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Plaintiff attorneys who have been battling school funding lawsuits for decades are finding new ammunition in their legal battles from an unlikely source — the No Child Left Behind Act. Lawyers say the 2002 federal mandate that all students meet or exceed state standards in reading and math within 12 years — as well as several state learning requirements — has given rise to a new argument: Governments are asking schools to meet even newer and higher learning standards, but they’re still not giving them the money to do it. Molly Hunter, an attorney with Campaign for Fiscal Equity, a nonprofit group seeking to reform New York’s school funding system, said school funding plaintiffs nationwide are starting to raise No Child Left Behind requirements in their lawsuits. “How are we to meet these standards without the funds?” said Hunter. “The plaintiffs are starting to put the No Child Left Behind requirements into their complaints, naturally. And the courts are hearing the evidence.” Steve Morrison, who has spent more than 10 years litigating an ongoing school funding suit in South Carolina on behalf of poor, rural school districts, noted that “state accountability acts and the No Child Left Behind Act are putting a laser focus on the failing schools, and the children who are under served in those failing schools.” Abbeville County School District v. State, 515 S.E.2d 535 (S.C. 1999). He said the federal mandate, along with state mandates, allows plaintiff attorneys to argue that despite the stricter accountability and testing requirements, poor schools are still failing, and still no money is coming through to fix the problem. South Carolina is one of 23 states that currently has an educational funding lawsuit pending in court. Six of those suits were filed in the past two years in Georgia, Nebraska, Alaska, North Dakota, Mississippi and Kentucky. Morrison, of Nelson Mullins Riley & Scarborough in Columbia, S.C., said the No Child Left Behind Act was “a huge part of our hundred-day trial.” The arguments in the trial ended in December, with the plaintiffs asking the state to declare the state education finance system unconstitutional. A decision is expected this summer. “I told them, ‘Test our kids all you want. Just give them a reasonable chance to pass the tests,’” said Morrison, who took the case pro bono. By reasonable chance, he meant give them more money. Robert Stepp, an attorney for South Carolina, said that, despite the federal mandate’s requirements, South Carolina is meeting its state constitutional requirement to provide the opportunity for a minimally adequate education. “You just can’t incorporate the No Child Left Behind Act into our state constitution,” said Stepp of Sowell Gray Stepp & Laffitte in Columbia, S.C. Montana attorney Jim Molloy, who is handling a school funding suit in Montana, made similar arguments before a trial court last year. He said the No Child Left Behind Act allowed him to argue that if the government is going to hold schools accountable for standards, then they have to determine what resources are necessary to meet those standards. “I have made it clear that before the No Child Left Behind Act, we had an inadequately funded school system. And once you consider the No Child Left Behind Act, [the problem] becomes more significant,” said Molloy of the Molloy Law Firm in Helena, Mont. Molloy’s case is pending before the Montana Supreme Court. Columbia Falls School District v. Montana, 04390. Attorney Tom Cox, who is handling a new school funding suit filed last year in Georgia, anticipates that the No Child Left Behind Act will be raised in upcoming court proceedings. Consortium for Adequate School Funding in Georgia v. State of Georgia, 2004 CV 91004 (Fulton Co., Ga., Super. Ct.). Cox, of Weekes & Candler in Decatur, Ga., said the federal mandate has the potential to help plaintiffs, who allege that the state education funding system is inadequate and failing kids, by focusing on the results of education and the performance of the schools. “And in states like Georgia, where there are some pretty miserable performance outcomes, I think the No Child Left Behind law will bring those more into focus,” Cox said. Tresa Baldas is a reporter with The National Law Journal, a Recorder affiliate based in New York City.

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