Legislators Question Constitutionality of No Child Left Behind

The National Conference of State Legislatures has just released a report stating that it believes the No Child Left Behind Act to be an unconstitutional usurpation of power by the federal government. Here's the relevant passage:

The standards-based education reform movement has followed much the same path as many other public policy innovations in the United States. Innovation and experimentation began in a few state legislatures, then others adapted the reforms to the unique cultures and circumstances in their states. A second and even third generation of reforms refined the initial approaches. And, with passage of the No Child Left Behind Act, the federal government incorporated many of the state reforms into a single national policy, thereby significantly expanding the federal role in the administration of elementary education. But this assertion of federal authority into an area historically reserved to the states has had the effect of curtailing additional state innovations and undermining many that had occurred during the past three decades.

It also has questionable constitutional underpinnings. It pits the 10th Amendment, which reserves powers to the states, against the spending clause of Article I, which allows the federal government to attach conditions to grants it provides to the states. Although the spending clause often has trumped the 10th Amendment, the U.S. Supreme Court, in South Dakota vs. Dole and other decisions, has placed constraints on how Congress may exercise its powers under the spending clause. The Task Force is concerned that NCLB fails to meet two of the South Dakota vs. Dole tests: its grant conditions are not unambiguous and it uses coercion and not financial inducement to attain state participation.

The full report can be found here.