Keith Johnson, Deseret Morning News
PROVO The classic power struggle between states and the federal government has surfaced in modern times in education, Virginia's solicitor general says.
Federal policies such as No Child Left Behind, Title IX and the Individuals with Disabilities Education Improvement Act are the center of the struggle, said William Thro.
Thro has argued cases of federalism, also known as states' rights, before the Supreme Court of the United States and spoke about the national-state government struggle at a recent education and law conference at Brigham Young University, attended by about 300 people. Lawyers and educators received continuing education credit in their professions for attending the conference.
Thro said an argument can be made that the federal government has no power to make education policy, except in cases in which education practices violate federal law, such as segregation.
"A more moderate argument, I think, is the national government can make education policy, but there is a line they can't cross," he said.
Thro said the federal government may be crossing the line with NCLB, which focuses on eliminating gaps in education of the poor and minority students, and Title IX of the Education Amendments of 1972 to the Civil Rights Act of 1964, which prohibits federally funded schools from discriminating on the basis of sex in sports, admissions, available courses and other opportunities.
If the federal government makes an educational policy, it has to provide states with money to implement it, Thro said.
That hasn't happened with Title IX, Thro said, because many schools have had to start female sports programs without directly receiving federal government money.
With NCLB, "the federal government puts you in a position where you have no choice and you have to take the money," Thro told the conference attendees, adding that it is coercion.
Courts say that the federal government cannot coerce the states, cut the Supreme Court has not defined coercion.
Many people believe IDEA, the federal disabilities education act, is an illegal federal government mandate, but Thro disagrees.
"In that instance, the money follows the condition," he said, arguing that IDEA designed to ensure that students with disabilities have access to appropriate education programs is different than Title IX and NCLB.
Thro also discussed Utah's current struggle with the U.S. Department of Education. During its special session in April, the Utah Legislature passed a bill that challenges NCLB.
The measure requires Utah educators to follow state educational policies when there is confusion over President Bush's NCLB.
Education secretary Margaret Spellings said Utah students will be hurt in the long run. And while she did not threaten to immediately yank $107 million in federal money Utah receives for education, the results of noncompliance could cost the state, she said.
Thro believes state leaders are playing a game of chicken with the federal government: The loser will be determined by which one backs off first.
Thro couldn't predict Utah's fate. The state could end up in court, he said.
However, Connecticut may beat Utah to the Supreme Court.
The state is suing the Department of Education over NCLB, in part arguing that the federal government doesn't properly fund the policy. The case most likely will be appealed from a lower federal court to the 2nd Circuit Court of Appeals and then, by 2008, to the Supreme Court.
The Supreme Court is asked to hear 8,000 cases a year. It accepts one case in 100, Thro said."If the Connecticut lower federal court were to invalidate No Child Left Behind, the (Supreme) Court would almost certainly take it," he said.
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