No Child Left Behind: racial equal educational opportunity through school finance litigation.

I. Introduction

The No Child Left Behind Act of 2001 (NCLB or "Act") (1) is laudable for its recognition that certain groups are not achieving as well academically as others, and that school districts need to take action to improve their performance. While the NCLB seems to acknowledge the need for different approaches for different students, it is doubtful that the remedial provisions called for by the statute--charter schools, state takeovers, and school transfers--will result in improved educational performance for African-American students. (2) As Congress considers the reauthorization of the NCLB, it should seriously consider authorizing other remedies. A major remedy that Congress should consider in closing the achievement gap is race-conscious funding.

This article addresses the inclusion of race-conscious funding as part of the NCLB's remedy plan. The first section provides an overview of the NCLB's goals and the various remedies provided therein as the statute is currently enacted. The second section discusses problems with the NCLB's current remedy plan, specifically under restructuring. The third section addresses how differential funding can help provide educational opportunity for high-minority districts. The final section examines whether race-conscious remedies under the NCLB would be constitutional.

II. Overview of the no Child Left Behind Act

The NCLB's purpose is "to ensure that all children have a fair, equal, and significant opportunity to obtain a high-quality education and reach, at a minimum, proficiency on challenging state academic achievement standards and state academic assessments." (3) One of the goals of the NCLB is to meet "the educational needs of low-achieving children in our Nation's highest-poverty schools." (4) The Act also provides as one of its goals the closure of "the achievement gap between high and low-performing children, especially the achievement gaps between minority and nonminority students, and between disadvantaged children and their more advantaged peers." (5)

The NCLB is built around a system of accountability, with emphasis on state assessments (6) and a sanctions regime. (7) State assessments must be "designed to ensure that students are meeting challenging state academic achievement and content standards [in mathematics, science, reading or language arts] (8) and increasing achievement overall, but especially for the disadvantaged." (9) The content standards and the academic achievement standards must be aligned. (10) The academic achievement standards must measure student achievement at the basic, proficient, and advanced levels. (11) States must also evaluate whether their school districts and public schools are making adequate yearly progress (AYP) toward the standards (12) and closing the achievement gap. (13) AYP results must be disaggregated according to various categories of student subgroups, specifically racial and ethnic groups; (14) the economically disadvantaged; (15) students with disabilities; (16) and limited English proficient (LEP) students. (17)

In furtherance of the accountability system, every year, beginning with the 2005-06 school year, the NCLB requires states to assess student achievement against the content and achievement standards in mathematics, reading, or language arts. (18) These annual assessments must be done in grades three through eight (19) and, at the very minimum, once during grades ten through twelve. (20) Beginning with the 2007-08 school year, states must assess students in science at the very minimum once during grades three through five, (21) once during grades six through nine, (22) and once during grades ten through twelve. (23)