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Utah bucks "No Child Left Behind": Utah has passed legislation to maintain its constitutional primacy over the federal government in the education of that state's children.

For more than 50 years, the federal government's control over education in this country has grown by leaps and bounds, virtually unchecked. The passage of the No Child Left Behind (NCLB) Act in 2001 was the most sweeping federal encroachment on education ever. But recent events in Utah, Connecticut, Texas, and several other states may spell the beginning of the end for the unbridled fed-ed push.

In May, Utah's governor, Jon Huntsman, signed a landmark piece of legislation (H.B. 1001) that leaves no doubt where Utah legislators think the responsibility for educating their state's children lies--in Utah. In summary, the bill allows Utah school districts to prioritize efforts and resources to meet Utah education goals first, then address federal education goals. If there is a conflict between the NCLB Act and Utah's education plan, the law allows school districts to ignore the NCLB Act.

For example, the NCLB Act requires states to assess a student group's progress by comparing that group's score to scores for that grade from previous years. In contrast, Utah thinks a more reasonable measurement of progress is gained by comparing a group of student's scores to their own scores from last year--comparing apples to apples, so to speak.

Another example of how Utah's education plan conflicts with the NCLB Act is in the teaching of the U.S. Constitution and U.S. government. The NCLB Act requires schools to use the Center for Civic Education's "We the People ... The Citizen and the Constitution" program in sections teaching civics. The We the People textbook (the only textbook directly sanctioned and funded by federal law) mentions the Second Amendment exactly zero times. The 9th and 10th Amendments ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" and "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people") get the same silent treatment in the federal curriculum.

In contrast to the "We the People" program, says H.B. 1001's sponsor, Margaret Dayton (Republican, District 61), Utah teachers prefer to teach "the whole Bill of Rights." So, by teaching that Americans have the right to bear arms, and that the power of the federal government is limited, Utah is already in conflict with the NCLB Act.

It is these types of conflicts that enabled H.B. 1001 to pass with wide margins in both the Utah House of Representatives and Senate--winning 94 of 104 total votes. According to Dayton, H.B. 1001 emphatically answers two important questions: "Does the U.S. Constitution matter?" and "Who is in charge of our children?"

Dayton highlights several legal violations inherent in the NCLB Act. First and foremost, she said, the U.S. Constitution does not enumerate education as a federal power; therefore, education is left explicitly to the states. That alone should be the death knell for laws such as the NCLB Act.

If even more proof that the NCLB Act is a bad law is needed, says Dayton, consider the fact that it is also in conflict with Utah's State Constitution, which states that local school districts are controlled by the local communities and not by the state. Complying with the NCLB Act would require Utah to rewrite its own constitution.

Dayton also points out that the NCLB Act is in conflict with several other federal laws already on the books:

* The 1894 "Enabling Act," in Section 11, clearly states that "schools ... provided for in this act shall forever remain under the exclusive control of said State." (Emphasis added.) This act enabled the people of Utah to form a Constitution and State Government, and to be admitted into the Union on an equal footing with the original States.

* Public Law 96-88, which created the federal Department of Education in the 1980s, states that the "establishment of the Department of Education shall not increase the authority of the federal government over education or diminish the responsibility for education, which is reserved to the states."

* The Individuals with Disabilities Education Act (IDEA) says that states will lose IDEA funding if they test learning disabled children at grade level for assessment purposes (they can only be tested at grade level for educational purposes). But the NCLB Act requires all children--English-as-a-second-language (ESL) and learning-disabled students included--to be tested at grade level for assessment purposes; otherwise, the school will be sanctioned for noncompliance.

Finally, the NCLB Act is in conflict with itself, by stating in Section 9527 that "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."

It is the last phrase of this section, regarding funding, that has sparked much debate over "unfunded mandates," and spurred the recent lawsuit filed by the National Education Association (NEA) and nine school districts against the NCLB Act. But Dayton says that focusing on the funding issue is missing the real issue. In fact, in 2004, she sponsored a bill that would have had Utah opt out of the NCLB Act altogether. That bill failed because many legislators were unwilling to lose approximately $75 million of the federal education funds that Utah receives each year. This year's bill protects that funding by not completely opting out of the Act--but Dayton reminds us that that $75 million is money that the federal government already took away from the states, and is now offering back "with strings attached."

It is precisely this "what the federal government funds, the federal government controls" situation that caused such a furor in the Department of Education (DOE) last year, when it looked like Utah might opt out of the NCLB Act. Officials from the DoE descended on the Utah state education committee like hawks and exerted great pressure to get the bill delayed in committee until it died. Losing control over the education system in Utah struck great fear into the heart of federal education proponents.

But this year, the silence of DoE officials was deafening. Other than a statement by Margaret Spellings, U.S. secretary of education, that H.B. 1001 "might" jeopardize some of Utah's federal funding, the DoE hasn't commented much on Utah's action. Nor will they engage in dialogue with Utah's education committee.

Dayton says that Utah repeatedly invited DoE officials to hearings on H.B. 1001, to provide feedback on the bill, but was rebuffed by letters stating that due to "inadequate staff," the DoE couldn't participate. At last count, the DoE employed some 4,777 people, and not one could come to Utah this year, but last year, when federal control was more at stake, not just one, but several DoE officials showed up. Patti Harrington, Utah's state school superintendent, has even gone to Washington, D.C., to try to meet with Spellings, and has run into a wall of unreturned phone calls and ungranted interviews.

"Spellings likes to talk negatively about us," says Dayton, "but she won't talk to us."

One reason the Department of Education is so upset with Utah might be that they view Dayton and her bill as starting a "national rebellion." But Dayton said that wasn't her intention at all.

"I'm a representative for Utah, doing what's best for my state. Other states have to do what's right for them," said Dayton.

Other states are, indeed, doing what's right for them, or at least what seems right for them:

* Texas is ignoring the NCLB Act's standardized testing rules for learning-disabled students.

* Florida has recently won concessions from Spellings, modifying slightly the timetable by which Florida students must meet math and reading proficiency standards, and increasing the size limits on low-income, special education, and minority "subgroups."

* Colorado has passed a law that allows individual school districts to opt out of the NCLB Act, and thereby opt out of federal funding as well, without sanctions. However, these school districts still have to track progress in math and reading and report to the state whether each school has met NCLB's standards for progress each year. This is so the state department of education doesn't lose its federal funding.

* Nevada has introduced a bill that gives Nevada's education standards priority over the federal requirements and allows schools to opt out of any NCLB provision that isn't fully funded by the federal government.

* Virginia's House of Delegates approved a resolution asking Congress to exempt Virginia from the law's mandates.

* Vermont has passed a law banning Vermont school districts from spending any state money on implementing the NCLB Act. Maine and New Hampshire have proposed similar fund-blocking measures, and Arizona, Hawaii, Minnesota, and New Mexico have proposed opt-out measures.

* Connecticut is preparing to sue the federal government, contending that the NCLB Act illegally requires standardized tests, but does not provide funding to create, distribute, and score them.

Unfortunately, although the list of states that have concerns over the NCLB Act is long, many of them are missing the point: they are focusing on "more federal money," not "less federal control." Utah's Representative David Cox (Republican, District 56) sums up why states should be fighting the NCLB Act: "Our duty is to stop the federal encroachment that's been taking place for the last 40 or 50 years." Another Utah legislator, Steven Mascaro (Republican, District 47), is more blunt, saying, "I wish they'd take the stinking money and go back to Washington."

Even better, the federal government should leave the $12.7 billion associated with the NCLB Act in the hands of the states and parents where it belongs--the same place responsibility for education belongs. Utah's recent bill is a good start in that direction, but as Dayton states, "We must ever be vigilant--we must not relax our efforts in protecting the Constitution, or our children."
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Title Annotation:EDUCATION
Author:Gilmore, Jodie
Publication:The New American
Geographic Code:1U8UT
Date:Jun 27, 2005
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