In April 2005, the nation’s largest teachers’ union, the National Education Association, filed suit in Michigan to block standards required by No Child Left Behind (NCLB). This bill, the hallmark of President George W. Bush’s first term in office, imposes standards on public schools as a condition of their receipt of federal monies.

Schools that repeatedly fail to meet minimum testing standards must give vouchers to families to enable them to go elsewhere. Co-sponsored by Ted Kennedy, the NCLB also injected billions of dollars in new federal funding into public schools, which are traditionally funded at the local level. It requires teacher certifications for certain fields, guaranteeing continued control over education by union-dominated training and certification programs.

It is well-established that the federal government can place conditions on its spending. Those who do not like the conditions do not have to accept the money. But if they accept the money, then they must comply with the conditions imposed by Congress. Public schools, virtually all of which want and accept federal funding, must therefore comply with the NCLB requirements.

Until Jan. 7, 2008, that is. On that day the Court of Appeals for the Sixth Circuit rendered a stunning decision that gives public schools and their teachers’ unions a way around the requirements and standards of the NCLB. School District of City of Pontiac v. Secretary of U.S. Dept. of Educ., 2008 U.S. App. LEXIS 198 (6th Cir. Jan. 7, 2008).

The Sixth Circuit, which covers Michigan, Ohio, Kentucky and Tennessee, decided that the NCLB fails to provide clear notice to states as to whether they must bear additional costs of compliance with its requirements. The Court then held that states need not comply with NCLB requirements that are not fully funded by the federal government.

The Sixth Circuit was divided 2-1 in its decision. The panel majority relied on a doctrine that “statutes enacted under the Spending Clause of the United States Constitution must provide clear notice to the States of their liabilities should they decide to accept federal funding under those statutes.” One would have thought the notice was clear enough, but the Court said it was not.

The Court opinion was written by Judge R. Guy Cole, Jr., who was appointed by President Bill Clinton. However, his opinion was supported by district Judge John Breen, who was sitting on the Sixth Circuit for this case by random designation and had been appointed by President George W. Bush.

Judge David McKeague, appointed to the bench by President George H.W. Bush, dissented. “Under the NCLB, participating States and the school districts within them must comply with extensive educational requirements if the States choose to accept federal funding. … Because the NCLB’s requirements are sufficiently clear, I would hold that requiring compliance with them is an appropriate exercise of congressional authority under the Spending Clause. It appears that the NCLB law is having trouble making the grade.