

2. Ripeness

Next, we must decide whether Plaintiffs’ challenge to NCLB is ripe for judicial
review. This Court reviews questions of ripeness de novo. Ammex, Inc. v. Cox, 351
F.3d 697, 706 (6th Cir. 2003). “In ascertaining whether a claim is ripe for judicial
resolution, we ask two basic questions: (1) is the claim ‘fit[] . . . for judicial decision’ in
the sense that it arises in a concrete factual context and concerns a dispute that is likely
to come to pass? and (2) what is ‘the hardship to the parties of withholding court
consideration’?” Warshak, 532 F.3d at 525 (quoting Abbott Labs. v. Gardner, 387 U.S.
136, 149 (1967)) (alternations in original).

3
Plaintiffs allege that “it would be futile for the plaintiff school districts to ask” for a waiver
because of the Secretary’s uniform rejection of requests for waivers. (JA 22–23.) The Secretary does not
dispute that a request would be futile. Moreover, even if the Secretary granted waivers for the Plaintiffs
here, it would not change this Court’s Spending Clause analysis, nor would it protect other school districts
that may not be granted waivers in the future.
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 13
of the United States Dep’t of Educ.

This case is ripe for judicial review. In discussing ripeness, this Court aptly has
provided both that “the basic rationale of the ripeness doctrine ‘is to prevent the courts,
through premature adjudication, from entangling themselves in abstract disagreements,’”
Nat’l Rifle Ass’n of Am. v. Magaw, 132 F.3d 272, 284 (6th Cir. 1997) (quoting Thomas
v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580 (1985)), and that “[r]ipeness
becomes an issue when a case is anchored in future events that may not occur as
anticipated, or at all.” Id. (citations omitted). These concerns are not present here. The
question before this Court is neither abstract nor hypothetical. Plaintiffs present a
straightforward, concrete question of statutory interpretation, the answer to which is not
dependent on further development of facts or further administrative action. See
Warshak, 532 F.3d at 528 (explaining that legal questions that are answered “differently
in different settings” lack fitness for review). In short, unless we decide this matter,
school district Plaintiffs will be forced to continue expending limited state resources to
comply with NCLB.

a. Fitness

There is no doubt that Congress has not fully funded the cost of complying with
NCLB, and school district Plaintiffs assert that they are forced to spend non-federal
monies to comply with NCLB—meaning this dispute over school funding is
unquestionably “likely to come to pass.” Plaintiffs assert that they already have suffered
injury in the expenditure of non-refundable, non-federal dollars in pursuit of compliance
with the NCLB. Thus, we need not concern ourselves with the hypothetical, as Plaintiffs
are prepared to establish actual ongoing harm.

Similarly, Plaintiffs have demonstrated that their claims arise in a concrete
factual context. Simply, we are asked whether under the plain language of NCLB, when
the Act is considered in parallel with the Spending Clause, the Secretary may require
States to expend non-federal monies. We are not being asked to invalidate the law or
to apply NCLB to any particular set of factual circumstances in which we would benefit
from further administrative developments. We must decide only—through traditional
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 14
of the United States Dep’t of Educ.

techniques of statutory interpretation—whether NCLB complies with the clear-notice
requirements of the Spending Clause.

b. Hardship

This dispute falls within the traditional conception of a “hardship” case—namely,
a “claimant who faces a choice between immediately complying with a burdensome law
or ‘risk[ing] serious criminal and civil penalties.’” Warshak, 532 F.3d at 531 (quoting
Abbott Labs., 387 U.S. at 149) (alterations in original).

We see no reason to depart from the jurisprudence that “where a regulation
requires an immediate and significant change in the plaintiffs’ conduct of their affairs
with serious penalties attached to noncompliance, hardship has been demonstrated.”
Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725, 743–44 (1997) (internal
quotation marks omitted). Here, school district Plaintiffs must decide between drastic
budget reallocation to comply with NCLB and serious statutory consequences, including
teacher replacement, school restructuring, school closure and reopening as a charter
school, or having schools run by the State’s department of education. See 20 U.S.C.
§§ 6316(b)(7)(C)(iv), (b)(8)(B).

B. Federal Rule of Civil Procedure 19

My colleague Judge McKeague argues that this case must be dismissed under
Federal Rule of Civil Procedure 19 because absent parties are necessary to this litigation.
McKeague Op. 73–86. Specifically, Judge McKeague contends that the States of
Michigan, Texas, and Vermont are required parties to this litigation incapable of joinder
and that any relief granted in their absence would be incomplete. McKeague Op. 76–80.
However, this reasoning is not supported by the text of Rule 19 or the relevant case law.
Moreover, such a broad interpretation of Rule 19 could have the undesirable effect of
foreclosing a vast category of legitimate challenges to federal laws.
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 15
of the United States Dep’t of Educ.

1. The text of Rule 19

Under Federal Rule of Civil Procedure 19, “whether a party is indispensable for
a just adjudication requires a determination regarding whether the absent party is
necessary to the litigation; if so, whether the absent party can be joined in the litigation;
and if joinder is infeasible, whether the lawsuit can nevertheless proceed ‘in equity and
good conscience.’” Kickapoo Tribe v. Babbitt, 43 F.3d 1491, 1494 (D.C. Cir. 1995)
(quoting former Fed. R. Civ. P. 19 and citing W. Md. Ry. Co. v. Harbor Ins. Co., 910
F.2d 960, 961 (D.C. Cir. 1990)). An absent party is required for a litigation if:

(A) in [the party’s] absence, the court cannot accord complete relief
among existing parties; or
(B) that [party] claims an interest relating to the subject of the action and
is so situated that disposing of the action in the [party’s] absence may:
(i) as a practical matter impair or impede the [party’s] ability to
protect the interest; or
(ii) leave an existing party subject to a substantial risk of
incurring double, multiple, or otherwise inconsistent obligations
because of the interest.
Fed. R. Civ. P. 19(a)(1). If an absent required party cannot be joined in the lawsuit, Rule
19 provides that:

the court must determine whether, in equity and good conscience, the
action should proceed among the existing parties or should be dismissed.
The factors for the court to consider include:
(1) the extent to which a judgment rendered in the [party’s]
absence might prejudice that [party] or the existing parties;
(2) the extent to which any prejudice could be lessened or
avoided by:
(A) protective provisions in the judgment;
(B) shaping the relief; or
(C) other measures;
(3) whether a judgment rendered in the [party’s] absence would
be adequate; and
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 16
of the United States Dep’t of Educ.

(4) whether the plaintiff would have an adequate remedy if the
action were dismissed for nonjoinder.
Fed. R. Civ. P. 19(b). Our analysis involves two steps: first, we must examine whether
the States of Michigan, Texas, and Vermont (the “States”) are required parties; second,
we must determine whether, in their absence, equity and good conscience require the
case to be dismissed. If the answer to either question is no, then Rule 19 does not
foreclose this litigation.

Under Rule 19(a), we first determine whether this Court can “accord complete
relief among existing parties” in the States’ absence. Fed. R. Civ. P. 19(a)(1)(A).
“Completeness is determined on the basis of those persons who are already parties, and
not as between a party and the absent person whose joinder is sought.” Angst v. Royal
Maccabees Life Ins. Co., 77 F.3d 701, 705 (3d Cir. 1996) (citing Sindia Expedition, Inc.
v. Wrecked & Abandoned Vessel, 895 F.2d 116, 121 (3d Cir. 1990) and quoting 3A
Moore’s Federal Practice 19.07-11 at 93–98 (2d ed. 1989) (internal quotations omitted
in original)); see also United States v. County of Arlington, 669 F.2d 925, 929 (4th Cir.
1982); Eldredge v. Carpenters 46 N. Cal. Counties Joint Apprenticeship & Training
Comm., 662 F.2d 534, 537 (9th Cir. 1981). Here, neither Plaintiffs nor the Secretary
would receive incomplete relief without the States as parties. As will be discussed in
detail below, the issue arising between Plaintiffs and the Secretary is whether NCLB
provides the clear notice required under the Spending Clause. If NCLB fails to provide
clear notice, this Court may uphold the Plaintiffs’ interpretation of § 7907(a), thus
preventing the forced expenditure of non-NCLB funds. If NCLB provides clear notice,
this Court may uphold the Secretary’s interpretation. Such declaratory relief for either
side is complete relief and does not require joinder of the States.

While it is true that both statewide plans and district plans may need to be
amended following the disposition of this case, NCLB itself contemplates periodic
review of these plans and the submission of revisions to the Secretary as necessary. See
20 U.S.C. § 6311(a), (f). Such administrative actions have no bearing on the
completeness of the requested declaratory relief. Moreover, even if some future
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 17
of the United States Dep’t of Educ.

litigation were likely between Plaintiffs or the Secretary and the States, the “possibility
that the successful party to the original litigation would have to defend its rights in a
subsequent suit by the [absent party] does not make it a necessary party to the action.”
Angst, 77 F.3d at 705 (citing Sindia, 895 F.2d at 122); see also MasterCard Int’l, Inc.
v. Visa Int’l Serv. Ass’n, Inc., 471 F.3d 377, 385 (2d Cir. 2006) (“While there is no
question that further litigation [involving an absent party] is inevitable if MasterCard
prevails in this lawsuit, Rule 19(a)(1) is concerned only with those who are already
parties.”); LLC Corp. v. Pension Benefit Guar. Corp., 703 F.2d 301, 305 (8th Cir. 1983)
(determining that Rule 19(a)(1)(A) applies to current parties, “not [to] the speculative
possibility of further litigation between a party and an absent person”). “Rule 19 calls
for a pragmatic approach; simply because some forms of relief might not be available
due to the absence of certain parties, the entire suit should not be dismissed if
meaningful relief can still be accorded.” Smith v. United Bhd. of Carpenters & Joiners
of Am., 685 F.2d 164, 166 (6th Cir. 1982); see also Bank of Am. Nat’l Trust & Sav. Ass’n
v. Hotel Rittenhouse Assocs., 844 F.2d 1050, 1054 n.5 (3d Cir. 1988) (“We observe that
the advisory committee note to Rule 19(a) indicates that the question of ‘complete relief’
may not denote final adjudications of all claims between the parties, so long as the relief
actually afforded to the parties in the action is meaningful.”). Regardless of the presence
or absence of Michigan, Texas, or Vermont in this case, the declaratory relief this Court
can provide is meaningful and complete, and we thus conclude that the States are not
required parties under 19(a)(1)(A).

Notwithstanding this determination, the States still may be required under Rule
19(a)(1)(B). Rule 19(a)(1)(B)(i) exists to protect absentee parties, asking the Court to
consider whether disposing of the matter in the parties’ absence would “impair or
impede the [parties’] ability to protect the interest.” Fed. R. Civ. P. 19(a)(1)(B)(i). We
find that resolving this dispute does not impair or impede such an interest. First, the
States do not have an obvious interest in this dispute that requires protection. In general,
under NCLB, the States act as intermediaries through which federal funds flow to local
schools to fund NCLB initiatives. Accordingly, the States’ interests do not readily align
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 18
of the United States Dep’t of Educ.

with either the Plaintiffs’ or the Secretary’s interpretation of NCLB in this Spending
Clause dispute. Because no party has articulated an interest unique to the States and
because we are disinclined to speculate as to the existence of such interests, there simply
is no basis on which to find that the States possess an interest requiring its participation.

Second, even if the States have a particular interest in this dispute, they had the
opportunity to intervene to protect that interest but declined to participate. Had
Michigan, Texas, or Vermont sought intervention, there is little doubt that this Court
would have allowed each State to join as an intervenor. See Jansen v. City of Cincinnati,
904 F.2d 336, 342 (6th Cir. 1990) (“We join other circuits in holding that the possibility
of adverse stare decisis effects provides intervenors with sufficient interest to join an
action.”). Moreover, the States could have provided the Court with arguments as to their
interests without jeopardizing sovereign immunity by appearing as amici curiae.
However, it would turn Rule 19 analysis on its head to argue that the States’ interests are
now impaired because they declined to participate in this much-publicized case.4

Last, we believe that the States’ interests, if they have any, are adequately
represented by the existing parties. See Republic of the Philippines v. Pimentel, 128 S.
Ct. 2180, 2189 (2008) (stating that parties “are required entities because [w]ithout them
. . . their interests in the subject matter are not protected”) (alterations in original); see
also Ohio Valley Envtl. Coal. v. Bulen, 429 F.3d 493, 504–05 (4th Cir. 2005)
(determining that absentees were not necessary parties when their interests were
identical to those of existing parties who were capable of adequately representing the
absentees’ interests); Washington v. Daley, 173 F.3d 1158, 1167–68 (9th Cir. 1999)
(concluding, in a challenge to fishing regulations, that the United States adequately
represented tribes who were, therefore, not necessary parties); see also Rochester
Methodist Hosp. v. Travelers Ins. Co., 728 F.2d 1006, 1016 (8th Cir. 1984) (reasoning
that the Department of Health & Human Services (“HHS”) was not a necessary party

4
In fact, several States did participate in this lawsuit as amici curiae. See Amici Curiae Br. of
the States of Connecticut, Delaware, Illinois, Maine, Oklahoma, Wisconsin, and the District of Columbia
(filed Apr. 3, 2006); Amicus Curiae Br. of the Governor of the Commonwealth of Pennsylvania (filed Apr.
6, 2006).
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 19
of the United States Dep’t of Educ.

under Fed. R. Civ. P. 19(a)(1)(B)(i) because its interests were adequately protected by
the United States Attorney who would make “every argument that HHS would or could
make”). For these reasons, the States are not required parties under Rule 19(a)(1)(B)(i).

Finally, in examining if the States are required parties under the text of Rule 19,
we must consider whether disposing of this action without the States would “leave an
existing party subject to a substantial risk of incurring double, multiple, or otherwise
inconsistent obligations because of the interest.” Here, no such risk exists. In fact, the
opposite is true. Judicial economy is served, and the threat of inconsistent obligations
is reduced, by deciding the present controversy because the existing parties as well as
absent parties then will be aware of their rights and responsibilities under NCLB. Thus,
under Rule 19(a)(1)(B)(ii), we conclude that the States are not required parties.

2. Relevant Rule 19 case law

There is little precedent supporting the broad reading of Rule 19 urged by my
colleague. In the closest case, Kickapoo Tribe, the D.C. Circuit concluded that Kansas
was an indispensable party under Rule 19 and remanded to the district court with
instructions to dismiss the case. 43 F.3d at 1500. The lawsuit filed by the Kickapoo
Tribe against the Secretary of the Interior sought to invalidate a compact approved by
the Secretary under the Indian Gaming Regulatory Act (“Gaming Act”). Id. at 1493–94.
However, that case presented an entirely different challenge from the one at hand.
Rather than challenging the federal Gaming Act, the Kickapoo Indians challenged a
compact made between the Kickapoo Indians and the State of Kansas, and the case
involved a question of the Kansas Governor’s authority under Kansas law to sign the
compact. Id. at 1494. There, it was clear that Kansas had an interest both in the compact
and in the Governor’s authority under Kansas law. Here, the States possess no similar
interest in the interpretation of NCLB, nor is there any challenge to the States’ authority
to administer their educational programs under state law. With Kickapoo Tribe
distinguished, there is no support for extending Rule 19 to the case before us. In fact,
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 20
of the United States Dep’t of Educ.

we are unable to find a single case in which a court of appeals has dismissed a challenge
to the interpretation of a federal statute because a relevant State could not be joined.

On the other hand, many federal laws requiring state administration and
implementation have been challenged without participation by the relevant States. For
example, the recent Supreme Court cases of Forest Grove School District v. T.A., No.
08-305, 2009 U.S. LEXIS 4645 (June 22, 2009), Winkelman v. Parma City School
District, 550 U.S. 516 (2007), and Arlington Central School District Board of Education
v. Murphy, 548 U.S. 291 (2006), all involved challenges similar to this case (albeit to the
Individuals with Disabilities Education Act (“IDEA”)), in which, as Judge McKeague
acknowledged, the Court “issued holdings that were not only binding on the parties, but
also, for all practical purposes, binding as precedent on the respective States” yet none
of those cases was dismissed under Rule 19. McKeague Op. 84. Similarly, the Supreme
Court has decided environmental cases involving challenges to the interpretation of
federal statutes administered, in part, by the States without requiring state participation.
See, e.g., Envtl. Def. v. Duke Energy Corp., 549 U.S. 561 (2007) (interpreting the federal
Clean Air Act without North Carolina’s participation); S. Fla. Water Mgmt. Dist. v.
Miccosukee Tribe of Indians, 541 U.S. 95 (2004) (interpreting the federal Clean Water
Act without Florida’s participation). Thus, under Rule 19, a State’s participation is not
required simply because the case’s outcome might affect the State.

3. Policy

To hold that Rule 19 requires the States’ joinder in this case would greatly
expand the class of required or necessary parties under the Rule. Making the States
required parties in this litigation and ultimately dismissing this action would have the
undesirable effect of foreclosing a vast category of challenges to federal laws—namely,
any challenge to a federal statute where a State plays a role in the administration of the
statute and possesses an interest in its administration, but chooses not to join the lawsuit.
Under my colleague’s reasoning, all pending and future NCLB and IDEA challenges in
this Circuit would be foreclosed. Such an interpretation would also provide strong
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 21
of the United States Dep’t of Educ.

precedent for the dismissal of pending and future challenges regarding environmental,
transportation, and other Spending-Clause suits, if the relevant States choose not to
participate. This cannot be the intended purpose or effect of Rule 19.

While the States may have an interest in the outcome of this case, that is not
enough. To be considered required parties, Michigan, Texas, and Vermont must fall
within either of Rule 19’s two categories. They do not. The States are simply not
required parties under Rule 19, and their joinder is unnecessary for the continuation of
this lawsuit.

C. The clear-notice requirement under the Spending Clause

Under the Spending Clause, “Congress has broad power to set the terms on
which it disburses federal money to the States.” Arlington, 548 U.S. at 296 (citing South
Dakota v. Dole, 483 U.S. 203, 206–07 (1987)). “[B]ut when Congress attaches
conditions to a State’s acceptance of federal funds, the conditions must be set out
‘unambiguously.’” Id. (citing Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1,
17 (1981) and Bd. of Educ. v. Rowley, 458 U.S. 176, 204 n.26 (1982)). Legislation
enacted under “‘the spending power is much in the nature of a contract,’ and therefore,
to be bound by ‘federally imposed conditions,’ recipients of federal funds must accept
them ‘voluntarily and knowingly.’” Id. (quoting Pennhurst, 451 U.S. at 17). “States
cannot knowingly accept conditions of which they are ‘unaware’ or which they are
‘unable to ascertain.’” Id. (quoting Pennhurst, 451 U.S. at 17). “By insisting that
Congress speak with a clear voice,” the Supreme Court enables States “to exercise their
choice knowingly, cognizant of the consequences of their participation.” Pennhurst, 451
U.S. at 17. Moreover, “in those instances where Congress has intended the States to
fund certain entitlements as a condition of receiving federal funds, it has proved capable
of saying so explicitly.” Id. at 17–18.

In Pennhurst, the Supreme Court applied these principles to conclude that States
participating in the Developmentally Disabled Assistance and Bill of Rights Act of 1975
(“DDA”), 42 U.S.C. §§ 6000–81, were not required to assume the costs of providing
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 22
of the United States Dep’t of Educ.

certain treatment and services to mentally disabled citizens. 451 U.S. at 5. The DDA
provided financial assistance to participating States to aid them in creating programs to
care for and treat the mentally disabled. Id. at 11. The DDA also included a variety of
requirements for the receipt of federal funds, such that the States submit a plan to the
Secretary of the Department of Health and Human Services to evaluate the services
provided under the DDA. Id. at 12. At the heart of the case was the DDA’s “bill of
rights” provision, which provided that mentally disabled citizens “have a right to
appropriate treatment, services, and habilitation for such disabilities” to be provided “in
the setting that is least restrictive of the person’s personal liberty.” Id. at 13. The
plaintiffs, certain disabled citizens of Pennsylvania (a participant in the DDA), sued their
state-owned institution to enforce these “rights”; that is, to compel Pennsylvania to pay
for the costs of the services promised by the “bill of rights.” Id.

The Supreme Court held, however, that the language in the DDA’s “bill of
rights” provision did not create enforceable obligations on the State. Id. at 22. The
Court explained that the provision’s terms, “when viewed in the context of the more
specific provisions of the Act, represent general statements of federal policy, not newly
created legal duties.” Id. at 22–23. The Court also noted that the Act’s “plain language”
supported this view. Id. at 23. It stated that “[w]hen Congress intended to impose
conditions on the grant of federal funds,” as it did in other sections of the DDA, “it
proved capable of doing so in clear terms,” by, for example, using the term
“conditioned.” Id. The “bill of rights” section, “in marked contrast, in no way
suggest[ed] that the grant of federal funds [was] ‘conditioned’ on a State’s funding the
rights described therein.” Id. The Court further explained that the federal Government
had no authority under the DDA to withhold funds from States for failing to comply with
the “bill of rights” section. Id. Accordingly, that section could “hardly be considered
a ‘condition’ of the grant of federal funds.” Id. The Court also explained that the funds
Congress provided to Pennsylvania under the DDA were “woefully inadequate to meet
the enormous financial burden of providing ‘appropriate’ treatment in the ‘least
restrictive’ setting.” Id. at 24. This confirmed that “Congress must have had a limited
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 23
of the United States Dep’t of Educ.

purpose in enacting” this provision because Congress “usually makes a far more
substantial contribution to defray costs” when it “impose[s] affirmative obligations on
the States.” Id. “It defies common sense,” the Court reasoned, “to suppose that
Congress implicitly imposed this massive obligation on participating States.”5 Id.

The Court reiterated that “Congress must express clearly its intent to impose
conditions on the grant of federal funds so that the States can knowingly decide whether
or not to accept those funds.” Id. “That canon,” the Court continued, “applies with
greatest force where, as here, a State’s potential obligations under the Act are largely
indeterminate.” Id. “The crucial inquiry, however, is not whether a State would
knowingly undertake that obligation, but whether Congress spoke so clearly that we can
fairly say that the State could make an informed choice.” Id. at 25 (emphasis added).
Thus, the Court concluded that “Congress fell well short of providing clear notice to the
States that they, by accepting funds under the Act, would indeed be obligated to comply
with” the “bill of rights” provision in the DDA. Id.

The Supreme Court applied these principles again in Arlington, where a similar
question arose under the IDEA, 20 U.S.C. § 1400 et. seq. Arlington, 548 U.S. at
296–300. Enacted under the Spending Clause, the IDEA “provides federal funds to
assist state and local agencies in educating children with disabilities and conditions such
funding upon a State’s compliance with extensive goals and procedures.” Id. at 295
(internal quotation marks and citation omitted). The plaintiffs in Arlington sued under
the IDEA on behalf of their son to require the Arlington Board of Education to pay for
their son’s private-school tuition for specified school years. Id. at 294. The plaintiffs
prevailed in the district court, and the Second Circuit affirmed. Id. As the prevailing
parties, the plaintiffs then sought fees for the services of an educational consultant who
assisted them throughout the litigation. Id. Central to the dispute in Arlington was the
IDEA’s provision that a court “‘may award reasonable attorneys’ fees as part of the

5
In this case, Plaintiffs do not dispute that Congress did clearly intend to place conditions on the
grant of federal funds. However, there is no mention of the cost of compliance anywhere in the text of
NCLB. Plaintiffs argue that Congress’s silence cannot be interpreted as a clear statement that States and
local governments would be required to spend their own funds to cover any shortfall of federal funds.
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 24
of the United States Dep’t of Educ.

costs’” to parents who prevail in an action brought under the Act. Id. at 297 (quoting 20
U.S.C. § 1415(i)(3)(B)).

Noting that “resolution of the question presented in this case is guided by the fact
that Congress enacted the IDEA pursuant to the Spending Clause,” the Supreme Court
ultimately held that the plaintiffs were not entitled to the expert fees requested. Id. at
295. The Court reaffirmed Pennhurst’s principle requiring clear notice to States of their
obligations under such legislation and explained how that principle should be applied:
The Court “must view the IDEA from the perspective of a state official who is engaged
in the process of deciding whether the State should accept IDEA funds and the
obligations that go with those funds.” Id. The Court “must ask whether such a state
official would clearly understand that one of the obligations of the Act is the obligation
to compensate prevailing parents for expert fees.” Id. “In other words,” the Court
continued, “we must ask whether the IDEA furnishes clear notice regarding the liability
at issue in this case.” Id.

Applying these principles, the Court first considered the text of the IDEA. Id.
The Court noted that it has “stated time and again that courts must presume that a
legislature says in a statute what it means and means in a statute what it says there.” Id.
(internal quotation marks and citation omitted). The Court then explained that, although
the IDEA fee provision “provides for an award of ‘reasonable attorneys’ fees,’ this
provision does not even hint that acceptance of IDEA funds makes a State responsible
for reimbursing prevailing parents for services rendered by experts.” Id. at 297.
Accordingly, the Court rejected the plaintiffs’ argument that, because expert fees
amounted to “costs” in IDEA proceedings and because the provision allowed for
reasonable attorneys’ fees “as part of the costs,” the plaintiffs were entitled to expert
fees. Id. at 297–98. The Court explained that the provision “certainly fails to provide
the clear notice that is required under the Spending Clause.” Id. at 298. The Court then
explained that other provisions of the IDEA supported this view of the text. Id. at
298–301. For example, the IDEA includes detailed provisions to ensure that attorneys’
fees are reasonable, but lacks comparable provisions regarding expert fees. Id. at 298.
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 25
of the United States Dep’t of Educ.

Additionally, the Court concluded that its holding was consistent with prior cases
addressing the definitions of costs and fees. Id. at 301–02.

The Court remained unswayed in this conclusion even in light of evidence that
Congress intended the opposite interpretation of the expert-fees provision. The plaintiffs
noted that Congress approved a Conference Report stating that “[t]he conferees
intend[ed] that the term ‘attorneys’ fees as part of the costs’ include[s] reasonable
expenses and fees of expert witnesses . . . .” Id. at 304 (quoting H.R. Conf. Rep. No. 99-
687, at 5 (1986)). “No Senator or Representative voiced any opposition to this statement
in the discussion preceding the vote on the Conference Report—the last vote on the bill
before it was sent to the President.” Id. at 309 (Souter, J., dissenting). The Court
responded that, “[u]nder these circumstances, where everything other than the legislative
history overwhelmingly suggests that expert fees may not be recovered, the legislative
history is simply not enough.” Id. at 304. “In a Spending Clause case, the key is not
what a majority of the Members of both Houses intend but what the States are clearly
told regarding the conditions that go along with the acceptance of those funds.” Id.
(emphasis added). This legislative history, therefore, was not “sufficient to provide the
requisite fair notice” that States bore this liability under the IDEA. Id.; but see id. at 309
(Souter, J., dissenting) (“I can find no good reason for this Court to interpret the
language of this statute as meaning the precise opposite of what Congress told us it
intended.”).

D. NCLB

1. Text of the Act

We must view NCLB from the perspective of a state official who is engaged in
the process of deciding whether the State should accept NCLB funds and the obligations
that accompany those funds. See Arlington, 548 U.S. at 295. In other words, we must
determine whether NCLB furnishes clear notice to the official that her State, if it chooses
to participate, will have to pay for any additional costs of implementing the Act that are
not covered by the federal funding provided for under the Act. In examining NCLB,
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 26
of the United States Dep’t of Educ.

“we must not be guided by a single sentence or member of a sentence, but look to the
provisions of the whole law, and to its object and policy,” Pennhurst, 451 U.S. at 18
(citations and internal quotations omitted), however, “if Congress intends to impose a
condition on the grant of federal moneys, it must do so unambiguously.” Barnes v.
Gorman, 536 U.S. 181, 186 (2002) (citations omitted). “Indeed, in those instances
where Congress has intended the States to fund certain entitlements as a condition of
receiving federal funds, it has proved capable of saying so explicitly.” Pennhurst, 451
U.S. at 17–18 (citation omitted). Here, no such provision exists. NCLB simply does not
include any specific, unambiguous mandate requiring the expenditure of non-NCLB
funds. Neither Judge McKeague, Judge Sutton nor the parties set forth any provision of
NCLB that explicitly spells out the States’ fiduciary obligations under this Act. To the
contrary, § 7907(a) of NCLB provides that “[n]othing in this Act shall be construed
to . . . mandate a State or any subdivision thereof to spend any funds or incur any costs
not paid for under this Act.” Based on this provision, a state official likely would reach
the opposite conclusion—namely, that her State would not be forced to provide funding
for NCLB requirements for which federal funding falls short. Thus, we conclude a state
official would not clearly understand that accepting federal NCLB funds meant agreeing
to use state and local funds to meet goals rendered otherwise unreachable by deficient
federal funding.

This is not to say that the Secretary’s interpretation of the Act is frivolous. But
the only relevant question is whether the Act provides clear notice to the States of their
obligation. See Arlington, 548 U.S. at 296. With this rule in mind, we turn to the
various interpretations of the text offered by the parties and explain why we are not
persuaded that the States’ funding obligations are clear.

2. Plaintiffs’ interpretation

Plaintiffs argue that the plain language of § 7907(a) excuses them from paying
for the costs of compliance with NCLB that exceed those covered by federal funding.
See Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246, 252 (2004)
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 27
of the United States Dep’t of Educ.

(“Statutory construction must begin with the language employed by Congress and the
assumption that the ordinary meaning of that language accurately expresses the
legislative purpose.” (internal quotation marks omitted)). For convenience, the language
of § 7907(a) is as follows:

General prohibition. Nothing in this Act shall be construed to authorize
an officer or employee of the Federal Government to mandate, direct, or
control a State, local educational agency, or school’s curriculum,
program of instruction, or allocation of State or local resources, or
mandate a State or any subdivision thereof to spend any funds or incur
any costs not paid for under this Act.
20 U.S.C. § 7907(a) (emphasis added). The operative language under the Plaintiffs’
reading of § 7907(a) is: “Nothing in this Act shall be construed to . . . mandate a State
or any subdivision thereof to spend any funds or incur any costs not paid for under this
Act.” Read in this way, the clause exempts Plaintiffs from any costs that exceed federal
funds.

Admittedly, there are problems with this interpretation. First, § 7907(a)’s
placement within the statute weakens Plaintiffs’ argument. Located in a section entitled,
“Prohibitions on Federal Government and use of Federal funds,” § 7907(a) is followed
by three additional prohibitions: “Prohibition on endorsement of curriculum,”
“Prohibition on requiring Federal approval or certification of standards,” and a
prohibition on “mandat[ing] national school building standards.” 20 U.S.C. § 7907(b),
(c), and (d). These provisions expressly prohibit federal officials from imposing on
States certain additional conditions to the requirements of NCLB. Because agencies
generally have broad power to interpret and administer law, this section might be
concerned with preventing federal commandeering of state officials as well as limiting
agency authority in administering NCLB.

Interpreted in this way, the first clause of § 7907(a) prohibits federal officers or
employees from commandeering the state educational system. 20 U.S.C. § 7907(a)
(“Nothing in this Act shall be construed to authorize an officer or employee of the
Federal Government to mandate, direct, or control a State, local educational agency, or
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 28
of the United States Dep’t of Educ.

school’s curriculum, program of instruction, or allocation of State or local resources
. . . .”). Like the other subsections of § 7907, § 7907(a) arguably could be concerned
with preventing the imposition of additional costs on states. Instead of prohibiting
states from bearing any costs of compliance, the second clause may prohibit additional
impositions on a State that are not agreed to by the State or set forth in NCLB. In other
words, Congress may have intended to prohibit the expansion of any of the requirements
under NCLB to micro-manage state officials in any way not expressly provided for
under NCLB.

Second, while the Plaintiffs provide strong evidence that many States and indeed
the former Secretary interpreted NCLB not to impose costs exceeding federal funding,6
their interpretation ignores the history of education funding, which suggests that
Congress did not intend to fund all aspects of compliance with NCLB. The prior panel’s
dissent noted as much: “The notion that Congress intended to pay in full for a testing
and reporting regime of indeterminate cost, designed and implemented by States and
school districts, not federal agencies, is not only nonsensical and fiscally irresponsible,
but also contravenes the traditional recognition of state and local governments’ primary
responsibility for public education.” Pontiac Sch. Dist., 512 F.3d at 277 (McKeague,
J., dissenting). Certainly, the history of education funding cuts against Plaintiffs’
reading of § 7907(a) that Congress intended to exempt States from the costs of
compliance with NCLB.

3. The Secretary’s interpretations of the text

Two other interpretations of § 7907(a) have been advanced in this case, both of
which—if Congress had clearly expressed them—would counter Plaintiffs’ argument
that § 7907(a) exempts the States from covering the costs of NCLB compliance in excess
of federal funding. The first, which the district court adopted, is that this section merely

6
Former Secretary of Education Rod Paige described the Act as “contain[ing] language that says
things that are not funded are not required.” (Compl. 11; JA 20.) He later emphasized that “if it is not
funded, it’s not required. There is language in the bill that prohibits requiring anything that is not paid
for.” (Compl. 12; JA 21.)
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 29
of the United States Dep’t of Educ.

prevents officers and employees of the federal government from imposing additional,
unauthorized requirements on the participating States. The second is that this section
simply emphasizes that state participation in NCLB is entirely voluntary, but that once
a State chooses to participate, it must comply fully with NCLB requirements regardless
of whether federal funding is adequate to cover the cost of compliance. As discussed
below, neither of these interpretations is self-evident.

a. Stopping rogue federal officers or employees

The view that § 7907(a) simply restricts federal officials from imposing
additional requirements—that is, those not authorized by the Act—on participating
States arises from the first part of § 7907(a), which discusses “an officer or employee of
the Federal Government.” This reading interprets the Act to preclude any such officer
or employee from mandating that a State incur costs not paid for under (that is, costs not
authorized by) the Act:

General prohibition. Nothing in this Act shall be construed to authorize
an officer or employee of the Federal Government to mandate, direct, or
control a State, local educational agency, or school’s curriculum,
program of instruction, or allocation of State or local resources, or
mandate a State or any subdivision thereof to spend any funds or incur
any costs not paid for under this Act.
20 U.S.C. § 7907(a) (emphasis added).

In accepting this interpretation, the district court explained, the “[d]efendant
argues convincingly that this sentence simply means no federal ‘officer or employee’ can
require states or school districts to ‘spend any funds or incur any costs not paid for under
this Act.’” Pontiac, 2005 U.S. Dist. LEXIS 29253, at *11. The court further explained
that, “[b]y including the words ‘an officer or employee of,’ Congress clearly meant to
prohibit federal officers and employees from imposing additional, unfunded
requirements, beyond those provided for in the statute.” Id. at *12. In sum, the court
concluded that § 7907(a) merely prevents rogue officers from imposing requirements not
authorized by the Act. There are two problems with this interpretation.
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 30
of the United States Dep’t of Educ.

First, it is not evident that the “officer or employee” language modifies the final
clause of § 7907(a) discussing incurring costs under the Act. In other words, the “officer
or employee” language reasonably can be read to modify only the middle clause
regarding state and local control over curricula, as follows: “Nothing in this Act shall
be construed to authorize an officer or employee of the Federal Government to mandate,
direct, or control a State, local educational agency, or school’s curriculum, program of
instruction, or allocation of State or local resources . . . .” 20 U.S.C. § 7907(a). Under
this reading, the final clause is modified by the opening clause: “Nothing in this Act
shall be construed to . . . mandate a State or any subdivision thereof to spend any funds
or incur any costs not paid for under this Act.” Id. In this way, the Act prevents federal
officers from controlling school curricula and allocations of local funds, but says nothing
about officers mandating States to spend funds or incur costs for unauthorized
obligations.

Second, if the “officer or employee” language is interpreted to modify the final
clause, more fundamental problems emerge. For one, such a reading would require us
to substitute words that are not in the statutory text (“Nothing in this Act shall be
construed to authorize an officer or employee of the Federal Government to . . . mandate
a State or any subdivision thereof to spend any funds or incur any costs not [authorized
under this Act]”) for words that are in the text (“. . . or incur any costs not paid for under
this Act”). Stating that a federal officer cannot require a State to incur any costs “not
paid for” under the Act is, to say the least, is an unusual way of saying that an officer
cannot require a State to incur costs for something that is not authorized under the Act.
Were Congress truly concerned about this sort of ultra vires conduct by federal officers
and employees, it could have said so expressly. Even if this were Congress’s concern,
we would be left with the following tautology: This Act does not authorize federal
officers or employees to require States to incur costs for anything that the Act does not
authorize.
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 31
of the United States Dep’t of Educ.

b. Emphasizing that participating in the Act is voluntary

The Secretary also contends that the reference in the final clause of § 7907(a) to
a State’s costs under the Act simply emphasizes that a State’s decision to accept federal
funding under NCLB is entirely voluntary. The Secretary notes that this section
provides limits on what the Act (or, if one accepts the reading discussed above, on what
federal officers and employees) can “mandate” the States to do:

General prohibition. Nothing in this Act shall be construed to authorize
an officer or employee of the Federal Government to mandate, direct, or
control a State, local educational agency, or school’s curriculum,
program of instruction, or allocation of State or local resources, or
mandate a State or any subdivision thereof to spend any funds or incur
any costs not paid for under this Act.
20 U.S.C. § 7907(a) (emphasis added). The Secretary argues that Congress fully
understood that a statute, such as NCLB, that imposes conditions on a receipt of federal
funds is not a mandate. Rather, the section is intended to clarify that States would not
be subject to requirements that formed no part of the conditions set out in the statute.
To support this reading, the Secretary notes that the Unfunded Mandates Act (“UMA”),
2 U.S.C. § 658(5)(A)(i)(II), defines “federal intergovernmental mandate” to exclude
voluntary participation in federal programs. This reading is also flawed.

Plaintiffs do not contend that NCLB—as a whole—is an unfunded mandate
forced upon the States. They appear willing to concede that NCLB is a voluntary
program, and, therefore, their argument focuses on § 7907(a), not on the UMA.7
Plaintiffs argue that, now that they are participating in NCLB, the Secretary is imposing
(that is, “mandating”) liabilities that they did not bargain for—and that are expressly
prohibited by § 7907(a)—when they signed onto NCLB. There are at least three

7
The amici question, however, whether a State can, as a practical financial matter, refuse federal
funding under NCLB. See, e.g., Amicus Curiae Br. of the Governor of the Commonwealth of
Pennsylvania at 20 (noting that “states have come to depend upon [federal] funds to provide extra
assistance to students who are economically and academically disadvantaged” and that “states are coerced
to accept additional and financially burdensome requirements, so that they may continue to provide
services and programs that they have offered to their neediest students for years”); see also New York v.
United States, 505 U.S. 144, 175 (1992) (noting in another context that “Congress has crossed the line
distinguishing encouragement from coercion”).
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 32
of the United States Dep’t of Educ.

additional reasons why § 7907(a) should not be read to merely emphasize the
voluntariness of the program.

First, it is not apparent that § 7907(a) addresses States’ voluntary participation
in NCLB as opposed to their obligations after they have agreed to participate. The
Secretary’s reading would be easier if the Act stated that nothing in it shall be construed
to mandate a State to “comply with the Act” or that nothing in the Act shall be construed
to mandate a State to “incur any costs under this Act”—language like that would indicate
that States can choose not to comply with the Act altogether. Instead, the text provides
that nothing in the Act shall be construed to mandate a State to “incur any costs not paid
for under this Act”—language that a State could plausibly interpret to relate to its
obligations after it has agreed to comply with the Act. Indeed, based on the text of
§ 7907(a), Vermont has passed a law providing that neither the State nor its subdivisions
will be required to “incur any costs not paid for under the Act in order to comply with
the provisions of the Act.” Vt. Stat. Ann. tit. 16 § 165 (2003). In short, it is not apparent
that § 7907(a) relates merely to the States’ freedom to choose whether to opt into the Act
in the first place.

Second, the use of the exact language of § 7907(a) in the Perkins Vocational
Education Act (“Perkins Act”), 20 U.S.C. §§ 2301–2471 (1988), indicates that this
language concerns a State’s funding obligations under NCLB, rather than voluntary
compliance with the Act. Under the Perkins Act, federal grants are issued to “‘assist the
States to expand, improve, modernize, and develop quality vocational education
programs in order to meet the needs of the Nation’s existing and future work force for
marketable skills and to improve productivity and promote economic growth.’”
Pennylvania v. Riley, 84 F.3d 125, 127 (3d Cir. 1996) (quoting 20 U.S.C. § 2301(1)).
Section 2306a of the Perkins Act, entitled “Prohibitions,” mirrors NCLB’s § 7907(a),
but adds a final clause:

(a) Local control. Nothing in this Act shall be construed to authorize an
officer or employee of the Federal Government to mandate, direct, or
control a State, local educational agency, or school’s curriculum,
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 33
of the United States Dep’t of Educ.

program of instruction, or allocation of State or local resources, or
mandate a State or any subdivision thereof to spend any funds or incur
any costs not paid for under this Act, except as required under sections
112(b), 311(b), and 323.
20 U.S.C. § 2306a(a) (emphasis added). The sections referred to in this final clause
require agencies in participating States to spend non-federal funds for specific purposes.
See, e.g., 20 U.S.C. § 2413(a) (Perkins Act § 323) (“Except as provided in subsection
(b), for each fiscal year for which an eligible agency receives assistance under this Act,
the eligible agency shall provide, from non-Federal sources for the costs the eligible
agency incurs for the administration of programs under this Act, an amount that is not
less than the amount provided by the eligible agency from non-Federal sources for such
costs for the preceding fiscal year.”). Thus, the final clause—absent in NCLB—provides
explicit exceptions describing when participating States do have to expend their own
funds when complying with the Perkins Act’s requirements. The common language in
these Acts, therefore, does not simply reiterate that States may or may not participate in
the federal program. While there are differences between the Perkins Act and NCLB,
the differences in the overall structure of the statutes do not negate the informative role
that the identical sixty-two-word provision found in both of the statutes can provide. In
the Perkins Act, the sixty-two-word provision is followed by exceptions to the provision.
In NCLB, the sixty-two-word provision is followed by no exceptions. The difference
between the Perkins Act and NCLB in this regard shows that Congress is capable of
explicitly stating when States must provide funding under these Acts. Cf. Pennhurst,
451 U.S. at 17–18 (“[I]n those instances where Congress has intended the States to fund
certain entitlements as a condition of receiving federal funds, it has proved capable of
saying so explicitly.”).

Third, the Secretary’s comparison with the provisions of the UMA sheds little
light here, as (1) NCLB makes no reference to the UMA’s definition of “mandate,”
which excludes voluntary participation in federal programs, and (2) “the label ‘mandate’
is often applied to obligations that states assume voluntarily in order to qualify for
federal funds.” Patricia T. Northrop, Note, The Constitutional Insignificance of Funding
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 34
of the United States Dep’t of Educ.

for Federal Mandates, 46 Duke L.J. 903, 903 n.2 (1997). Indeed, another section of the
UMA itself defines “mandate” to include a duty arising from voluntary participation in
federal programs. 2 U.S.C. § 1555 (defining the phrase for purposes of a commission
that would review federal mandates).

E. Whether NCLB satisfies the clear-notice requirement of the Spending
Clause
Whether or not Congress intended to fund all the costs of compliance with
NCLB, if Congress did not provide clear notice to the States, any requirement that States
fund the excess costs of compliance is unenforceable. The Spending Clause permits
Congress to condition its grant of federal money to States only if it does so
unambiguously. The appropriate inquiry is not whether Congress intended States to fund
some of the costs of compliance, but whether it provided the States with clear notice of
this intention. See Arlington, 548 U.S. at 296.

Viewing the Spending Clause relationship between a State and the federal
government as a contract, the Supreme Court has stated that “[t]he legitimacy of
Congress’ power to legislate under the spending power thus rests on whether the State
voluntarily and knowingly accepts the terms of th[at] ‘contract.’” Pennhurst, 451 U.S.
at 17. The Secretary cites Bennett v. Ky. Dep’t of Educ., 470 U.S. 656, 669 (1985), for
the proposition that “[u]nlike normal contractual undertakings, federal grant programs
originate in and remain governed by statutory provisions expressing the judgment of
Congress concerning desirable public policy.” The Secretary argues that, in contrast to
general contract law, ambiguities in a grant program must not necessarily “be resolved
against the party who drafted the agreement, i.e., the Federal Government.” Id. at 666.

However, even when the textual ambiguities are resolved in favor of the federal
Government, NCLB still fails the Spending Clause inquiry because it does not provide
clear notice to States that they must incur the costs of compliance. In § 6332(b)(1),
Congress acknowledged the possibility that it might not be able to provide all of the
funds for which States are eligible under NCLB, and Congress provided for a pro rata
distribution if such a shortfall were to occur. But Congress never clearly explained who
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 35
of the United States Dep’t of Educ.

would be responsible for the remaining costs if and when it could not cover them. Thus,
not only did Congress never specifically articulate that States would be responsible for
covering any additional costs of compliance, but Congress’s inclusion of § 7907(a)
further confuses the issue of potential state liability.

When asking “whether such a state official would clearly understand . . . the
obligations,” Arlington, 548 U.S. at 296, the answer must, therefore, be “No.” We need
not decide which of the three above described interpretations of § 7907(a) is correct as
that is not our relevant inquiry. They are all plausible, and they are all flawed. While
the Secretary may be correct that Congress did not intend to provide full funding for
NCLB, many reasonable authorities have interpreted NCLB to mean precisely the
opposite. “When [Connecticut, Delaware, Illinois, Maine, New Mexico, Oklahoma,
Wisconsin, and the District of Columbia] acted to accept NCLB Act funding and to
adopt NCLB Act requirements, it was with the understanding that the Secretary of
Education would comply with all of the provisions of the NCLB Act, including the
Unfunded Mandates Provision.” (Amicus Br. of the States of Conn., Del., Ill., Me.,
N.M., Okla., Wis., D.C. at 4.) Further, the district court, this Court’s prior panel
majority, and the panel dissent all have interpreted § 7907(a) differently. Even the
former Secretary of Education found that § 7907(a) means the opposite of what the
current Secretary claims. Consequently, the only thing clear about § 7907(a) is that it
is unclear.

III. CONCLUSION

NCLB rests on the most laudable of goals: to “ensure that all children have a fair,
equal, and significant opportunity to obtain a high-quality education.” 20 U.S.C. § 6301.
Here, nobody challenges that aim. But a state official deciding to participate in NCLB
reasonably could read § 7907(a) to mean that the State need not comply with
requirements that are “not paid for under the Act” with federal funds.

Congress has not “spoke[n] so clearly that we can fairly say that the State[s]
could make an informed choice” to participate in the Act with the knowledge that they
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 36
of the United States Dep’t of Educ.

would have to spend non-NCLB funds to comply with the Act’s requirements.
Pennhurst, 451 U.S. at 25. If Congress intended otherwise, the ball is properly left in
its court to make that clear. See Arlington, 548 U.S. at 306 (Ginsburg, J., concurring).

Finally, I would not have this opinion read so broadly as to eviscerate the other
mandates of NCLB. The record is clear that the States accepted NCLB funding under
conditions spelled out in the Act. There should be no doubt that States and school
districts must comply with the mandates to the extent of NCLB funds received and must
support their own prior levels of funding as NCLB requires. Plaintiffs’ ongoing
responsibilities under NCLB are thus among the issues that I would have the parties and
the district court consider on remand. Accordingly, I would reverse the district court’s
judgment dismissing Plaintiffs’ complaint and remand for further proceedings consistent
with this opinion.
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 37
of the United States Dep’t of Educ.

____________________

OPINION
____________________

SUTTON, Circuit Judge, concurring in the order. Judge Cole and Judge
McKeague have written well-reasoned opinions about this difficult case, but I find
myself unable to join either one in full. I write separately to explain my position, which
comes down to embracing Judge Cole’s standing and justiciability conclusion and Judge
McKeague’s merits conclusion at the panel stage.

I.

Standing. I agree with Judge Cole that the school districts have Article III
standing to file this lawsuit. Cole Op. at 9–12. The school districts have alleged a
sufficient “injury in fact”: the Secretary’s threatened withholding of federal funds to
which they are otherwise entitled. In a declaratory judgment action, “injury in fact”
turns on whether the threatened harm is real and imminent, as opposed to speculative and
distant. See MedImmune, Inc v. Genentech, Inc., 549 U.S. 118, 127–28 (2007). This
threatened harm is real and sufficiently imminent. The Secretary has consistently denied
waivers seeking to evade the Act’s requirements due to insufficient federal funding, and
the school districts fairly allege that “noncompliance with [the Act’s] mandates due to
lack of funds will result in the withholding of . . . federal funds.” Compl. ¶ 16; see Lujan
v. Defenders of Wildlife, 504 U.S. 555, 561–62 (1992). Putting the school districts to the
choice of abandoning their legal claim or risking sanctions “is a dilemma that it was the
very purpose of the Declaratory Judgment Act to ameliorate.” MedImmune, 549 U.S.
at 128 (internal quotation marks omitted). South Dakota v. Dole, 483 U.S. 203, 205
(1987), involved a similar threat—that the government would withhold federal
funds—and the Court resolved the merits of that declaratory judgment action without
saying a word about standing.

The injury also is fairly traceable to the challenged action of the Secretary, who
has authority to withhold the funds and who has declined to relax the testing and
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 38
of the United States Dep’t of Educ.

assessment requirements of the Act, even if the school districts cannot meet the
requirements with federal funds alone. See Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 180 (2000). And enjoining the Secretary from
withholding federal funds for failing to comply with the Act’s requirements will redress
the threatened injury. See id. at 180–81; Cole Op. at 12.

(As an aside, the school districts separately claim injury in fact due to their
ongoing expenditure of local funds to comply with the Act. See also Cole Op. at 10–11.
But this theory does not necessarily establish a redressable injury. An injunction against
the Secretary will stop him from cutting off federal funds for non-compliance, but it will
not require the States to roll back their statutes and regulations implementing the Act’s
requirements. A State’s alteration of its own statutes and regulations turns on “choices
made by independent actors not before the courts and whose exercise of broad and
legitimate discretion the courts cannot presume either to control or to predict.” ASARCO
Inc. v. Kadish, 490 U.S. 605, 615 (1989). The pleadings do not disclose how Michigan,
Texas and Vermont “implement[] a single, statewide State accountability system”
ensuring adequately yearly progress, 20 U.S.C. § 6311(b)(2)(A), but their implementing
regulations almost assuredly affect the school districts. Yet because one redressable
injury suffices to establish standing, the validity of this alternative theory makes no
difference.)

Ripeness. The claims also are fit for judicial review, and the districts would
suffer hardship if we declined to consider them. See Abbott Labs. v. Gardner, 387 U.S.
136, 149 (1967); Cole Op. at 12–14. Because this dispute raises an unvarnished question
of law that will not benefit from further factual development, it presumptively is ripe for
review. See Dixie Fuel Co. v. Comm’r of Social Sec., 171 F.3d 1052, 1058 (6th Cir.
1999), overruled on other grounds by Barnhart v. Peabody Coal Co., 537 U.S. 149, 157
(2003). “Nothing would be gained by postponing a decision” when “[t]he issue
presented in this case is purely legal, . . . will not be clarified by further factual
development” and hardship to the parties exists. Thomas v. Union Carbide Agric. Prods.
Co., 473 U.S. 568, 581–82 (1985); see Cole Op. at 13–14.
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 39
of the United States Dep’t of Educ.

While further administrative proceedings might sharpen the nature of some of the
school districts’ claims, they would not alter or make more concrete the nature of the
legal question. The Secretary has made his position about the meaning of the Act clear
in public statements, in his stance in this case and in related litigation pending in the
Second Circuit. Requiring the school districts to seek waivers or propose plan revisions
that the Secretary has confirmed he will not grant—because his interpretation of the Act
prevents him from doing so—would merely prolong the litigation, already entering its
fifth year. Nor would it help any of the participants in this case, least of all the students
attending the affected schools, which presumably is why no party raised this issue on its
own. See Union Carbide, 473 U.S. at 581–82. No Lawyer Left Behind is not the name
of the Act.

Civil Rule 19 (a). I do not agree that Michigan, Texas and Vermont are
necessary parties, now called “required” parties, under Rule 19(a) and cannot agree that
we must dismiss the complaint in their absence. Let me start by resisting the idea that
we must, or should, suddenly invoke Rule 19 to resolve this case—a rule that would
appear for the first time in the record and pleadings of this case in our decision
dismissing the complaint. I accept that the federal courts may, as a matter of discretion,
raise required-party issues under Rule 19(a) on their own and may do so for the first time
on appeal—even when the parties have forfeited the issue. Provident Tradesmens Bank
& Trust Co. v. Patterson, 390 U.S. 102, 111 (1968); see also Bowling Transp., Inc. v.
N.L.R.B., 352 F.3d 274, 281 (6th Cir. 2003). But that does not make the issue one of
subject matter jurisdiction, which it is not. Lincoln Property Co. v. Roche, 546 U.S. 81,
90 (2005). And it does not establish that we should insert Rule 19(a) into a case
whenever it occurs to us, only when it is prudent. This case, and the equally high-profile
case pending in the Second Circuit, have been going on since 2005. See Connecticut v.
Spellings, 453 F. Supp. 2d 459, 465 (D. Conn. 2006). The three affected
States—Michigan, Texas and Vermont—surely know about this litigation and just as
surely have made considered decisions not to join it. Indeed, it is quite possible that,
even if we required the Governors of these States or the Secretaries of their respective
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 40
of the United States Dep’t of Educ.

departments of education to join the case, they still would opt not to take a position on
the issue at hand. I am not sure we can make a State take a stand on the point, and I
know we cannot make it take a coherent one. What we might gain from such a ruling
thus is far from clear.

What is more, after the parties filed supplemental briefs before the en banc court
and after the en banc oral argument, we sua sponte raised three “justiciability” questions.
While the third question asked whether we should proceed in the absence of the States,
we did not ask the parties to brief Rule 19—not classically thought of as a justiciability
doctrine—and we still have not done so. Not surprisingly, in their supplements to the
supplemental en banc briefs, no party—and not one of the four amici in their merits
briefs—identified a lurking Rule 19 problem, and it remains quite possible that all of the
participants in this case disagree that there is one. Cf. Huber v. Taylor, 532 F.3d 237,
249 (3d Cir. 2008). While no party to the case would be surprised if we resolved the
case on ripeness grounds, relying in part on the absence of the States, all parties to the
case (I suspect) would be surprised to see us dismiss the case under Rule 19. No doubt,
had we discovered an absence of subject matter jurisdiction at this late stage of the case,
we would have to dismiss the dispute, no matter how lamentable that development
would be, no matter how astonished the parties would be. But I am aware of no
precedent that compels us sua sponte to insert Rule 19 into the case at this point and to
dismiss the case in its fifth year of litigation. In my view, we should answer the question
of statutory interpretation that the school districts’ complaint asked us to answer and
leave Rule 19 out of it.

Be that as it may, Michigan, Texas and Vermont are not “required” parties under
Rule 19(a)(1). An entity is a “required party” if:

(A) in that person’s absence, the court cannot accord complete relief
among existing parties; or
(B) that person claims an interest relating to the subject of the action and
is so situated that disposing of the action in the person’s absence may:
(i) as a practical matter impair or impede the person’s
ability to protect the interest; or
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 41
of the United States Dep’t of Educ.

(ii) leave an existing party subject to substantial risk of incurring
double, multiple, or otherwise inconsistent obligations because
of the interest.

Fed. R. Civ. P. 19(a)(1).

The first ground for treating the three States as required parties—that the court
“cannot accord complete relief” without them, Fed. R. Civ. P. 19(a)(1)(A)—does not
exist. The school districts seek to enjoin the Secretary “from withholding from states
and school districts any federal funds . . . because of a failure to comply with the
mandates of the NCLB that is attributable to a refusal to spend non-NCLB funds.”
Compl. at 58. Enjoining the Secretary from withholding federal funds from the school
districts and the States does not require the presence of the States. It requires only the
presence of the Secretary.

It also is far from clear that the three States claim the kind of “interest,” Fed. R.
Civ. P. 19(a)(1)(B), that is cognizable under the other two grounds for treating the States
as required parties. The States do not have a legally protected interest that resolution of
the Pennhurst question would threaten, a missing ingredient that is fatal in several
circuits. See, e.g., United Keetoowah Band of Cherokee Indians of Okla. v. United
States, 480 F.3d 1318, 1324–25 (Fed. Cir. 2007); Liberty Mut. Ins. Co. v. Treesdale, Inc.,
419 F.3d 216, 230 (3d Cir. 2005); Makah Indian Tribe v. Verity, 910 F.2d 555, 558 (9th
Cir. 1990). The States instead have an “interest in promoting what [they] regard[] as
enlightened public policy,” Am. Maritime Transp., Inc., 870 F.2d 1559, 1562 (Fed. Cir.
1989)—namely, their vision of how the Act should be interpreted—and have an interest
concerning the obligations that come with accepting funding under the Act, see Liberty
Mut. Ins. Co., 419 F.3d at 230 (holding “merely a financial interest” is not enough under
Rule 19(a)(1)(B)). I recognize that we have not yet spoken clearly on what types of
interests Rule 19 encompasses, and I see no need to take a stand today. I note only that
the States’ presumed “interests” in this case are a distant cry from the types of interests
that normally implicate Rule 19(a)(1)(B), and that they are more reminiscent of the kinds
of interests that require just notice, not mandatory joinder. See Fed R. Civ. P. 5.1
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 42
of the United States Dep’t of Educ.

(requiring a party to notify the state attorney general when challenging a state law but
not requiring a court to consider whether the state attorney general is a necessary party);
see also Republic of Philippines v. Pimentel, __ U.S. __, 128 S. Ct. 2180, 2185–86, 2189
(2008) (finding the Republic of the Philippines a required party in case involving claims
against the property of Ferdinand Marcos); Minnesota v. United States, 305 U.S. 382,
386–88 (1939) (condemnation dispute); Hooper v. Wolfe, 396 F.3d 744, 747–48 (6th Cir.
2005) (recovery of diverted assets); Keweenaw Bay Indian Community v. Michigan, 11
F.3d 1341, 1343–44, 1347 (6th Cir. 1993) (tribal fishing rights).

Even if the States have a cognizable interest, however, they are not required
parties under other requirements of Rule 19(a)(1)(B). Proceeding without them will not
“as a practical matter impair or impede” their ability “to protect the[ir] interest[s].” Fed.
R. Civ. P. 19(a)(1)(B)(i). When States stick their heads in the sand for nearly five years
of litigation about a high-profile lawsuit, it is difficult to say that proceeding without
them will impair their interests—which so far seem focused above all on not being
forced to take a public stand on the issues presented.

Nor is there any risk of prejudice to the States if we proceed to the merits without
them. See Republic of the Philippines v. Pimentel, 128 S. Ct. at 2189. The matter at
hand is not a challenge to the constitutionality of a state law or even to the meaning of
a state law. It concerns the meaning of a federal law: Namely, did Congress satisfy the
Pennhurst clear-statement rule by “clearly” describing “the conditions that go along with
the acceptance of . . . funds” under the Act? Arlington Cent. Sch. Dist. Bd. of Educ. v.
Murphy, 548 U.S. 291, 304 (2006). We know that States need not invariably be parties
to Pennhurst clear-statement cases because there are many decisions from the Supreme
Court involving just a local government as a party, but not a State or even the Federal
Government, including one decided a few months ago. See, e.g., Forest Grove Sch. Dist.
v. T.A., ___ U.S. ___, 129 S. Ct. 2484 (2009); Winkelman v. Parma City Sch. Dist., 550
U.S. 516 (2007); Arlington Cent. Sch. Dist., 548 U.S. 291; Jackson v. Birmingham Bd.
of Educ., 544 U.S. 167 (2005); Barnes v. Gorman, 536 U.S. 181 (2002); Davis v.
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 43
of the United States Dep’t of Educ.

Monroe County Bd. of Educ., 526 U.S. 629 (1999); Gebser v. Lago Vista Indep. Sch.
Dist., 524 U.S. 274 (1998); Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60 (1992).

The facts of this case illustrate why that often will be so. Whichever side
Michigan, Texas or Vermont ultimately take on this discrete legal question, there is no
reason to think that the present parties will not protect it. Perhaps the States (silently)
agree with the policy underlying the Act—that the threat of reduced federal funds is
precisely the incentive that the States and school districts need to make “adequate yearly
progress” in the achievement tests required under the Act. If so, there is no reason to
think that the Secretary will not ably advance that position, and in fact he (and she)
already has done so in the five years of litigation. Or perhaps the States (silently) side
with the school districts, believing that they should not have to meet achievement test
standards that they cannot reach with federal funds alone. Here, too, the school districts
have ably advanced this position throughout this litigation, and they have ample
incentives to continue doing so. In the end, the Pennhurst question at the heart of this
case turns on an issue of statutory meaning, one that will not change—it cannot
change—based on equitable or other considerations that a State might or might not
choose to raise.

In the absence of any unprotected interests, no prejudice—not even a risk of
prejudice—exists. What we have instead is a frustrating reality: How could the three
States, all deeply involved in the implementation of the Act, not take a public stance on
how this significant piece of legislation should be construed? Whether as intervening
parties or as amici, the three States would have done well to offer their views. Yet
whatever the explanation may be for their resounding silence, Rule 19(a) does not kick
in whenever an entity should take a public stand in litigation; it applies only when its
absence irreparably prejudices the entity’s interests. That simply is not the case here.

The last ground for invoking Rule 19(a)(1)—subjecting an existing party to
multiple or otherwise inconsistent obligations—also is missing. Inconsistent obligations
arise only when a party cannot simultaneously comply with the orders of different
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 44
of the United States Dep’t of Educ.

courts. See Delgado v. Plaza Las Americas, Inc., 139 F.3d 1, 3 (1st Cir. 1998); cf.
PaineWebber, Inc. v. Cohen, 276 F.3d 197, 201 (6th Cir. 2001). Here, the Secretary
risks only a possible injunction prohibiting him from withholding federal funds if the
affected school districts cannot comply with the Act due to inadequate funding. He can
readily comply with this order and any subsequent order in cases involving Michigan,
Texas and Vermont.

One of Judge McKeague’s primary disagreements with me turns on whether we
can grant “complete relief” without the States. McKeague Op. at 76–77. Because the
districts must follow the Act and the existing plans of their respective States, he points
out, those plans would have to be amended for the school districts to obtain the relief
they seek. But Rule 19 does not turn on the relief that the claimants could have sought
but on the relief they did seek. “Rule 19 can be utilized only to bring in parties necessary
to a complete and just adjudication of the issues presently before the court.” Ross. v.
Houston Indep. Sch. Dist., 699 F.2d 218, 230 (5th Cir. 1983) (emphasis added); see also
Local 670, United Rubber, Cork, Linoleum and Plastic Workers of Am., AFL-CIO v.
Armstrong Rubber Co., 822 F.2d 613, 620 (6th Cir. 1987); 7 Charles Alan Wright,
Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 1604 (3d ed.
2009). The claimants do not seek to be relieved from a specific mandate of the Act but
only to enjoin the Secretary from withholding funds. That relief is not contingent on
actions of the States, and it is relief we have the power to grant. See LaChemise Lacoste
v. General Mills, Inc., 487 F.2d 312, 314 (3d Cir. 1973); cf. 4 James Wm. Moore et al.,
Moore’s Federal Practice, § 19.03[2][d] (3d ed. 2009) (“Joinder should not be
compelled when meaningful relief can be granted without the absentee.”).

That the three States retain independent authority to withhold funds “[i]n order
to enforce the Federal requirements” of the Act, 20 U.S.C. § 1232c(b), or perhaps
impose some other form of sanction, does not change things. Rule 19(a)(1)(A) “focuses
on relief between the parties and not on the speculative possibility of further litigation”
or administrative proceedings “between a party and an absent person.” Sales v.
Marshall, 873 F.2d 115, 122 (6th Cir. 1989) (internal quotation marks omitted). The
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 45
of the United States Dep’t of Educ.

States have not threatened or even hinted that they would invoke their § 1232c(b)
authority if the school districts won this case, and there is no indication that a State has
ever invoked that authority, even though it applies to a wide variety of education
programs. Under these circumstances, indeed, it is quite likely that the school districts
would not have had standing to name the States as party defendants to enjoin them from
this speculative, ill-defined and distant threat. Surely Rule 19(a)(1) does not require
what Article III prevents.

II.

That takes me to the merits—the meaning of the No Child Left Behind Act and
the nature of the obligation that the school districts and the States undertook when they
accepted federal funds under the Act starting in 2002. As the school districts see it,
“states and school districts that accept NCLB funding are not required to use their own
funds for NCLB compliance,” Pontiac Supp. Br. at 12, and accordingly any “failure to
comply with the NCLB mandates for this reason does not provide a basis for
withholding any federal funds to which they are otherwise entitled under the NCLB,”
Compl. at 58. As the Secretary sees it, “a State’s obligation to implement its plan is not
contingent upon a particular appropriation of federal funds or capped at a particular level
of state expenditures.” Final Br. for the Appellee at 17.

A.

A few rules set the stage for deciding who is right. Congress passed the Act
under the Spending Clause. U.S. Const. art. 1, § 8, cl. 1. Congress’s spending authority
permits it to condition the allocation of federal funds to the States on their compliance
with federal regulations, including most notably regulations that Congress otherwise
lacks the power to impose. See Dole, 483 U.S. at 207. Put another way, the Tenth
Amendment, the Eleventh Amendment and the Constitution’s other structural limitations
on congressional authority do not limit properly enacted spending-clause legislation.
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 46
of the United States Dep’t of Educ.

Yet other limitations constrain Congress’s spending authority: two constitutional
limits and a statutory one. As a constitutional matter, Congress may not impose
conditions “unrelated to the federal interest” in enacting spending legislation, id. at
207–08 (internal quotation marks omitted), and it may not “coerc[e]” the States into
accepting funds and the regulations that come with them, id. at 211. These restrictions,
however, need not detain us here. Surely there is a legitimate connection between the
Act’s funding and the conditions imposed on the States who accept it. Congress did not
give the States federal money for education, then insist that they move the location of
their capitals or rename their state birds. Congress asked them to meet a series of
educational requirements in return for receiving education funding.

Perhaps more plausibly, the school districts’ complaint could be read to include
a claim that the Act is unconstitutionally “coercive,” a choice-bending contract of
adhesion. After all, what State in these fiscally challenging times would have the
fortitude to turn down hundreds of millions of dollars in education funding? (Perhaps
suggesting that there is something to the point, no State refused aid under the Act,
notwithstanding the conditions that came with it.) But in their briefs in the district court
and on appeal, the school districts have not claimed that they were coerced into
accepting this bargain. Because they have not developed this claim in any way and
because they have trained their arguments not on invalidating the Act but on limiting
their responsibilities under it, they have forfeited any claim of unconstitutionality.

The statutory limitation on Congress’s spending power, by contrast, lies at the
core of this dispute. Given the breadth of Congress’s power to impose conditions on
States that accept federal money, Arlington Cent. Sch. Dist., 548 U.S. at 296, given its
authority under the Spending Clause to regulate the States beyond the limited and
enumerated powers the Constitution otherwise gives it and given that the States are not
represented in the Halls of Congress, the federal courts have required Congress to state
those conditions “unambiguously” in the text of the statute, Pennhurst State Sch. &
Hosp. v. Halderman, 451 U.S. 1, 17 (1981). Analogizing spending clause legislation to
a contract that “requires offer and acceptance of its terms,” Barnes v. Gorman, 536 U.S.
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 47
of the United States Dep’t of Educ.

181, 186 (2002), the Court has explained that Congress’s authority to impose conditions
on a State “rests on whether the State voluntarily and knowingly accepts the terms of the
‘contract,’” Pennhurst, 451 U.S. at 17. Just as parties to a contract “cannot knowingly
accept conditions . . . which they are unable to ascertain,” neither can the States.
Arlington Cent. Sch. Dist., 548 U.S. at 296 (internal quotation marks omitted). Spending
clause conditions thus bind the States only when Congress spells them out clearly in the
text of the law.

Even though this clear-statement rule has constitutional roots, it remains a rule
of statutory interpretation, one constrained by other canons of statutory interpretation.
A State or a school district cannot escape a federal regulation merely by showing
possible ways in which a law may be unclear; it must identify a plausible alternative
interpretation of the law consistent with its theory of ambiguity. See Bell v. New Jersey,
461 U.S. 773, 783 n.8 (1983) (rejecting a reading of a statute as “no more than remotely
plausible” in favor of a better reading of the law even though it imposed additional
obligations on the States); Bennett v. Ky. Dep’t of Educ., 470 U.S. 656, 672 (1985)
(finding no ambiguity in a provision of the predecessor of the NCLB, the Elementary
and Secondary Education Act of 1965, Pub. L. No. 89-10, 79 Stat. 27, because “[n]o
plausible reading of the statute or regulations suggests that” Kentucky’s actions
comported with the statute). A State cannot tenably complain about a congressional bait
and switch when the alleged “bait” is premised on an implausible reading of the statute.
As is true in other areas of the law, the implausibility of an alternative interpretation of
a statute defeats a claim of threshold ambiguity. See Auto-Owners Ins. Co. v. Redland
Ins. Co., 549 F.3d 1043, 1047 (6th Cir. 2008) (insurance contract); Zirnhelt v. Michigan
Cons’l Gas Co., 526 F.3d 282, 287 (6th Cir. 2008) (ERISA plan); cf. Cuomo v. Clearing
House Ass’n, L.L.C., __ U.S. __, 129 S. Ct. 2710, 2715 (2009) (Chevron).

In gauging statutory ambiguity, the courts also apply a wide-angle, not a
telephoto, lens. What matters is not whether a provision is ambiguous when read in
isolation but whether it is ambiguous when read in context. See, e.g., Pennhurst, 451
U.S. at 19 (Spending Clause); FDA v. Brown & Williamson Tobacco Corp., 529 U.S.
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 48
of the United States Dep’t of Educ.

120, 132 (2000) (Chevron); Prater v. Ohio Educ. Ass’n, 505 F.3d 437, 441 (6th Cir.
2007) (contract).

B.

Measured by these yardsticks, the No Child Left Behind Act clearly requires the
States (and school districts) to comply with its requirements, whether doing so requires
the expenditure of state and local funds or not. A contrary interpretation is implausible
and fails to account for, and effectively eviscerates, numerous components of the Act.

The basic bargain underlying the Act works like this. On the federal side,
Congress offers to allocate substantial funds to the States on an annual basis—nearly $14
billion in 2008 for Title I, Part A, a 60% increase in relevant federal funding since
2001—exercising relatively little oversight over how the funds are spent. On the State
side, the States agree to test all of their students on a variety of subjects and to hold
themselves and their schools responsible for making adequate yearly progress in the test
scores of all students. In broad brush strokes, the Act thus allocates substantial federal
funds to the States and school districts and gives them substantial flexibility in deciding
how and where to spend the money on various educational “inputs,” but in return the
schools must achieve progress in meeting certain educational “outputs” as measured by
the Act’s testing benchmarks. As the Supreme Court recently explained:

NCLB marked a dramatic shift in federal educational policy. It reflects
Congress’ judgment that the best way to raise the level of education
nationwide is by granting state and local officials flexibility to develop
and implement educational programs that address local needs, while
holding them accountable for the results. NCLB implements this
approach by requiring States receiving federal funds to define
performance standards and to make regular assessments of progress
toward the attainment of those standards. 20 U.S.C. § 6311(b)(2).
NCLB conditions the continued receipt of funds on demonstrations of
“adequate yearly progress.” Ibid.
Horne v. Flores, __ U. S. __, 129 S. Ct. 2579, 2601 (2009). The school districts’
position—that they can accept the federal dollars, spend them largely as they wish, yet
exempt themselves from the Act’s requirements if compliance would require any local
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 49
of the United States Dep’t of Educ.

money—undoes this bargain by nullifying some provisions of the Act and undermining
several others.

Accountability. Accountability is the centerpiece of the Act, and a plausible
interpretation of the legislation cannot ignore that reality. Instead of focusing on how
much money school districts spend on each child or “dictating funding levels,” the Act
“focuses on the demonstrated progress of students through accountability reforms.” Id.
at 2603. The Act begins with a “Statement of Purpose” that drives home Congress’s
interest in establishing accountable public schools: “ensuring . . . high-quality academic
assessments [and] accountability systems”; “holding schools, local education agencies,
and States accountable for improving the academic achievement of all students”;
“improving and strengthening accountability”; and “providing . . . greater responsibility
for student performance.” 20 U.S.C. §§ 6301(1), (4), (6), (7). See Appendix (containing
the full Statement of Purpose).

Title I, Part A of the Act carries out this objective by requiring participating
States to test their students and, over time, to establish and meet certain benchmarks in
doing so. Today, the Act requires all public school students in participating States to
take seventeen standardized tests over the course of their school careers, see id.
§ 6311(b)(3)(C), and requires the States to grade schools and school districts on their
ability to make “adequate yearly progress” in the test results, see id. §§ 6311(b)(2)(B),
6316(c)(1). For those participating schools that repeatedly fail to make progress, the Act
requires an escalating series of sanctions: (1) starting with “improvement,” which gives
students the right to transfer into more successful schools and forces schools to develop
better practices; (2) moving to “corrective action,” which may include a new curriculum,
extended hours, or personnel discharges; and (3) ending with “restructuring,” which may
include discharging large portions of the staff or converting the school into a charter
school. Id. § 6316(b); see also id. § 6316(c).

The Act provides limited exceptions to these accountability measures, and none
of them applies here. See, e.g., id. §§ 6311(b)(7), 6311(c)(1), 6311(h)(2)(A)(i),
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 50
of the United States Dep’t of Educ.

6316(b)(7)(D), 6316(c)(10)(F), 6337(e)(3). By cabining the Secretary’s discretion to
excuse failure, the Act furthers an essential objective—the source, indeed, of its
title—that no child, whether living in inner-city school districts or not, whether suffering
from learning disabilities or not, whether English is their second language or not,
whether otherwise disadvantaged or not, would be left behind when it came to ensuring
not just that more resources were devoted to their education but that objectively
measurable progress would be made in their education. See, e.g., id. § 6301(3) (setting
goal of “closing the achievement gap between high- and low-performing children,
especially the achievement gaps between minority and nonminority students, and
between disadvantaged children and their more advantaged peers”). That is why the Act
requires each State to set up an annual system of academic assessments in reading,
science and math, id. § 6311(b)(3)(A), using “the same academic assessments . . . to
measure the achievement of all children,” id. § 6311(b)(3)(C)(i) (emphasis added),
providing for “the participation in such assessments of all students,” id.
§ 6311(b)(3)(C)(ix)(I) (emphasis added), and requiring “each local educational agency”
to collect appropriate data and reports on all student achievement, id. at § 6311(h)(2)(B)
(emphasis added).

The school districts’ interpretation would break the accountability backbone of
the Act. Excusing school districts from compliance with the Act whenever federal
funding fell short would make it hard if not impossible to hold them accountable for
meeting the Act’s goals. If school districts decided they were not given enough money
to test all children, they could test just some children. If school districts decided they
were not given enough money to fix all underperforming schools, they could fix just
some schools. Because the school districts have alleged that virtually every major
requirement of the Act is underfunded, see Compl. ¶¶ 32–86, their interpretation would
excuse them from all of these requirements, transforming a no-exceptions accountability
system into a non-existent one.

The NAACP supports the Secretary in this case, as well as in the Second Circuit
case, not because it is satisfied with the levels of federal funding under the Act (few are)
No. 05-2708 School District of the City of Pontiac, et al. v. Secretary Page 51
of the United States Dep’t of Educ.

but because it does not want the Act’s accountability measures violated with
impunity—letting schools filled with disadvantaged students off the hook. NAACP Br.
at 12 (“The panel’s decision invites States and school districts to evade their obligations
to poor and minority children.”). The NAACP’s concern is reflected in the Act itself,
which begins by saying that the Act is designed “to ensure that all children . . . reach . . .
proficiency on challenging State academic achievement standards and State academic
assessments,” “especially . . . disadvantaged” students. 20 U.S.C. § 6301 (emphasis
added). With the Act’s accountability system in place, these goals have a chance of
success; without them, they have no chance of success, risking a return to (or a
continuation of) a system of lower standards for higher-poverty schools.

Flexibility. The school districts’ interpretation is inconsistent not only with the
Act’s accountability requirements but also with the flexibility the Act gives States and
school districts in return for increased responsibility for student achievement. As the
Act’s Statement of Purpose makes clear, that is the central tradeoff of the Act:
“providing greater decisionmaking authority and flexibility to schools and teachers in
exchange for greater responsibility for student performance.” id. § 6301(7) (emphasis
added); see also Horne, 129 S. Ct. at 2601 (the Act “reflects Congress’ judgment that
the best way to raise the level of education nationwide is by granting state and local
officials flexibility to develop and implement educational programs that address local
needs, while holding them accountable for the results”). Unlike most spending
programs, this one comes with few strings telling the States how they should comply
with its conditions. Under the Act, States develop their own c

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2978524. Public record. Not legal advice.