The federal government has failed to provide states with clear enough notice as to who must pay for the costs of complying with the No Child Left Behind Act, or so says the 6th US Circuit Court of Appeals, which ruled Monday against the Bush Administration and the law which has caused much debate since its inception in 2002.

At stake in the lawsuit, which was filed by a collection of local school districts and teachers unions and which is being paid for the by the nation's largest teachers union, is a serious issue: whether states must comply with a law that some have charged to be an underfunded mandate. To be sure, NCLB does require states to test their students annually in core subjects to determine whether they are making sufficient progress. These tests and the costs of design and administration have been a burden on states and districts, but it has been a burden towards an important goal according to one of the bipartisan law's co-authors, MA senator Ted Kennedy.

Kennedy wrote in a Washington Post editorial defense of NCLB that the law has certainly had weaknesses that need to be corrected. But it also has many important positive impacts as well:
"On the plus side, the law demands that all children must benefit -- black or white, immigrant or native-born, rich or poor, disabled or not. Before its enactment, only a handful of states monitored the achievement of every group of students in their schools. Today, all 50 states must do that... All schools now measure performance based not on the achievement of their average and above-average students but on their progress in helping below-average students reach high standards as well."

From my vantage point, the debate over NCLB is likely to see two stages over the next year and a half. The first stage will be set by the presidential election, which, unfortunately, will probably squander any real dialogue about needed improvements and changes. Democrats and Republicans alike have been guilty of using NCLB as a political football on the campaign trail, making sweeping statements against the law in its entirety rather than getting specific as to what has been effective and what needs changing. Until the election is over, real discourse over the big questions on the use of value added measurements of student progress, teacher quality improvement, and the possibility of national standards will not take place. But they will almost assuredly be a very early conversation in the new president's administration, which will be stage two of the debate.

It is a debate that could not be more important, or urgent. A report released a couple years ago but that I just came across underscores the urgency: the expulsion rate of preschoolers across America is so high that it is actually three times higher expulsion rates for K-12 students!