The Pontiac School District litigation: How the incoherence of doctrine breeds ideological division

The Sixth Circuit's 8-8 en banc deadlock last month in the Pontiac School District case is a nice illustration of the confusion, both doctrinal and ideological, besetting the federal government's spending power. The (in)decision suggests the folly of using "plain statement" rules like Pennhurst to protect federalism when one lacks a coherent theory about what "federalism" is supposed to accomplish: Such theory-less federalism is a recipe for ideologically driven opinions. This is not to say that the judges betrayed their oaths to uphold the Constitution for partisan ends. It is to say only law, like nature, abhors a vacuum: When both the statute and the canon of construction (Pennhurst) are essentially vacuous, then the judiciary is forced to fall back on something else to decide cases. It is natural that judicial instincts about the merits of NCLB -- an issue over which there is fierce partisan disagreement -- will be the deciding criteria.

At issue in Pontiac School District is the question of whether the No Child Left Behind (NCLB) statute requires states to spend their own money to comply with the NCLB's conditions on the federal money. The school districts' argument against such a requirement is NCLB's stipulation that “[n]othing in this Act shall be construed to . . . mandate a State or any subdivision thereof to spend any funds or incur any costs not paid for under this Act,” 20 U.S.C. § 7907(a). The school districts argue that, under this provision, they cannot be obliged to use their own revenues derived from state and local taxes to comply with the NCLB, because such funds are not "not paid for under this Act." On this view, a state would be entitled to NCLB funds just so long as it spent the federal money on federal purposes -- testing, remedial education, etc. -- even if the state otherwise entirely disbanded its educational system by eliminating state revenues.

Given that the NCLB (like every other federal grant statute) contains a "non-supplanting" requirement, barring recipients from supplanting state money already being spent on federally aided purposes with federal grant dollars, the school district's reading of the NCLB seems textually implausible. But it is a mark of the chaos of spending power doctrines that Judge Cole could garner eight votes for the school district's position: Although preposterous from the point of view of practical public finance, it was not doctrinally senseless under Pennhurst, which requires grant conditions to be unambiguous. Given that the concept of "ambiguity" is itself hopelessly ambiguous, Pennhurst is an invitation for judges to protect state power from federal conditions whenever the conditions in question offend the judge's sense of sound policy.

Does such an ideological split explain the Sixth Circuit's 8-8 division?

Maybe. There have been reports that the Sixth Circuit is an ideologically riven court, and a quick glance at the lineup in Pontiac School District provides suggestive evidence that partisan attitudes towards NCLB may have colored the judges' assessment of the level of ambiguity necessary to trigger Pennhurst. Judge Sutton found the statute sufficiently clear and garnered the votes of fellow Bush (I or II) or Reagan appointees Boggs, Batchelder, Cook, McKeague, griffen, Rogers, and Kethledge. Judge Cole found the statute ambiguous under Pennhurst and won the support of fellow Democrats Martin, Moore, Gilman, White (a Clinton nominee who was re-appointed by Bush II as part of a Senate deal), Daughtrey, and Clay. Gibbons, a Bush II appointee, was the only cross-over vote.

Of course, it could just be a coincidence that the voting pattern of the judges correlates heavily with the voting pattern of Democrats and Republicans on whether NCLB has been adequately funded by the feds, with with Dems arguing that the feds have imposed unfunded mandates on the states and Republicans arguing that it is adequately funded. Judge Cole's opinion, after all, begins with the solemn reassurance that "this case has nothing to do with the ongoing debate between the various advocates of state versus federal educational funding. Rather, we need to answer only a straightforward question of statutory interpretation."

But a cynic can be forgiven for thinking that Judge Cole doth protest too much. I've taught statutory construction for three years at NYU Law School, and I can assure Judge Cole that there is nothing "straightforward" about the application of Pennhurst to these facts, because there is no straightforward way to define the level of ambiguity sufficient to trigger the canon. Instead, each sides' sense of what constitutes a "mandate ... not paid for under this Act" was likely colored by the partisan debates swirling around the meaning of "unfunded mandates" in party platforms, press releases, op-eds, and speeches. Indeed, one can hardly blame the judges for acting on their policy priors. Having been handed an ideological hot potato by Congress without any guidance about how to handle it, the judges had little choice but to fall back on their ideological predilections in construing a largely meaningless statutory phrase.

An alternative, of course, would be to develop a robust theory of federalism that could transcend the politics of particular issues by presenting a level of devolution that each faction could accept. The Left, after all, benefits from "unfunded mandates" like Title IX, and the Right benefits from "unfunded mandates" like the Solomon Amendments. Why not cut a deal in which the right level of federal control would be preserved over the long haul?

But that would require the judges to engage in policy-making from the bench, explicitly discussing the policy merits of decentralization theories by preserving enough centralization to keep each side satisfied by its level of power both when it captures the federal government and when it is huddled in various statehouses. Instead of actually engaging in such policy-making explicitly and honestly, we get the judicial pretense that the mush of Pennhurst somehow could resolve this dispute.