Bulletin #25 No Child Left Behind                02/19/2004


Did you know? The primary means that the federal government uses to regulate education is through its power enumerated in the Commerce Clause of the Constitution.


The courts have interpreted the Constitution to allow the federal government to give money to the states. So, the federal government, through Congress, adopts a law, like "No Child Left Behind" that, in essence, says, "If states adopt a law that provides for all of the things listed in this federal law, then, and only under those conditions, the federal government will give the states money." The states, in turn, wanting the federal money, adopt laws that mirror the federal law. Through the years, this has become so commonplace that often the distinction between the authority of the federal government to regulate, and the authority of the state government to regulate, is blurred sometimes to extinction. It is also important to note that while Congress may adopt whatever laws it chooses, not all of those laws are constitutional. Far too many of them are not constitutional. However, until and unless the constitutionality of those laws is challenged, they remain in force.


The "No Child Left Behind" (HR.1) legislation was the 2001 revision and re-authorization of the Elementary and Secondary Education Act (ESEA). The Elementary and Secondary Education Act (ESEA) was first enacted in 1965 to give public schools federal assistance and oversight. ESEA was the principal federal law affecting education from kindergarten through high school. The U.S. House of Representatives passed "No Child Left Behind" on December 13, 2001 by a 381-41 vote and on December 18, 2001, the U.S. Senate passed the final version of H.R. 1, by an 87-10 vote. President Bush signed it into law early in 2002. In amending ESEA, the new law was a sweeping overhaul of federal efforts to support elementary and secondary education in the United States, and bolster poor performing schools. It is supposed to emphasize accountability for results.


Today, local, state and federal taxpayers spend more than $7,000 on average per pupil. States and local school districts are now receiving more federal funding than ever before for all programs under No Child Left Behind: $23.7 billion, most of which will be used during the 2003-04 school year. This represents an increase of 59.8 percent from 2000 to 2003. A large portion of these funds is for grants under Title I of ESEA: Improving the Academic Achievement of the Disadvantaged. Title I grants are awarded to states and local education agencies supposedly to help states and school districts improve the education of disadvantaged students; turn around low-performing schools; improve teacher quality; and increase choices for parents. For fiscal year (FY) 2003, funding for Title I alone is $11.7 billion--an increase of 33 percent since the passage of No Child Left Behind. President Bush's FY 2004 budget request would increase spending on Title I by 48 percent since he took office. The government's promotional website is http://www.ed.gov/nclb/landing.jhtml and the legislation can be read by anyone at http://www4.law.cornell.edu/uscode/20/ch70schI.html


So what does this have to do with homeschooling? For starters, homeschoolers are exempt from this legislation. Homeschoolers don't receive federal funding and were exempt to begin with, but Home School Legal Defense Association (HSLDA) lobbied to make certain that language in the legislation was inserted to exempt homeschoolers. Title 20, chapter 70, subchapter IX, Part E, subpart1, section 7886 (http://www4.law.cornell.edu/uscode/20/7886.html) reads:

Sec. 7886. - Private, religious, and home schools

(a) Applicability to non-recipient private schools

Nothing in this chapter shall be construed to affect any private school that does not receive funds or services under this chapter, nor shall any student who attends a private school that does not receive funds or services under this chapter be required to participate in any assessment referenced in this chapter.

(b) Applicability to home schools

Nothing in this chapter shall be construed to affect a home school, whether or not a home school is treated as a home school or a private school under State law, nor shall any student schooled at home be required to participate in any assessment referenced in this chapter.

(c) Rule of construction on prohibition of Federal control over nonpublic schools

Nothing in this chapter shall be construed to permit, allow, encourage, or authorize any Federal control over any aspect of any private, religious, or home school, whether or not a home school is treated as a private school or home school under State law. This section shall not be construed to bar private, religious, or home schools from participation in programs or services under this chapter.


Despite the exemption language, No Child Left Behind does affect homeschoolers.

1) This legislation has undefined language in federal legislation with regard to the words "home school"

2) Exempting homeschoolers from this legislation means that it can be argued that we are automatically included in other legislation

3) The legislation, "No Child Left Behind" (HR1) has mandated that schools performance be measured and that the schools must show improvements and be accountable for test score results. Government funding is tied to testing results and schools that do poorly will be placed on failing school lists. As a result of NCLB, students who do not do well in public school are being asked/forced or otherwise subtly made, to leave schools in order to bring up test scores, so that the school can stay off of failing school lists. Families are being asked, in effect, to educate their children at home or place their children in private schools. Additionally we're also seeing more families being "pushed out" by control crazy schools not willing to follow the orders of a child's physician. Schools have become surrogate parents and now are denying not only the rights of parents to educate but also the rights of parents to medicate and the Department of Children and Family Services is being used as the agent of enforcement.

Of course superintendents and school administrators may deny these practices, but it is happening, and it is slowly being documented. Drop-out rates and other statistics are hiding the truth about what is really happening to these kids. There are dozens of articles on the Internet which discuss the "push-out" problem. The danger here is two-fold. One result is that we are seeing parents who have no desire or interest to homeschool come into the homeschool community which sets them up for failures which will be blamed on the overall practice of homeschooling. The other result is that if enough marginal performers are sent out of school, of course school test results will rise and NCLB will be hailed as doing the trick to cure bad schools.


There are some people in the homeschool community who are "pro" NCLB legislation because they feel it will reveal the truth about how poor a job the government schools are doing. They feel that the reason that the NEA and others are squawking about this legislation is because the current testing is revealing that teachers and administrators are not doing the job they are supposed to be doing, with the millions of dollars in tax payer funded money that they receive.


What has really become interesting is that because the federal government has no power to regulate education, states and individual towns can decide not to follow the legislation and "opt out" of receiving the share of federal money that comes with jumping through the hoops of testing and other mandates. There are at least two towns in CT (Somers and Cheshire) that have opted out. (also see below) http://www.nsba.org/site/doc_cosa.asp?TRACKID=&VID=50&CID=1046&DID=32243



At the onset of this legislation, the Governor of Vermont said he would be willing to forgo the $25 million in federal Title 1 funds in order to avoid the problems and expense of HR1. This never happened, but again a few towns in VT have opted out. Of course, that is a position a state is allowed to take under the law, which ties a state's Title 1 dollars to adoption of the bill's accountability standards. Some states, like Utah, are now considering either opting out altogether, or only agreeing to adopt the mandates that are federally funded


Other states are asking to be exempted from parts of the legislation, but still receive the funding.

If states wish to retain states rights, perhaps it is time that the "funding addicted" states should say and do as they have been telling their kids for the past decade regarding doing drugs.. "Just say NO".


Attorney Deborah Stevenson - Executive Director of National Home Education Legal Defense. – www.nheld.com or email : info@nheld.com

Judy Aron - Director of Research, NHELD – imjfaron@sbcglobal.net





Connecticut towns turn down Title I anti-poverty grants under NCLB

Tom Hutton
Legal Clips, October 2003

The Connecticut towns of Somers and Cheshire have joined a small number of school districts in Vermont in turning down Title I anti-poverty grants under the No Child Left Behind Act (NCLB). These districts are believed to be the first to reject Title I funds. The superintendents for Somers and Cheshire school systems both expressed relief at being able to avoid the “bureaucratic nonsense” associated with the Title I provisions in NCLB. “To say Title I comes with strings attached is an understatement,” said one. “It comes with ropes and anchors.” While the Connecticut schools still are subject to NCLB’s testing and accountability provisions and can be required to take corrective action by the state, they are now exempt from some federal sanctions, according to the state department of education. They are also free of some reporting requirements, such as sending NCLB reports to all parents. Another Connecticut town, Marlborough, is contemplating turning down its Title I grant because the cost of administering the grant may exceed the $8,400 the town is scheduled to receive.


Hartford Courant

By Robert A. Frahm