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Philadelphia—The process by which Pennsylvania’s Department of Education permits school districts to appeal determinations made pursuant to the federal No Child Left Behind law is unconstitutional, a state appeals court has ruled. Since the NCLB was passed, state education officials across the country have been reviewing the annual yearly progress (AYP) of individual schools in local districts. Schools that do not meet federal AYP requirements are subject to the first of a series of sanctions. The Reading, Pa., school district has in the past two years challenged the department’s findings that certain of its schools have not met AYP requirements. During the course of that process, the school district appealed the department’s dismissal of a number of its objections to the AYP determination process, including that the department had created an unfunded mandate, had failed to provide assessment tests in Spanish and had failed to give necessary technical assistance to schools that have been sanctioned. In dismissing those objections, the department had noted that under its appeals guidelines, appeals could only be brought on assertions that the department’s AYP determination had been based on incorrect data, that the district had already made significant strides toward complying with the NCLB’s goals or that an uncontrollable circumstance had prevented the district from meeting AYP. Due process violation In its unanimous decision in Reading School District v. Department of Education, a three-judge Commonwealth Court panel concluded that the Department of Education’s appeals policy violated the school district’s due process rights. “As we have seen, the limits set forth in the policy are not consistent with those articulated in [the NCLB],” President Judge James Gardner Colins wrote for the court. “The department has misconstrued the [NCLB] to define those limits for its own purposes, and the limits the department has created are not consistent with due process in the commonwealth. The department has established a closed loop in which it cites federal legislation from which [the Reading School District] may not appeal as its authority for limiting [the school district's] right to appeal the determinations it makes pursuant to its interpretation of that federal legislation. This is not due process.” Len Rieser, co-director of the Education Law Center of Pennsylvania, said that the “unfunded mandate” argument has been one of the pieces of rhetoric most frequently used by the various local school districts and teachers’ unions in other states.

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