SCHOOL DISTRICT OF ~ CI~ OF Pop.c, LEICESTERTO~ SCHOOL DISTRICT, NESHOBE E~NT~YSCHOOL DIS~ICT, OTTER V~Y UNION HIGH

SCHOOL, R~D NOR~T S~ER~SORY UNION,~SFO~ TO~ SCHOOL DIS~ICT, S~B~Y TO~SCHOOL DIS~ICT, WHIT~G TO~ SCHOOL DISTRICT,

~ NATION~ EDUCATION ~SOC~TION, THECON~CTIC~ EDUCATION ~SOC~TION, T~ ILL~OIS

EDUCATION ~SOC~TION, ~ INDIA STATE~C~ ~SOC~TION, W~ MIC~G~ EDUCATION

~SOC~TION, NEA-NEW ~SH~, ~ OHIOEDUCATION ~SOC~TION, W~ RE~ING EDUCATION

~SOC~TION, T~ ~ STA~ ~C~~SOC~TION, T~ UT~ EDUCATION ~SOC~TION,

and the VE~ONT ~A,Petitioners,

v.SEC~T~Y OF T~ UNITED STA~S

DEP~NT OF EDUCATION,Respondent.

On Petition for a Writ of Certiorari to theUnited States Court of Appeals

for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

PHILIP A. HOSTAKNATIONAL EDUCATION

ASSOCIATIONOffice of General Counsel1201 16th Street NWSuite 820Washington, DC 20036(202) 822-7035

January 14, 2010

JEREMIAH A. COLLINSCounsel of Record

BREDHOFF & KAISER, P.L.L.C.805 15th Street, NWSuite 1000Washington, DC 20005(202) 842-2600

Attorneys for Petitioners

[Additional Counsel Listed On Inside Cover]

WILSON-EPES PRINTING CO., INC. - (202) 789-0096 - WASHINGTON, D. C. 20002

DENNIS POLLARD419 Puritan Ave.Birmingham, MI 48009(248) 988-5690

Counsel for PetitionerSchool District of theCity of Pontiac

QUESTION PRESENTED

Section 9527(a) of the No Child Left Behind Act of2001 states as follows:

Nothing in this Act shall be construed toauthorize an officer or employee of the FederalGovernment to mandate, direct, or control aState, local educational agency, or school’s curri-culum, program of instruction, or allocation ofState or local resources, or mandate a State orany subdivision thereof to spend any funds orincur any costs not paid for under this Act.

The question presented is whether, given thatprovision, Congress provided clear and unambiguousnotice, as required by this Court’s Spending Clausejurisprudence, that the acceptance of funds under theAct by States and school districts is conditioned uponan obligation that they spend their own funds andincur costs to comply with requirements of the Acteven if the Federal funding provided under the Actfalls far short of paying for the costs of satisfyingthose requirements.

(i)

ii

PARTIES TO THE PROCEEDING

In addition to the Petitioners, which are listed onthe cover, the Laredo Independent School Districtwas a plaintiff/appellant in the proceedings below.

The Respondent is the Secretary of the UnitedStates Department of Education.

CORPORATE DISCLOSURE STATEMENT

The National Education Association, the Connecti-cut Education Association, the Illinois EducationAssociation, the Michigan Education Association, theOhio Education Association, the Utah EducationAssociation, the Indiana State Teachers Association,the Texas State Teachers Association, NEA-New Hampshire, the Vermont NEA, and the ReadingEducation Association are organized as nonprofitcorporations. None has a parent corporation, nordoes any publicly held company own any stock in anyone of these non-profit corporations.

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..................................i

PARTIES TO THE PROCEEDING ....................ii

CORPORATE DISCLOSURE STATEMENT .....ii

TABLE OF AUTHORITIES ................................v

PETITION FOR A WRIT OF CERTIORARI ......1

OPINIONS BELOW ............................................1

JURISDICTION ..................................................1

CONSTITUTIONAL AND STATUTORYPROVISIONS ...................................................1

INTRODUCTION ................................................3

STATEMENT OF THE CASE ............................5

I. THE NO CHILD LEFT BEHIND ACT ..... 5

II. PROCEEDINGS AND DISPOSITIONBELOW .....................................................9

REASONS FOR GRANTING THE PETITION..16

I. REVIEW IS WARRANTED BECAUSETHIS CASE PRESENTS A QUESTIONOF EXCEPTIONAL NATIONAL IMPOR-TANCE WITH MAJOR FINANCIALIMPLICATIONS FOR STATE ANDLOCAL GOVERNMENTS ........................16

II. REVIEW IS WARRANTED BECAUSETHE DECISION BELOW CONFLICTSWITH THIS COURT’S SPENDINGCLAUSE JURISPRUDENCE BY EVAD-ING THE GOVERNING CLEAR NO-TICE RULE ...............................................18

(iii)

iv

TABLE OF CONTENTS--Continued

Page

32CONCLUSION ....................................................

APPENDIX

APPENDIX A, District Court Decision ...........la

APPENDIX B, Sixth Circuit Panel Decision..10a

APPENDIX C, Order Granting Hearing EnBanc ..............................................................75a

APPENDIX D, Clerk’s Letter DirectingSupplemental Briefing .................................76a

APPENDIX E, Sixth Circuit En Banc Orderand Opinions .................................................78a

V

TABLE OF AUTHORITIES

CASES Page

Arlington Central School District Board ofEducation v. Murphy, 548 U.S. 291(2006) .......................................... 3, 14, 19, 20, 26

Bennett v. Kentucky Dep’t of Educ., 470U.S. 656 (1985) ..........................................28

Connecticut v. Spellings, 549 F. Supp. 2d161 (D. Conn. 2008) ..................................18

Landgraf v. USI Film Prods., 511 U.S. 244(1994) .........................................................25

Pennhurst State School & Hospital v.Halderman, 451 U.S. 17 (1981) ................3, 13

Pension Benefit Guar. Corp. v. LTV Corp.,496 U.S. 633 (1990) ...................................25

Rodriguez v. United States, 480 U.S. 522(1987) .........................................................25

United States v. Lopez, 514 U.S. 549(1995) .........................................................29

Virginia Dep’t of Educ. v. Riley, 106 F.3d559 (4th Cir. 1997) ....................................29

Whitman v. American Trucking Ass’n, 531U.S. 457 (2001) ..........................................22

STATUTES, LAWS AND RULES

No Child Left Behind Act of 2001, Pub. L.107-110, 115 Stat. 1425 (2002) ................passim20 U.S.C. § 6302(a) ................................... 720 U.S.C.20 U.S.C.20 U.S.C.20 U.S.C.20 U.S.C.2O U.S.C.2O U.S.C.

§ 6311(b)(1)(A) .......................... 6§ 6311(b)(1)(D) .......................... 6§ 6311(b)(2) ............................... 7§ 6311(b)(2)(F) .......................... 5§ 6311(b)(3)(C) ..........................6, 17§ 631 l(b)(3)(C)(i)-(xv) ............... 6§ 6311(f) .................................... 27

vi

TABLE OF AUTHORITIES--Continued

20 U.S.C. § 6311(h)(1) ...............................20 U.S.C. § 6311(h)(2) ...............................20 U.S.C. § 6316(a)(1) ...............................20 U.S.C. § 6316(a)(2) ...............................20 U.S.C. § 6316(b)(7) ...............................20 U.S.C. § 6319(d) ...................................20 U.S.C. § 6321 ........................................20 U.S.C. § 6321(a) ...................................20 U.S.C. § 6321(b) ...................................20 U.S.C. § 7801(23)(A) ............................20 U.S.C. § 7901(a) ...................................20 U.S.C. § 7907 ........................................20 U.S.C. § 7913 ........................................20 U.S.C. § 7914 ........................................

20 U.S.C. § 1234c(a) .....................................20 U.S.C. § 2701 et seq .................................28 U.S.C. § 1254(1) .......................................Pub. L. No. 89-10 ..........................................Pub.Pub.Pub.Fed.Fed.Fed.

L. 103-227 .............................................L. 103-229 .............................................L. 103-382 .............................................R. Civ. P. 12(b)(1) .................................R. Civ. P. 12(b)(6) .................................R. Civ. P. 19 ..........................................

Page

777777888781

222227

515

232323101012

LEGISLATIVE MATERIAL

H.R. Conf. Rep. No. 107-334 (2001) ............. 8

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the United States District Court forthe Eastern District of Michigan is unpublished andis reproduced at Pet. App. la-9a. The opinion of thethree-judge panel of the Sixth Circuit, which theSixth Circuit subsequently vacated upon granting theSecretary’s petition for rehearing, is published at 512F.3d 253, and reproduced at Pet. App. 10a-74a. Theen banc Sixth Circuit’s order affirming the DistrictCourt’s judgment of dismissal by an equally dividedvote, and the opinions accompanying that order, arepublished at 584 F.3d 253, and reproduced at Pet.App. 78a-79a, 80a-201a.

JURISDICTION

The United States Court of Appeals for the SixthCircuit, sitting en banc, entered judgment on October16, 2009. This Court has jurisdiction pursuant to 28U.S.C. § 1254(1).

CONSTITUTIONAL ANDSTATUTORY PROVISIONS

Article I, Section 8, Clause 1 of the United StatesConstitution, known as the Spending Clause, pro-vides in relevant part as follows." "The Congress shallhave Power To lay and collect Taxes, Duties, Impostsand Excises, to pay the Debts and provide for thecommon Defence and general Welfare of the UnitedStates .... "

Section 9527 of the No Child Left Behind Act, Pub.L. 107-110, 115 Stat. 1425 (2002) ("NCLB"), codifiedat 20 U.S.C. § 7907, states as follows:

2

PROHIBITIONS ON FEDERAL GOVERNMENTAND USE OF FEDERAL FUNDS.

(a) GENERAL PROHIBITION.--Nothing in thisAct shall be construed to authorize an officer oremployee of the Federal Government to mandate,direct, or control a State, local educationalagency, or school’s curriculum, program of in-struction, or allocation of State or local resources,or mandate a State or any subdivision thereof tospend any funds or incur any costs not paid forunder this Act.

(b) PROHIBITION ON ENDORSEMENT OFCURRICULUM.--Notwithstanding any otherprohibition of Federal law, no funds provided tothe Department under this Act may be used bythe Department to endorse, approve, or sanctionany curriculum designed to be used in anelementary school or secondary school.

(c) PROHIBITION ON REQUIRING FEDERALAPPROVAL OR CERTIFICATION OF STAN-DARDS.-

(1) IN GENERAL.--Notwithstanding any otherprovision of Federal law, no State shall berequired to have academic content or studentacademic achievement standards approved orcertified by the Federal Government, in orderto receive assistance under this Act.

(2) RULE OF CONSTRUCTION.--Nothing inthis subsection shall be construed to affectrequirements under title I or part A of title VI.

3(d) RULE OF CONSTRUCTION ON BUILDINGSTANDARDS.-

Nothing in this Act shall be construed tomandate national school building standards fora State, local educational agency, or school.

INTRODUCTION

This case involves a question of exceptional na-tional importance warranting review by this Court:whether, notwithstanding the prohibition in NCLBSection 9527(a) against requiring States or schooldistricts "to spend any funds or incur any costs notpaid for under this Act," the Secretary may requirethat States and school districts spend their ownfunds to pay for the substantial costs of complyingwith the NCLB’s numerous and costly requirements,where the federal funds provided under the NCLBfall far short of covering the costs of those require-ments.

Because Congress enacted the NCLB pursuant tothe Spending Clause of the United States Consti-tution, analysis of this question is governed by the"clear notice" rule governing the interpretation ofSpending Clause legislation, developed in a line ofcases beginning with Pennhurst State School &Hospital v. Halderman, 451 U.S. 1 (1981), and reite-rated and applied most recently in Arlington CentralSchool District Board of Education v. Murphy, 548U.S. 291 (2006). Under this rule, Congress must "setout unambiguously" any condition that it attaches tothe receipt of federal funds, so that those conditionscan be accepted "voluntarily and knowingly."Arlington, 548 U.S. at 296 (quoting Pennhurst, 451U.S. at 17.)

4

The Secretary has taken the position that, notwith-standing Section 9527(a), States and school districtsmust comply with each and every one of the NCLB’smany costly requirements, regardless of whether theFederal Government has provided sufficient fundingto pay for the extra costs that compliance entails, andno matter how far short the Federal funding mayhave fallen. Thus, on the Secretary’s view, Statesand school districts, by accepting federal funds, canbe required to bear anywhere from zero to one hun-dred percent of those federally mandated compliancecosts.

Resolution of the question whether the Secretary’sposition is permissible is of enormous consequence toStates and school districts, which, as a result of theSecretary’s position and of the Federal Government’sfailure to provide sufficient funds, have been forced todivert their own funds to pay for substantial coststhat would not exist but for the Federal requirementsset forth in the NCLB, at the expense of the educa-tional programs to which these State and local fundswould otherwise be directed.

In this case, the District Court accepted the Secre-tary’s interpretation as a matter of law and, on thatbasis, dismissed the case on the pleadings. After theSixth Circuit reversed in a divided panel decision, thecourt vacated that decision and then affirmed theDistrict Court’s decision by an evenly divided vote ofthe en banc court.

Review is warranted because of the importance ofthe issue and because both the District Court and themembers of the Court of Appeals who agreed with theDistrict Court’s decision on the merits reached theirconclusions by evading the clear notice rule in a

5

manner that is contrary to this Court’s decision inArlington.

STATEMENT OF THE CASE

I. THE NO CHILD LEFT BEHIND ACT

The No Child Left Behind Act is the latest iterationof the Elementary and Secondary Education Act of1965 ("ESEA"), Pub. L. No. 89-10, 79 Stat. 27 (1965)(codified as amended at 20 U.S.C. § 2701 et seq.),which, as reauthorized and amended from time totime, has been the principal statutory schemegoverning Federal primary and secondary educationspending for more than four decades. With theenactment of the NCLB in 2002, Congress made far-reaching amendments to the ESEA scheme, greatlyexpanding Federal involvement in education andaffecting all the nation’s public schools.

The NCLB sets as its overall goal that all childrenin the nation’s public schools be "proficient" inreading and mathematics by the year 2014.1 TheNCLB seeks to achieve that ambitious goal throughthe creation of unprecedented Federal requirementsrelating to instructional content and academicachievement standards, annual tests aligned to thosestandards, teacher and paraprofessional qualif-ications, data-collection and reporting, assessmentsof school and school district performance, andcorrective actions to be taken when schools’ perfor-

1 This goal is expressed in the "Timeline" section of the Act,

which states that "[e]ach State shall establish a timeline foradequate yearly progress" and that "It]he timeline shall ensurethat not later than 12 years after the end of the 2001-2002school year, all students in each group . . . will meet or exceedthe State’s proficient level of academic achievement on the Stateassessments .... " 20 U.S.C. § 6311(b)(2)(F).

6

mance falls short of benchmarks designed to ensureone hundred per cent proficiency by 2014.

Title I, Part A of the NCLB imposes the followingrequirements on States and school districts:

¯ Curriculum and Achievement Standards Re-quirements: The NCLB requires States todevelop and implement "challenging" stan-dards for "academic content" as well as"challenging student achievement standards"that are aligned with those content standards.20 U.S.C. § 6311(b)(1)(A), (D).

¯ Testing Requirements: States must develop,and school districts must implement, a state-wide testing regime, which must include mathand reading tests administered annually tostudents in grades 3-8 and once more whilestudents are in grades 10-12. And, as of the2007-2008 school year, school districts alsomust administer science tests for studentsin grade ranges 3-5, 6-9, and 10-12. Id.§ 6311(b)(3)(C). In all, the law requires theadministration of no less than seventeendifferent annual standardized tests, whichmust meet a host of statutory criteria. Id.§ 63 ll(b)(3)(C)(i)-(xv).

¯Data-Gathering, Grading, and Reporting Re-quirements: Based primarily on student per-formance on NCLB-mandated tests, States andschool districts must annually grade and pub-licly report on the performance of all schools,designating them as making or failing tomake "Adequate Yearly Progress" ("AYP").These evaluations must show aggregateresults as well as results broken down

7

into statutorily prescribed subgroups. Id.§§ 6311(b)(2), 6311(h)(1)-(2), 6316(a)(1)(A)-(B).

¯School Improvement Requirements: If a schooldoes not achieve AYP within prescribed time-lines, States and school districts must takeactions against the schools and school districtsthat fall short. States and school districts arenot free to take whatever actions they deemappropriate, but must instead pick from amenu of options specified by the statute, whichrange from permitting all students to transferfrom such schools to replacing the staff,reopening the school as a charter school, orcontracting the operation of the school to aprivate company. Id. § 6316(b)(7).2

In the NCLB, Congress authorized the appropria-tion of unprecedented amounts of Federal funds toenable states and school districts to comply withthese extensive requirements. The Act specifies thatCongress is authorized to appropriate grants toschool districts to carry out the NCLB Title Imandates totaling $13.5 billion in fiscal year ("FY")2002, $16 billion in FY 2003, $18.5 billion in FY2004, $20.5 billion in FY 2005, $22.75 billion in FY2006 and $25 billion in FY 2007. See 20 U.S.C.§ 6302(a). These unprecedented authorization levelsreflect Congress’s understanding that "significantand annual increases in Title I authorizations" wouldbe required to provide states and school districts withthe Federal resources needed "to implement fully the

2 Other titles of the NCLB prescribe further requirements,such as the requirement in Title II, Part A that teachersand paraprofessionals meet statutorily prescribed qualificationrequirements. Id. § 7801(23)(A); id. § 6319(d).

8

reforms incorporated in the [NCLB]." H.R. Conf.Rep. No. 107-334, at 693 (2001).

However, the actual appropriations under theNCLB have been far below the authorized levels. Byway of illustration, the complaint documents thatCongress appropriated $30.8 billion dollars less forTitle I grants to school districts from fiscal year 2002to fiscal year 2006 than it had authorized for thosepurposes in the NCLB. Pet. App. 19a. And thecomplaint alleges that the Federal funds provided tothe States and school districts have been far belowthe levels that would be needed to pay for the costs ofcomplying with the NCLB’s extensive requirements.

The NCLB carries forward the ESEA’s long-standing maintenance-of-effort and supplement-not-supplant provisions, which are designed to preventStates and school districts from using Federal fundsto pay for programs that the States and schooldistricts would pay for in the absence of those Federalfunds. 20 U.S.C. § 6321. The maintenance-of-effortprovision requires that a school district must, inorder to receive Federal funds in a given year, main-tain its financial support at a level that is at leastninety percent of amount of its financial support fromthe previous year. Id. §§ 6321(a), 7901(a). Thesupplement-not-supplant provision requires thatStates and school districts use their federal fundsonly "to supplement the funds that would, in theabsence of such federal funds, be made available fromnon-federal sources for the education of pupilsparticipating in programs assisted under [the NCLB],and not to supplant such funds." Id. § 6321(b).

At the same time, Congress also included in theNCLB Section 9527(a)--the only provision in the Actthat speaks directly to the obligation vel non of States

9and school districts to use non-Federal funds to payfor NCLB compliance. That provision, set forthwithin the "General Provisions" of Title IX of NCLB,states, in full, as follows:

PROHIBITIONS ON FEDERAL GOVERNMENTAND USE OF FEDERAL FUNDS.

(a) GENERAL PROHIBITION.--Nothing in thisAct shall be construed to authorize an officer oremployee of the Federal Government to mandate,direct, or control a State, local educational agen-cy, or school’s curriculum, program of instruc-tion, or allocation of State or local resources, ormandate a State or any subdivision thereof tospend any funds or incur any costs not paid forunder this Act.

II. PROCEEDINGS AND DISPOSITIONBELOW

Petitioners filed suit against the Secretary on April20, 2005, alleging that the Secretary was violatingthe Spending Clause and the terms of Section 9527(a)"by changing one of the conditions pursuant to whichstates and school districts accepted federal fundsunder the NCLB--viz., that states and school dis-tricts would not be required to spend any funds orincur any costs not paid for under this Act." Pet.App. 4a. Plaintiffs’ complaint sets forth detailed alle-gations that Congress has not provided States andschool districts with Federal funds that are remotelysufficient to pay for full compliance with the Act.

Despite this shortfall in Federal funding--anddespite assurances in the early years of the programby then-Secretary Roderick Paige that the NCLB"contains language that says that things that are not

10funded are not required" and that "if it’s not fundedit’s not required," Pet. App. 161a--the Secretary hasinsisted that States and school districts must complywith each and every one of the NCLB’s requirements,Pet. App. 23a, 161a. The Secretary’s insistence thatschool districts comply with all NCLB requirementshas forced the plaintiff school districts to divert fundsfrom existing programs to comply with NCLBrequirements. Pet. App. 23a, 93a.

The Secretary moved to dismiss the complaintunder Fed. R. Civ. P. 12(b)(1) and (6), arguing thatnone of the plaintiffs had standing to bring the law-suit and that, in any event, NCLB Section 9527(a)did not support plaintiffs’ claim. Pet. App. 5a. TheDistrict Court held that the plaintiffs had adequatelyalleged a basis for standing but agreed with theSecretary’s position on the merits and dismissed thecomplaint under Rule 12(b)(6). Pet. App. 6a-9a. In sodoing, the District Court adopted the Secretary’sargument that Section 9527(a) "clearly" means onlythat Federal officers and employees are prohibited"from imposing additional, unfunded requirements,beyond those provided for in the statute," and "cannotreasonably be interpreted to prohibit Congress itselffrom offering federal funds on the condition thatStates and school districts comply with [the NCLB’s]many statutory requirements." Pet. App. 9a.

Plaintiffs appealed. Plaintiffs were supported byamici curiae urging reversal, including seven States(Connecticut, Delaware, Illinois, Maine, New Mexico,Oklahoma, and Wisconsin) and the District of Colum-bia. The brief filed by those jurisdictions made clearthat when each of them "opted to participate in theNCLB programs [they] understood, based on theplain language and statutory context of [Section

11

9527(a)], that neither states nor local school districtswould be required to spend their own funds to complywith the NCLB mandates." Amici Curiae Brief of theStates of Connecticut, Delaware, Illinois, Maine, NewMexico, Oklahoma, Wisconsin, and the District ofColumbia, in School District of the City of Pontiac, etal. v. Secretary of U.S. Department of Education, 6thCir. No. 05-2708, at 2.

A divided panel of the Sixth Circuit reversed theDistrict Court. App. 10a-74a. The majority con-cluded (1) that the school district plaintiffs hadstanding to raise the claims in the lawsuit; and (2)that in light of Section 9527(a), the NCLB did notprovide clear notice, as required by this Court’sSpending Clause jurisprudence, that acceptance ofNCLB funds by States and school districts is condi-tioned on their agreement to spend their own fundsto comply with NCLB requirements in the event thatFederal funds are insufficient. Pet. App. 10a-50a.The dissent argued that Section 9527(a) operatesonly to make clear that the NCLB is a voluntaryprogram under which States are entitled to opt outif they believe that the burdens of participationoutweigh the benefits. Pet. App. 51a-74a.

The Sixth Circuit granted the Secretary’s petitionfor rehearing en banc, thereby vacating the paneldecision and reinstating the case as an active appealfrom the District Court’s judgment dismissing thecase. Pet. App. 75a. The parties submitted sup-plemental briefs and the en banc Sixth Circuit heardoral argument on December 10, 2008. After theargument, the Court of Appeals ordered further brief-ing on a number of issues that had not previouslybeen raised or briefed, including whether plaintiffs’claims were ripe and whether the claims could

12

properly be resolved without the participation of theStates in which the school district plaintiffs arelocated. Pet. App. 76a-77a.

On October 16, 2009, the Sixth Circuit issued anorder affirming the District Court’s dismissal by anevenly divided vote of the sixteen judges in activeservice. Pet. App. 78a-79a. In connection with thatorder, the court issued four separate opinions.

Thirteen of the sixteen judges concluded that theissue of whether States and school districts could berequired to spend their own funds to comply with theNCLB was properly before the court.3 But no positionon the merits of the issue commanded a majority.

Thirteen judges stated conclusions on the merits.Seven agreed with plaintiffs that, in light of Section9527(a), "a state official would not clearly understand

3 Those judges concluded that the school district plaintiffs hadstanding to sue, that the case was ripe, and that dismissalunder Fed. R. Civ. P. 19 was not warranted by reason of thenon-joinder of Michigan, Vermont, and Texas as parties. SeePet. App. 90a-106a (opinion of Cole, J., joined by Martin,Daughtrey, Moore, Clay, Gilman, and White, JJ., and joined inpertinent part by Gibbons, J.); 127a-137a (opinion of Sutton, J.,joined by Batchelder, C.J., and Boggs, Cook, and Kethledge,J.J.). Three judges concluded that the case was not ripe and,alternatively, should be dismissed under Rule 19 by reason ofthe non-joinder of Michigan, Texas, and Vermont as parties.Pet. App. 165a-195a (Opinion of McKeague, J., joined inpertinent part by Rogers and Griffin, J.J.). The Rule 19 issuewas raised for the first time in Judge McKeague’s opinion, andwas never briefed by the parties. See Pet. App. 131a. Hence,the substantial discussion of the grounds for rejecting the notionthat the case should be dismissed under Rule 19 that appear inthe opinions of Judge Cole and Judge Sutton were responses toJudge McKeague’s having introduced the issue for the first timein his en banc opinion.

13

that accepting federal NCLB funds meant agreeing touse state and local funds to meet [NCLB-required]goals rendered otherwise unreachable by deficientfederal funding." Pet. App. l13a (opinion of Cole, J.,joined by Martin, Daughtrey, Moore, Clay, Gilman,and White, JJ.). Six judges, however, agreed withthe Secretary’s view that the NCLB "clearly requiresthe States (and school districts) to comply with its re-quirements, whether doing so requires the expendi-ture of state and local funds or not." Pet. App. 141a(opinion of Sutton, J., joined by Batchelder, C.J., andBoggs, Cook, and Kethledge, J.J., and joined inpertinent part by McKeague, j.).4

Judge Cole, writing for the seven-judge plurality,reached the conclusion that the "clear notice" ruledoes not permit the Secretary to require States orschool districts to spend their own funds on NCLBcompliance. Noting this Court’s admonition that, ""inthose instances where Congress has intended theStates to fund certain entitlements as a condition ofreceiving federal funds, it has proved capable of say-ing so explicitly,’" Pet. App. l12a (quoting Pennhurst,451 U.S. at 17-18), Judge Cole concluded that "[h]ere,no such provision exists. NCLB simply does notinclude any specific, unambiguous mandate requiringthe expenditure ofnon-NCLB funds." Pet. App. l13a."To the contrary," Judge Cole continued, "[b]ased on[Section 9527(a)], a state official likely would reachthe opposite conclusion--namely, that her Statewould not be forced to provide funding for NCLB

4 Judge Gibbons filed a separate opinion in favor of reversal,concluding that the plaintiffs stated a claim sufficient to with-stand a motion to dismiss under Rule 12(b)(6), but that a defini-tive answer to the merits question should await further develop-ment of the record on remand. Pet. App. 196a-201a.

14requirements for which federal funding falls short."Id.

Judge Cole then carefully considered the two alter-native interpretations urged by the Secretary--i.e.,(1) that Section 9527 (a)"merely prevents officers andemployees of the federal government from imposingadditional, unauthorized requirements on the par-ticipating States"; and (2) that Section 9527(a)"simply emphasizes that state participation in theNCLB is entirely voluntary"--but found neither to bea "self-evident" reading of the provision such aswould dispel any ambiguity in Section 9527(a) orrender plaintiffs’ reading of the provision implausi-ble. Pet. App. l16a, l17a-123a.

Judge Cole noted that the interpretations profferedby the plaintiffs and the Secretary were each in someways "plausible" and in some ways "flawed;" but heemphasized that the "relevant inquiry" is "not [to]decide which of the.., interpretations is correct," butrather "’whether . . . a state official would clearlyunderstand . . the obligations’." Pet App. 124a(quoting Arlington, 548 U.S. at 296). Given theconclusion that Section 9527(a) can plausibly beconstrued as requiring compliance with all of theNCLB’s requirements only to the extent that they arepaid for by Federal funds, Judge Cole concluded, "theanswer must, therefore, be ’No.’" Id.

In reaching the contrary conclusion, Judge Sutton’sopinion adopted an entirely different mode of analy-sis. Rather than beginning with the text of thestatutory provision at issue, Judge Sutton took as astarting point his characterization of the purpose ofthe NCLB. Pet. App. 141a-151a. Relying on anadmittedly "broad brush strokes" description of "thebasic bargain underlying the Act"--viz., that the

15

Federal Government provides "substantial funds"plus "substantial flexibility" in exchange for "accoun-tability" for results on the part of States and schooldistricts--Judge Sutton posited that the overridingpurpose of the entire Act is "accountability." Pet.App. 141a-142a. From that premise, Judge Suttonreasoned that allowing States and school districts topare back their compliance efforts based on in-adequate funding would "break the accountabilitybackbone of the Act," making "it hard if not impossi-ble to hold them accountable for meeting the Act’sgoals." Pet. App. 144a.

After devoting the bulk of analysis to thesegeneral-purpose-based reasons why Section 9527(a)cannot plausibly mean what plaintiffs interpreted itto mean, Judge Sutton’s opinion briefly addressedwhat the provision does mean. At the close of the dis-cussion, Judge Sutton’s opinion posited that theprovision merely plays the "modest role" of confirm-ing that, by enacting the NCLB, the FederalGovernment is not telling the States and schooldistricts how to develop their own local educationalprograms with their own funds:

The section merely re-enforces the flexibility ~/hatthe Act gives to school districts in developingtheir own local programs and spending their ownfunds in tackling local education matters. Itfunctions as an anti-commandeering rule of con-struction, nothing more. [Pet. App. 156a (em-phasis in original).]

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REASONS FOR GRANTING THE PETITION

I. REVIEW IS WARRANTED BECAUSETHIS CASE PRESENTS A QUESTION OFEXCEPTIONAL NATIONAL IMPORTANCEWITH MAJOR FINANCIAL IMPLICA-TIONS FOR STATE AND LOCAL GOV-ERNMENTS

This case involves a question of exceptional na-tional importance warranting review by this Court:whether, notwithstanding NCLB Section 9527(a), theSecretary may require that States and school dis-tricts spend their own funds to pay for the substan-tial costs of complying with the NCLB’s numerousand costly requirements, even if the Federal fundsprovided under the NCLB are grossly insufficient topay for compliance with those requirements.

The resolution of this question is of enormous con-sequence to States and school districts. Because thefunds the Federal Government has provided to Statesand school districts do not come close to covering thecosts of complying with the NCLB’s requirements,the Secretary’s insistence that States and schooldistricts must nevertheless comply with each andevery requirement of the Act means that States andschool districts must divert their own funds to payfor substantial costs that would not exist but forthe Federal requirements set forth in the NCLB, inamounts that depend on the vagaries of NCLBappropriations from year to year.

The hardships this places on States and schooldistricts, requiring them to cut back on other educa-tional programs in order to toe the line of NCLBcompliance, have only become more severe since thefiling of this lawsuit in 2005, both because the costs

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of compliance, by statutory design, have increased5

and because States and school districts throughoutthe nation are confronting a fiscal crisis of the firstmagnitude. Review of this question is thus particu-larly appropriate at this time and in this case.

In this connection, the fractured nature of theSixth Circuit’s decision further argues in favor ofreview. Due to the equal division of the en banccourt, the District Court’s decision stands affirmed,although none of the sixteen members of the en banccourt endorsed the reasoning of that opinion.Petitioners’ submission on the merits was acceptedby more members of the Sixth Circuit than rejectedit, but the court ended up evenly divided on whetherto affirm the District Court’s dismissal of the case,due to the fact that three judges, expressing a viewrejected by the other thirteen, declared that the casewas not justiciable. The result is to leave itcompletely uncertain whether, under this nation’sprincipal statute governing public education, Statesand school districts can be required to spendenormous and unpredictable amounts of their ownresources to comply with requirements that theFederal Government has dictated but has failed to

5 Many of the NCLB mandates are backloaded and take fulleffect only in the out years of the program. For example, whenthe NCLB was first enacted, school districts were required toannually administer six standardized tests--math and reading/language arts tests to students in each of three different graderanges (3-5, 6-9, and 10-12). 20 U.S.C. § 6311(b)(3)(C). But theNCLB now requires school districts to annually administerseventeen standardized tests--math and reading/language artstests to students in every grade from 3-8 and, once more, tostudents while they are in grade range 10-12, as well as testingin science for students in each of three different grade ranges (3-5, 6-9, and 10-12). Id.

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fund.6 Given this Court’s recognition of the impor-tance that States and local governments be clearlyinformed of the obligations they will be assuming ifthey participate in a program enacted pursuant tothe Spending Clause, this Court should grant reviewto settle this matter.

II. REVIEW IS WARRANTED BECAUSETHE DECISION BELOW CONFLICTSWITH THIS COURT’S SPENDINGCLAUSE JURISPRUDENCE BY EVAD-ING THE GOVERNING CLEAR NOTICERULE

Review also is warranted because the en bancSixth Circuit’s affirmance, essentially by default, ofthe District Court’s dismissal of Petitioners’ claimleaves in place a decision that is contrary to thisCourt’s Spending Clause jurisprudence, and JudgeSutton’s opinion for the six members of the en bancCourt who agreed with the District Court on themerits adopted a mode of analysis that amounts to anevasion of the clear notice rule.

A. In Arlington, this Court refused to construe theword "costs" in a fee-shifting provision within the

6 The question presented here has been raised in one otherpending case, Connecticut v. Spellings, 549 F. Supp. 2d 161 (D.Conn. 2008), which is currently before the Second Circuit. Butthat case arises in a very different posture--Connecticut’s effortto secure judicial review of the Secretary’s denial of Connecti-cut’s proposed amendments to its NCLB State Plan--and theDistrict Court dismissed Connecticut’s Section 9527(a)-basedSpending Clause claim on the ground that it had not beenpresented to the Secretary in the administrative proceedingssought to be reviewed, See id. at 177-78. It is thus unlikely thatany judicial decision on the merits of the question will issue inthe near future.

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Individuals with Disabilities Education Act ("IDEA")to require a school district to reimburse parents forthe expert fees they incurred in bringing a successfulIDEA action against the district. In rejecting theSecretary’s attempt to impose that obligation onschool districts, the Court made clear that, in apply-ing the clear notice rule in a Spending Clause case,"we begin with the text." 548 U.S. at 296. Reasoningthat the word "costs" is not generally understood toinclude "expert fees," the Court found that nothing inthe fee-shifting provision or the other provisions ofthe IDEA "provide[s] [States and school districtswith] the clear notice that would be needed to attachsuch a condition to a State’s receipt of IDEA funds."Id. at 300.

Of signal importance here, the Court reached thatresult in Arlington even though the reimbursement ofexpert fees found support in the IDEA’s "overarchinggoal of ’ensur[ing] that all children with disabilities[are provided] a free appropriate public education’...as well as the goal of ’safeguard[ing] the rights ofparents to challenge school decisions that adverselyaffect their child.’" Id. at 303 (citations omitted).This Court explained that such general goals do notprovide the constitutionally mandated clear notice:

These goals . . . are too general to provide muchsupport for respondents’ reading of the terms ofthe IDEA. The IDEA obviously does not seek topromote these goals at the expense of all otherconsiderations, including fiscal considerations.Because the IDEA is not intended in all in-stances to further the broad goals identified byrespondents at the expense of fiscal considera-tions, the goals cited by respondents do little to

2Obolster their argument on the narrow questionpresented here. [Id.]

B. Starting, as Arlington mandates, with the textof the relevant provision, the most natural reading ofthe language that Congress used in NCLB Section9527(a) supports Petitioners.

1. Section 9527 is part of the "Uniform Provi-sions" subsection of the "General Provisions" of theNCLB, which sets out rules that apply across theboard to the interpretation and implementation ofthe statute. By its placement and its terms, Section9527(a) therefore speaks to how the NCLB, as awhole, is to be construed. In that regard, Section9527(a) establishes two separate limitations on NCLBimplementation that are designed to protect theprerogatives of States and school districts. Onelimitation--set forth in the first clause of theprovision--states that "[n]othing in this Act shall beconstrued to authorize an officer or employee of theFederal Government to mandate, direct, or control, aState, local educational agency, or school’s curricu-lum, program of instruction, or allocation of State orlocal resources." The other limitation, at issue here,is set forth in the final clause: "[n]othing in this Actshall be construed to . . . mandate a State or anysubdivision thereof to spend any funds or incur anycosts not paid for under this Act."

That second clause, on its face, provides that theAct shall not be interpreted in such a way as torequire States or school districts "to spend any fundsor incur any costs not paid for under this Act." TheDistrict Court, however, declared that the languageprohibits "unfunded requirements" only if they go"beyond those [requirements] provided for in the sta-tute." Pet. App. 9a. That reading has nothing to

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commend it. Presumably a requirement not "pro-vided for in the statute" cannot be mandated whetherit is funded or not, so, on the District’s Court’s read-ing, Section 9527(a) becomes mere surplusage. Buteven more to the point, Section 9527(a) provideswithout qualification that States and school districtscannot be required "to spend any funds or incur anycosts not paid for under this Act," period. The Dis-trict Court’s conclusion that States and school dis-tricts can be forced to spend funds and incur costs oncompliance requirements not paid for under the Act,as long as the requirements on which the State orschool district is forced to spend its own funds areamong the many requirements (e.g., testing, data-collection, reporting and school-intervention require-ments) "provided for" in the Act, is a highly strainedreading of Section 9527(a), under which the statutefalls far short of providing the clear notice that theSpending Clause requires.

2. Although seven of the members of the en banccourt rejected both the analysis and the conclusionreached by the District Court, see supra at 12-13, theopinion written by Judge Sutton for six members ofthe court agreed with the District Court that Section9527(a) does not prohibit requiring States and schooldistricts to spend their own funds to comply withNCLB requirements. But the clear meaning JudgeSutton claimed to find in Section 9527(a) was not thesame as the clear meaning the District Court thoughtit had found: according to Judge Sutton, Section9527(a) "merely re-enforces the flexibility that theAct gives to school districts in developing their ownlocal programs and spending their own funds intackling local education matters." Pet. App. 156a.

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That construction is just as untenable as theDistrict Court’s construction. Ensuring that schooldistricts remain free to "develop[] their own localprograms and spend[] their own funds in tacklinglocal education matters" as they see fit is the officeof the first part of Section 9527(a), which prohibits"mandat[ing], direct[ing], or control[ling] a State,local educational agency, or school’s curriculum, pro-gram of instruction, or allocation of State or localresources." Hence, the construction proffered byJudge Sutton’s opinion merely takes a somewhatdifferent route than the District Court to arrive atthe same result of reducing to surplusage the secondpart of Section 9527(a), which prohibits "mandat[ing]a State or any subdivision thereof to spend any fundsor incur any costs not paid for under [the NCLB]."7

7 Judge Sutton also contended that because the languagerelied upon by Petitioners is "a single half-sentence 559 pagesinto the Act," Petitioners’ understanding of Section 9527(a)would make it a stealth provision--an "’elephant[]’" hiddenwithin the "mousehole[]" of an "’ancillary provision[].’" Pet.App. 159a-160a (quoting Whitman v. American Trucking Ass’n,531 U.S. 457, 468 (2001)). As an initial matter, the meaningand import of an enactment does not hinge on its length or onwhich page it appears (otherwise the equal protection clause ofthe Fourteenth Amendment could be written off as a mere half-sentence in a document appended to the end of the Consti-tution). Besides, the placement of Section 9527(a) within thestatute, far from concealing its import, makes its significanceclear. Section 9527(a) is located among the "Uniform Pro-visions" set forth in Part E of NCLB Title IX’s "GeneralProvisions." Those provisions apply, across the board, to theentirety of the NCLB and include such fundamental matters asprohibitions against discrimination. See 20 U.S.C. §§ 7913,7914. Furthermore, the relevant legislative history demon-strates that Congress was well aware of the significance of the"single half-sentence" that it enacted in NCLB Section 9527(a).That language appeared in three education statutes passed in

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B. But Judge Sutton’s discovery of"clear notice" inthe NCLB was not in any event based principally ona construction of Section 9527(a) or of any otherspecific statutory text. Contrary to this Court’s ad-monition in Arlington that the starting point andprincipal focus of the "clear notice" inquiry must bethe statutory language, Judge Sutton does not evenmention Section 9527(a) until late in his opinion,after first discussing at length his conception of"[t]hebasic bargain underlying the Act," Pet. App. 141a,and the policy "centerpiece of the Act," Pet. App.142a, which, in his view, should trump Petitioners’reading of Section 9527(a).

In its deployment of that analysis, Judge Sutton’sopinion displays a technique by which courts mayreadily evade the clear notice requirement of thisCourt’s Spending Clause jurisprudence--a techniquethe Court disapproved in Arlington. For the key toJudge Sutton’s approach is the use of overbroad andunduly simplistic conceptions of the statutory pur-pose as a means of finding "clear notice" wherestatutory language points the other way.

1994 (the Goals 2000 Educate America Act, Pub. L. 103-227; theSchool to Work Opportunities Act, Pub. L. 103-229; and theImproving America Schools Act, Pub. L. 103-382), and wascarried over into the NCLB. See Pet. App. 43a-47a (panelmajority’s discussion of the legislative history). During the1993-94 legislative debates concerning an amendment thatintroduced the text that became that "single half-sentence" inthe NCLB, the Members of Congress who spoke on the amend-ment uniformly made clear that the language was designed toprevent the Federal Government from imposing requirementson States and localities for which the federal government didnot pay. See Pet. App. 45a (panel majority’s discussion of thedebates).

241. Judge Sutton’s opinion begins by describing

"[t]he basic bargain underlying the Act" as one inwhich States and school districts are "allocate[d]substantial federal funds" and given "substantialflexibility in deciding how and where to spend themoney," for which the States and school districts "inreturn...must achieve progress in meeting certaineducational ’outputs’ as measured by the Act’s testingbenchmarks." Pet. App. 141a-142a. However, thatformulation fails to acknowledge that a State thatchooses to participate in the NCLB program has noway of knowing how "substantial" the Federal fundswill prove to be. There is nothing in the statute thatwould prevent the Federal Government from provid-ing a level of funding that is not remotely sufficient toenable the States to comply with the Act’s require-ments--which, as Petitioners’ complaint alleges, is infact what has happened; and Judge Sutton’s positionis that the States and school districts neverthelessare obligated to spend their own funds no matter howinadequate the Federal funding has proved to be.

There is no basis in the statutory language orstructure for the notion that such an arrangementconstitutes "the hallmark bargain at the core of thislegislation," Pet. App. 159a. On the contrary, the"bargain" Judge Sutton posits would be an illusoryone, because one side of the bargain--the amount ofFederal funding that will be provided--is both in-determinate and unenforceable.

Equally misplaced are Judge Sutton’s assertionsthat "accountability"--variously described in hisopinion as "the centerpiece," "the essential objective,""the . . . backbone," and "the heartland" of the Act,Pet. App. 142a, 144a, 151a--is the single, overridinggoal of the NCLB, and that Petitioners’ understand-

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ing of Section 9527(a) is "implausible" because itallegedly would undermine that goal.

Purporting to identify a single, overriding goal in acomplex statutory scheme such as the NCLB--whichoccupies 670 pages in the United States Statutes atLarge--is a dubious and perilous endeavor. It is inthe nature of major legislation such as the NCLBthat it will embody multiple purposes and that itsprovisions will reflect a number of political compro-mises pointing in different directions. See Landgrafv. USIFilrn Prods., 511 U.S. 244, 286 (1994) ("Statutesare seldom crafted to pursue a single goal, and com-promises necessary to their enactment may requireadopting means other than those that would mosteffectively pursue the main goal.").

Here, to whatever extent "accountability" may bethe "centerpiece" of the Act, it is error to assume thatthis means that Congress intended to impose "ac-countability," in the form of the Act’s extensiverequirements, at whatever cost to States and schooldistricts. As this Court has explained:

[N]o legislation pursues its purposes at all costs.Deciding what competing values will or will notbe sacrificed to the achievement of a particularobjective is the very essence of legislative choice--and it frustrates rather than effectuates legis-lative intent simplistically to assume thatwhatever furthers the statute’s primary objectivemust be the law.

Pension Benefit Guar. Corp. v. LTV Corp., 496U.S. 633, 646-47 (1990) (quoting Rodriguez v. UnitedStates, 480 U.S. 522, 525-26 (1987) (emphasis inoriginal.)

26It is precisely for these reasons that this Court in

Arlington concluded that the "goals" of the IDEAwere "too broad" to create "clear notice" of a condi-tion placed on the acceptance of funds that was notapparent on the face of the statute itself, because the"goals" of the statute were tempered by "other con-siderations, including fiscal considerations." 548U.S. at 303 (emphasis added). That conclusionapplies with even greater force here, given thespecification in the NCLB that States and schooldistricts are not to be required to pay for "costs notpaid for under the Act."

To paraphrase this Court’s discussion in Arlington:

[The NCLB] obviously does not seek to promote[accountability] at the expense of all other con-siderations, including fiscal considerations. Be-cause [the NCLB] is not intended in all instancesto further [its] broad goals . . . at the expense offiscal considerations, [those] goals.., do little tobolster [the Secretary’s] argument on the narrowquestion presented here. [548 U.S. at 303.]

2. The ease with which a "purpose"-based analy-sis such as Judge Sutton applied in his opinion can beused to nullify the clear notice rule is demonstratedby that opinion’s exaggerated account of how Peti-tioners’ understanding of Section 9527(a) would affectthe posited "centerpiece" of "accountability," and bythe opinion’s failure to consider how the Secretary’sapproach would come "at the expense of fiscal consid-erations," Arlington, 548 U.S. at 303, which areequally a part of the legislative compromise.

a. Judge Sutton’s opinion declares that, if Section9527(a) is read as Petitioners have read it, States andschool districts could avoid complying with NCLB

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requirements whenever they unilaterally decided thatFederal funding was insufficient. See Pet. App. 144a-145a. That is not what Petitioners contend; by itsterms, Section 9527(a) applies to requirements thatin fact are "not paid for" by Federal funding.8

Nor is Judge Sutton correct in his alternativecontention that Petitioners’ interpretation is unwork-able because the flexibility that States and schooldistricts retain in the particulars of their complianceundertakings makes it "impossible to calculate oreven define the costs of complying with the Act’srequirements." Pet. App. 148a. Under the NCLB,States and school districts unquestionably are incur-ring substantial costs that, in the absence of thestatute, they would not be incurring due to their ownprogrammatic choices. For example, prior to theenactment of the NCLB, no school district in thecountry was administering reading/language arts andmathematics tests to its entire student populations ingrades 3 through 8 and in high school; gradingschools based on the participation and performance ofstudents on such tests both in the aggregate and

8 Under the NCLB scheme, a claim that a particular NCLBrequirement should not be imposed on a State or school districtbecause of a lack of Federal funding could arise in one of twoways, each of which would call upon the Secretary to make anadministrative determination as to the merit of the claim. First,a State could request that the Secretary approve an amendmentto the State’s accountability plan to excuse compliance with therequirement. See 20 U.S.C. § 6311({). Second, a State or schooldistrict electing to act unilaterally by ceasing to comply with arequirement of NCLB would face the prospect of the Secretary’staking enforcement action by instituting administrative pro-ceedings. See 20 U.S.C. 1234c(a). In neither case would themere assertion by a State or school district that federal fundingis inadequate suffice.

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by disaggregated NCLB subgroups; and taking theactions required by the NCLB against schools thatdid not achieve adequate test results for each studentsubgroup. The costs of such measures are plainlysusceptible to calculation.

To be sure, in some instances there may be room todispute whether a cost that a State or school districtattributes to the NCLB is in reality a cost that wouldhave been incurred even in the absence of the sta-tute. But that is neither a new problem nor aninsuperable one: under the longstanding supple-ment-not-supplant provisions of the ESEA, theSecretary has long made determinations as to whatStates and school districts would be spending ontheir programmatic activities in the absence ofFederal funds. See Bennett v. Kentucky Dep’t ofEduc., 470 U.S. 656 (1985) (upholding Secretary’sorder requiring a state to return federal funds thatwere used to supplant state expenditures).

b. At the same time, Judge Sutton’s opinion givesno account to the harm that would befall States andschool districts under the Secretary’s interpretation,pursuant to which States and school districts wouldbe required to bear anywhere from zero to one hun-dred percent of the substantial costs of fullycomplying with all of the requirements imposed onthem by the NCLB, depending on the extent to whichthe Federal Government chooses to fund the NCLBfrom year to year. The direct consequence, whenFederal funding is insufficient--as it has been to anextreme degree--is that States and school districtsare forced to divert funds from their existing educa-tional programs and priorities and press those scarceresources into service in meeting Federal require-ments.

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Given the "well established" principle "that educa-tion is a traditional concern of the States," UnitedStates v. Lopez, 514 U.S. 549, 580 (1995), the clearnotice rule should apply with particular force where,as here, the putative condition on Federal fundingwould result in "the surrender of one of, if not themost significant of, the powers or functions reservedto the States by the Tenth Amendment--the educa-tion of our children." Virginia Dep’t of Educ. v. Riley,106 F.3d 559, 566 (4th Cir. 1997) (en banc). YetJudge Sutton’s opinion, in exalting the interest in"accountability," sets at naught Congress’s interest inavoiding the imposition on States and school districtsof unfunded obligations that would leave those gov-ernments unable to devote their own resources tolocal educational priorities.

If the clear notice rule means anything, it meansthat a court cannot hold that a Spending Clausestatute imposes massive obligations on States andlocal governments that run counter to a provision inthe statute which, on its most natural reading,prohibits the imposition of those obligations, merelybecause the court deems the imposition of thoseobligations essential to a single "purpose" that thecourt has chosen to select from among the numerousdifferent objectives and concerns that shaped thelegislation.

C. Considered according to its terms and in con-text, Section 9527(a) reflects the answer to a fun-damental policy question: if Federal funds fall shortof what is required for full compliance with theNCLB’s requirements, did Congress intend for Statesand school districts to fill the gap by diverting fundsfrom their own educational programs and priorities,or did Congress intend for the NCLB’s compliance

3O

obligations to be tempered so as to avoid that result?This question reflects a judgment as to which sove-reign’s interests should give way in the event thatFederal funding for the NCLB’s ambitious goals fallsshort of what is necessary for States and schooldistricts to implement fully its requirements. Con-gress’s answer--as reflected in the plain language ofSection 9527(a)--is that States and school districtsshould not be obligated to divert their own funds tomeet all of the Federal Government’s NCLB educa-tional priorities. Given the substantial State andlocal interests at stake, it certainly cannot be saidthat this answer is so outlandish as to call for strain-ing to read the language of Section 9527(a) out of thestatute or abrogating the clear notice rule by meansof tenuous inferences drawn from an exaggeratedfocus on only one of the multiple objectives Congressbalanced in enacting the NCLB.

If the decision below is allowed to stand, States andschool districts will be required to divert substantialamounts of their limited resources from educationalprograms of their own choice to programs mandatedby the Federal Government, in which (as the amiciStates explained, see supra at 10-11), the States andschool districts agreed to participate on the under-standing that, by virtue of Section 9527(a), theywould not have to spend their own resources ifsufficient Federal funding was not provided for theseFederal initiatives. The District Court decisionwhich the equally divided Court of Appeals hasaffirmed pulls the rug out from under the States andlocal governments through a construction of Section9527(a) that is far from the most natural reading ofthe provision--indeed, the District Court’s construction

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effectively rewrites the provision. In turn, the sixjudges of the Court of Appeals who agreed with thatresult employed an approach that refuses to giveSection 9527(a) its due simply because the provision,if given its natural meaning, would create a tensionwith one statutory objective which those judgesdeemed to be the sole touchstone for construing theNCLB, ignoring other objectives that are equally partof the congressional compromises that forged thismajor legislation.

The result is to subject States and school districtsto enormous financial obligations of which they hadno clear notice when they elected to participate in theNCLB. Because of the significance of that outcome,and because the decisions below fail to adhere tothis Court’s clear notice rule for Spending Clauselegislation--and, in particular, are in conflict withArlington--the case warrants review by this Court.

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CONCLUSION

For the foregoing reasons, the petition for writ ofcertiorari should be granted.

Respectfully submitted,

PHILIP A. HOSTAKNATIONAL EDUCATION

ASSOCIATIONOffice of General Counsel1201 16th Street NWSuite 820Washington, DC 20036(202) 822-7035

January 14, 2010

JEREMIAH A. COLLINSCounsel of Record

BREDHOFF 8z KAISER, P.L.L.C.805 15th Street, NWSuite 1000Washington, DC 20005(202) 842-2600

Attorneys for Petitioners

DENNIS POLLARD419 Puritan Ave.Birmingham, MI 48009(248) 988-5690

Counsel for PetitionerSchool District of theCity of Pontiac