Wisconsin Attorney General Says
NCLB Implementation is Illegal

Wisconsin's attorney general has concluded that the Elementary and Secondary Education Act (ESEA) -- the so-called "No Child Left Behind" federal education law -- is being administered unconstitutionally and illegally in Wisconsin.

Attorney General Peg Lautenschlager said the federal government can not "mandate, direct, or control" state or local school officials in curriculum or program decisions or "mandate a state or any subdivision thereof to spend any funds or incur any costs not paid for under this act."

The formal opinion was issued in response to a question posed by Wisconsin state Sen. Fred Risser. 

Copyright: Mike Keefe, The Denver Post, May, 2004

According to the Associated Press, Scott Young, education policy associate with the National Conference of State Legislatures, said the opinion could be the first step toward a lawsuit challenging the law.

NEA agrees with Lautenschlager that it's likely that the State of Wisconsin and many of its local school districts already are spending more funds than the federal government provides, and that this amount will grow dramatically over the next few years.

"This is the first ruling of its kind in the United States," said Stan Johnson, WEAC's president. "We urge school districts or the state to go to court and correct this injustice."

Johnson said the ESEA’s punitive requirements force school districts to focus on the wrong priorities by wasting scarce resources on excessive standardized testing, bureaucracy and paperwork.

As the Milwaukee Journal Sentinel reported, "The impact of Lautenschlager's opinion is not likely to be clear soon."

According to the Journal Sentinel's report, Lautenschlager "wrote that there were three major areas where federal funds were insufficient to cover costs required by the law: a testing program that includes a requirement to test all third- through eighth-graders each year in reading and math; thea costs of implementing sanctions against school that do not meet the law's requirement that they demonstrate annual progress in raising the performance of weaker students; and the cosdt of sufficient funding to 'permit virtually every student in every school to reach 'proficiency' levels on standardized tests.'"

NEA's legal counsel believes the kind of suit seemingly invited by Attorney General Lautenschlager's opinion has merit and should be filed. NEA continues to monitor developments, conduct research on the impact of the law on students and schools, and consider litigation by NEA and/or one or more of its affiliates.