Earlier this month, the U.S. Court of Appeals for the Sixth Circuit ruled on a 2006 lawsuit challenging the federal No Child Left Behind law. Plaintiffs charged that it was an “unfunded mandate.”

The appeals court judges failed to reach a majority decision, thereby upholding a lower court decision to dismiss the case. With the continued support of the National Education Association, the plaintiffs (school systems in MI, TX, and VT and ten NEA affiliates) will likely appeal.

The dissenting opinion could have simply read, “If you make a deal with the devil, then you are going to get burned.” That is the basic message in the dissent written by circuit court judge David W. McKeague (my new hero).

Imagine the following: there is a service with which State and local governments have historically provided its citizens. The governments finance the service through taxes. Local provision, local financing, local control. But now, imagine that the federal government comes along and offers a deal associated with that service. The deal comes with both a carrot (more money) and a stick (more duties). A reading of the offer sheet confirms what could be expected: the duties are mandatory if they choose to participate, but the money, well, like all money from the federal government, is subject to change from year-to-year. But, the reading also confirms that the offer can be accepted in one period and dropped the next, so the risks are not open-ended. The State and local officials are thus faced with a choice: accept the money and assume the duties, or forgo both and go it alone with less money but fewer duties.

There is, of course, really no need to imagine such a world?what I have described is not the Emerald City in the Land of Oz but rather this country?s primary and secondary education system. But rather than wearing green-tinted glasses, I submit that the inhabitants of this system?State and local school officials?had a crystal clear vision of what Congress was offering them by way of the No Child Left Behind Act of 2001 (the ?NCLB?). Many of them could not bring themselves to pass up the federal funds, but simply hoped that someone or something would save them at the end of the road. Today the majority does exactly that.