To all the states, Maine included, that have been carping about their costs of the federal education act No Child Left Behind (NCLB), a federal judge last week had an answer: Too bad. The act may well cost state and local governments money, but, says federal Judge Bernard Friedman of Michigan in Pontiac, et al., v. Spellings, if Congress had a problem with passing along costs it should have had the legislation “say so clearly and unambiguously.”

It didn’t, he says, so the complaint from the National Education Association is dismissed, though it will likely be appealed. Rather than continuing a fight in the courts, however, states and cities worried about the cost of NCLB should appeal to Congress to amend the language of the act.

“Since its enactment,” Judge Friedman writes, “the NCLB has been funded at billions of dollars less than necessary for states and school districts to comply with its mandates.” As a result, just about every state has some sort of formal complaint against the Bush administration’s reform intended to raise reading and math skills especially among traditionally low-achieving student groups. And they all got the same answer the Maine Legislature did when it asked for a waiver based on underfunding.” Then-Secretary Rod Paige replied, “Not in this century. Not in the country.”

That continues to be the department’s position, and it is supported by the act while it remains voluntary – a state could drop its requirements if it gave up federal education dollars covered by NCLB, notably Title I funding. The fact that no state has done this suggests how possible that option really is.

The hope for proper NCLB funding is in Congress, where the conferees who produced a final version of the act recognized the funding problem and said they “strongly encourage Congress to continue to significantly increase funding for Title I, Part A. Such funding … is critical to helping schools close the achievement gap. …”

Some of the strongest defenders of the act in Congress argue it is properly funded. “It is absurd for anyone … to suggest President Bush’s No Child Left Behind Act is not adequately funded,” said U.S. House Education & the Workforce Committee Chairman John Boehner, R-Ohio, a couple of years ago.

From the Senate, Judd Gregg, R-N.H., then-chairman of the Committee on Health, Education, Labor and Pensions, said, “states are being provided with the resources they need to adequately and accurately assess student progress and make sure no child is left behind.”

Not according to Judge Friedman, but the two sides should be able to agree on an amendment that provides states with additional funds when they could demonstrate qualified costs above normal funding levels. That would meet the goal supporters of NCLB have always had – to adequately fund assessment of state progress plans.

There are more lawsuits against NCLB coming as well as continued complaints about the program’s flexibility even as it provides more of it. Offering a verifiable way to compensate states with real costs would end much of the protest.