Leaving No Child Behind (Except in States That Don't Do as We Say): Connecticut's Challenge to the Federal Government's Power to Control State Education Policy Through the Spending Clause

Abstract

The No Child Left Behind Act of 2001 ("NCLB") conditions the states' receipt of federal education funds on, among other things, the creation of testing schemes for elementary school students and the posting of test results. Although NCLB threatens the states' constitutional power to set education policy, two provisions of the law could potentially alleviate this threat: (1) an "unfunded mandates" provision prohibiting federal officers from requiring the states to spend funds not provided by NCLB, and (2) a provision allowing the U.S. Secretary of Education (the "Secretary") to waive provisions of NCLB at a state's request. These provisions, however, have not circumscribed the federal government's role to the satisfaction of some states, prompting Connecticut, a state whose own policies conflict with NCLB's testing requirements, to file the first state NCLB lawsuit against the federal government. This Note argues that Connecticut's claims that the Secretary's administration of these two provisions violates the Spending Clause are valid. This Note then focuses on the Spending Clause's prohibition of conditions that require a state to violate any other provision of the Constitution, arguing that NCLB, as it is currently administered by the Secretary, may force Connecticut and other states to violate the Equal Protection Clause.