SUTTON, Circuit Judge, concurring in the order.

Judge Cole and Judge McKeague have written well-reasoned opinions about this difficult case, but I find myself unable to join either one in full. I write separately to explain my position, which comes down to embracing Judge Cole's standing and justiciability conclusion and Judge McKeague's merits conclusion at the panel stage.

I.

Standing. I agree with Judge Cole that the school districts have Article III standing to file this lawsuit. Cole Op. at 260-62. The school districts have alleged a sufficient "injury in fact": the Secretary's threatened withholding of federal funds to which they are otherwise entitled. In a declaratory judgment action, "injury in fact" turns on whether the threatened harm is real and imminent, as opposed to speculative and distant. See MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127-28, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007). This threatened harm is real and sufficiently imminent. The Secretary has consistently denied waivers seeking to evade the Act's requirements due to insufficient federal funding, and the school districts fairly allege that "noncompliance with [the Act's] mandates due to lack of funds will result in the withholding of . . . federal funds." Compl. ¶ 16; see Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Putting the school districts to the choice of abandoning their legal claim or risking sanctions "is a dilemma that it was the very purpose of the Declaratory Judgment Act to ameliorate." MedImmune, 549 U.S. at 128, 127 S.Ct. 764 (internal quotation marks omitted). South Dakota v. Dole, 483 U.S. 203, 205, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987), involved a similar threat — that the government would withhold federal funds — and the Court resolved the merits of that declaratory judgment action without saying a word about standing.

The injury also is fairly traceable to the challenged action of the Secretary, who has authority to withhold the funds and who has declined to relax the testing and assessment requirements of the Act, even if the school districts cannot meet the requirements with federal funds alone. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). And enjoining the Secretary from withholding federal funds for failing to comply with the Act's requirements will redress the threatened injury. See id. at 180-81, 120 S.Ct. 693; Cole Op. at 262.

(As an aside, the school districts separately claim injury in fact due to their ongoing expenditure of local funds to comply with the Act. See also Cole Op. at 261-62. But this theory does not necessarily establish a redressable injury. An injunction against the Secretary will stop him from cutting off federal funds for noncompliance, but it will not require the States to roll back their statutes and regulations implementing the Act's requirements. A State's alteration of its own statutes and regulations turns on "choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict." AS-ARCO Inc. v. Kadish, 490 U.S. 605, 615, 109 S.Ct. 2037, 104 L.Ed.2d 696 (1989). The pleadings do not disclose how Michigan, Texas and Vermont "implement[] a single, statewide State accountability system" ensuring adequately yearly progress, 20 U.S.C. § 6311(b)(2)(A), but their implementing regulations almost assuredly affect the school districts. Yet because one redressable injury suffices to establish standing, the validity of this alternative theory makes no difference.)

Ripeness. The claims also are fit for judicial review, and the districts would suffer hardship if we declined to consider them. See Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); Cole Op. at 262-63. Because this dispute raises an unvarnished question of law that will not benefit from further factual development, it presumptively is ripe for review. See Dixie Fuel Co. v. Comm'r of Social Sec., 171 F.3d 1052, 1058 (6th Cir. 1999), overruled on other grounds by Barnhart v. Peabody Coal Co., 537 U.S. 149, 157, 123 S.Ct. 748, 154 L.Ed.2d 653 (2003). "Nothing would be gained by postponing a decision" when "[t]he issue presented in this case is purely legal, . . . will not be clarified by further factual development" and hardship to the parties exists. Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 581-82, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985); see Cole Op. at 263-64.

While further administrative proceedings might sharpen the nature of some of the school districts' claims, they would not alter or make more concrete the nature of the legal question. The Secretary has made his position about the meaning of the Act clear in public statements, in his stance in this case and in related litigation pending in the Second Circuit. Requiring the school districts to seek waivers or propose plan revisions that the Secretary has confirmed he will not grant — because his interpretation of the Act prevents him from doing so — would merely prolong the litigation, already entering its fifth year. Nor would it help any of the participants in this case, least of all the students attending the affected schools, which presumably is why no party raised this issue on its own. See Union Carbide, 473 U.S. at 581-82, 105 S.Ct. 3325. No Lawyer Left Behind is not the name of the Act.

Civil Rule 19(a). I do not agree that Michigan, Texas and Vermont are necessary parties, now called "required" parties, under Rule 19(a) and cannot agree that we must dismiss the complaint in their absence. Let me start by resisting the idea that we must, or should, suddenly invoke Rule 19 to resolve this case — a rule that would appear for the first time in the record and pleadings of this case in our decision dismissing the complaint. I accept that the federal courts may, as a matter of discretion, raise required-party issues under Rule 19(a) on their own and may do so for the first time on appeal — even when the parties have forfeited the issue. Provident Tradesmens Bank Trust Co. v. Patterson, 390 U.S. 102, 111, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968); see also Bowling Transp., Inc. v. N.L.R.B., 352 F.3d 274, 281 (6th Cir. 2003). But that does not make the issue one of subject matter jurisdiction, which it is not. Lincoln Property Co. v. Roche, 546 U.S. 81, 90, 126 S.Ct. 606, 163 L.Ed.2d 415 (2005). And it does not establish that we should insert Rule 19(a) into a case whenever it occurs to us, only when it is prudent. This case, and the equally high-profile case pending in the Second Circuit, have been going on since 2005. See Connecticut v. Spellings, 453 F.Supp.2d 459, 465 (D.Conn. 2006). The three affected States — Michigan, Texas and Vermont — surely know about this litigation and just as surely have made considered decisions not to join it. Indeed, it is quite possible that, even if we required the Governors of these States or the Secretaries of their respective departments of education to join the case, they still would opt not to take a position on the issue at hand. I am not sure we can make a State take a stand on the point, and I know we cannot make it take a coherent one. What we might gain from such a ruling thus is far from clear.

What is more, after the parties filed supplemental briefs before the en banc court and after the en banc oral argument, we sua sponte raised three "justiciability" questions. While the third question asked whether we should proceed in the absence of the States, we did not ask the parties to brief Rule 19 — not classically thought of as a justiciability doctrine — and we still have not done so. Not surprisingly, in their supplements to the supplemental en banc briefs, no party — and not one of the four amici in their merits briefs — identified a lurking Rule 19 problem, and it remains quite possible that all of the participants in this case disagree that there is one. Cf. Huber v. Taylor, 532 F.3d 237, 249 (3d Cir. 2008). While no party to the case would be surprised if we resolved the case on ripeness grounds, relying in part on the absence of the States, all parties to the case (I suspect) would be surprised to see us dismiss the case under Rule 19. No doubt, had we discovered an absence of subject matter jurisdiction at this late stage of the case, we would have to dismiss the dispute, no matter how lamentable that development would be, no matter how astonished the parties would be. But I am aware of no precedent that compels us sua sponte to insert Rule 19 into the case at this point and to dismiss the case in its fifth year of litigation. In my view, we should answer the question of statutory interpretation that the school districts' complaint asked us to answer and leave Rule 19 out of it.

Be that as it may, Michigan, Texas and Vermont are not "required" parties under Rule 19(a)(1). An entity is a "required party" if:

(A) in that person's absence, the court cannot accord complete relief among existing parties; or

(B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may:

(i) as a practical matter impair or impede the person's ability to protect the interest; or

(ii) leave an existing party subject to substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.

Fed.R.Civ.P. 19(a)(1).

The first ground for treating the three States as required parties — that the court "cannot accord complete relief without them, Fed.R.Civ.P. 19(a)(1)(A) — does not exist. The school districts seek to enjoin the Secretary "from withholding from states and school districts any federal funds . . . because of a failure to comply with the mandates of the NCLB that is attributable to a refusal to spend nonNCLB funds." Compl. at 58. Enjoining the Secretary from withholding federal funds from the school districts and the States does not require the presence of the States. It requires only the presence of the Secretary.

It also is far from clear that the three States claim the kind of "interest," Fed.R.Civ.P. 19(a)(1)(B), that is cognizable under the other two grounds for treating the States as required parties. The States do not have a legally protected interest that resolution of the Pennhurst question would threaten, a missing ingredient that is fatal in several circuits. See, e.g., United Keetoowah Band of Cherokee Indians of Okla. v. United States, 480 F.3d 1318, 1324-25 (Fed. Cir. 2007); Liberty Mut. Ins. Co. v. Treesdale, Inc., 419 F.3d 216, 230 (3d Cir. 2005); Makah Indian Tribe v. Verity, 910 F.2d 555, 558 (9th Cir. 1990). The States instead have an "interest in promoting what [they] regard[] as enlightened public policy," Am. Maritime Transp., Inc., 870 F.2d 1559, 1562 (Fed. Cir. 1989) — namely, their vision of how the Act should be interpreted — and have an interest concerning the obligations that come with accepting funding under the Act, see Liberty Mut. Ins. Co., 419 F.3d at 230 (holding "merely a financial interest" is not enough under Rule 19(a)(1)(B)). I recognize that we have not yet spoken clearly on what types of interests Rule 19 encompasses, and I see no need to take a stand today. I note only that the States' presumed "interests" in this case are a distant cry from the types of interests that normally implicate Rule 19(a)(1)(B), and that they are more reminiscent of the kinds of interests that require just notice, not mandatory joinder. See Fed R. Civ. P. 5.1 (requiring a party to notify the state attorney general when challenging a state law but not requiring a court to consider whether the state attorney general is a necessary party); see also Republic of Philippines v. Pimentel, ___ U.S. ___, 128 S.Ct. 2180, 2185-86, 2189, 171 L.Ed.2d 131 (2008) (finding the Republic of the Philippines a required party in case involving claims against the property of Ferdinand Marcos); Minnesota v. United States, 305 U.S. 382, 386-88, 59 S.Ct. 292, 83 L.Ed. 235 (1939) (condemnation dispute); Hooper v. Wolfe, 396 F.3d 744, 747-48 (6th Cir. 2005) (recovery of diverted assets); Keweenaw Bay Indian Community v. Michigan, 11 F.3d 1341, 1343-44, 1347 (6th Cir. 1993) (tribal fishing rights).

Even if the States have a cognizable interest, however, they are not required parties under other requirements of Rule 19(a)(1)(B). Proceeding without them will not "as a practical matter impair or impede" their ability "to protect the[ir] interest[s]." Fed.R.Civ.P. 19(a)(1)(B)(i). When States stick their heads in the sand for nearly five years of litigation about a high-profile lawsuit, it is difficult to say that proceeding without them will impair their interests — which so far seem focused above all on not being forced to take a public stand on the issues presented.

Nor is there any risk of prejudice to the States if we proceed to the merits without them. See Republic of the Philippines v. Pimentel, 128 S.Ct. at 2189. The matter at hand is not a challenge to the constitutionality of a state law or even to the meaning of a state law. It concerns the meaning of a federal law: Namely, did Congress satisfy the Pennhurst clear-statement rule by "clearly" describing "the conditions that go along with the acceptance of . . . funds" under the Act? Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 304, 126 S.Ct. 2455, 165 L.Ed.2d 526 (2006). We know that States need not invariably be parties to Pennhurst clear-statement cases because there are many decisions from the Supreme Court involving just a local government as a party, but not a State or even the Federal Government, including one decided a few months ago. See, e.g., Forest Grove Sch. Dist. v. T.A., ___ U.S. ___, 129 S.Ct. 2484, 174 L.Ed.2d 168 (2009); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 127 S.Ct. 1994, 167 L.Ed.2d 904 (2007); Arlington Cent. Sch. Dist., 548 U.S. 291, 126 S.Ct. 2455, 165 L.Ed.2d 526; Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005); Barnes v. Gorman, 536 U.S. 181, 122 S.Ct. 2097, 153 L.Ed.2d 230 (2002); Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999); Gebser v. Logo Vista Indep. Sch. Dist., 524 U.S. 274, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998); Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992).

The facts of this case illustrate why that often will be so. Whichever side Michigan, Texas or Vermont ultimately take on this discrete legal question, there is no reason to think that the present parties will not protect it. Perhaps the States (silently) agree with the policy underlying the Act — that the threat of reduced federal funds is precisely the incentive that the States and school districts need to make "adequate yearly progress" in the achievement tests required under the Act. If so, there is no reason to think that the Secretary will not ably advance that position, and in fact he (and she) already has done so in the five years of litigation. Or perhaps the States (silently) side with the school districts, believing that they should not have to meet achievement test standards that they cannot reach with federal funds alone. Here, too, the school districts have ably advanced this position throughout this litigation, and they have ample incentives to continue doing so. In the end, the Pennhurst question at the heart of this case turns on an issue of statutory meaning, one that will not change — it cannot change — based on equitable or other considerations that a State might or might not choose to raise.

In the absence of any unprotected interests, no prejudice — not even a risk of prejudice — exists. What we have instead is a frustrating reality: How could the three States, all deeply involved in the implementation of the Act, not take a public stance on how this significant piece of legislation should be construed? Whether as intervening parties or as amici, the three States would have done well to offer their views. Yet whatever the explanation may be for their resounding silence, Rule 19(a) does not kick in whenever an entity should take a public stand in litigation; it applies only when its absence irreparably prejudices the entity's interests. That simply is not the case here.

The last ground for invoking Rule 19(a)(1) — subjecting an existing party to multiple or otherwise inconsistent obligations — also is missing. Inconsistent obligations arise only when a party cannot simultaneously comply with the orders of different courts. See Delgado v. Plaza Las Americas, Inc., 139 F.3d 1, 3 (1st Cir. 1998); cf. PaineWebber, Inc. v. Cohen, 276 F.3d 197, 201 (6th Cir. 2001). Here, the Secretary risks only a possible injunction prohibiting him from withholding federal funds if the affected school districts cannot comply with the Act due to inadequate funding. He can readily comply with this order and any subsequent order in cases involving Michigan, Texas and Vermont.

One of Judge McKeague's primary disagreements with me turns on whether we can grant "complete relief without the States. McKeague Op. at 302-03. Because the districts must follow the Act and the existing plans of their respective States, he points out, those plans would have to be amended for the school districts to obtain the relief they seek. But Rule 19 does not turn on the relief that the claimants could have sought but on the relief they did seek. "Rule 19 can be utilized only to bring in parties necessary to a complete and just adjudication of the issues presently before the court." Ross. v. Houston Indep. Sch. Dist., 699 F.2d 218, 230 (5th Cir. 1983) (emphasis added); see also Local 670, United Rubber, Cork, Linoleum and Plastic Workers of Am., AFL-CIO v. Armstrong Rubber Co., 822 F.2d 613, 620 (6th Cir. 1987); 7 Charles Alan Wright, Arthur R. Miller Mary Kay Kane, Federal Practice Procedure § 1604 (3d ed. 2009). The claimants do not seek to be relieved from a specific mandate of the Act but only to enjoin the Secretary from withholding funds. That relief is not contingent on actions of the States, and it is relief we have the power to grant. See LaChemise Lacoste v. General Mills, Inc., 487 F.2d 312, 314 (3d Cir. 1973); cf. 4 James Wm. Moore et al., Moore's Federal Practice, § 19.03[2][d] (3d ed. 2009) ("Joinder should not be compelled when meaningful relief can be granted without the absentee.").

That the three States retain independent authority to withhold funds "[i]n order to enforce the Federal requirements" of the Act, 20 U.S.C. § 1232c(b), or perhaps impose some other form of sanction, does not change things. Rule 19(a)(1)(A) "focuses on relief between the parties and not on the speculative possibility of further litigation" or administrative proceedings "between a party and an absent person." Sales v. Marshall, 873 F.2d 115, 122 (6th Cir. 1989) (internal quotation marks omitted). The States have not threatened or even hinted that they would invoke their § 1232c(b) authority if the school districts won this case, and there is no indication that a State has ever invoked that authority, even though it applies to a wide variety of education programs. Under these circumstances, indeed, it is quite likely that the school districts would not have had standing to name the States as party defendants to enjoin them from this speculative, ill-defined and distant threat. Surely Rule 19(a)(1) does not require what Article III prevents.

II.

That takes me to the merits — the meaning of the No Child Left Behind Act and the nature of the obligation that the school districts and the States undertook when they accepted federal funds under the Act starting in 2002. As the school districts see it, "states and school districts that accept NCLB funding are not required to use their own funds for NCLB compliance," Pontiac Supp. Br. at 12, and accordingly any "failure to comply with the NCLB mandates for this reason does not provide a basis for withholding any federal funds to which they are otherwise entitled under the NCLB," Compl. at 58. As the Secretary sees it, "a State's obligation to implement its plan is not contingent upon a particular appropriation of federal funds or capped at a particular level of state expenditures." Final Br. for the Appellee at 17.

A.

A few rules set the stage for deciding who is right. Congress passed the Act under the Spending Clause. U.S. Const. art. 1, § 8, cl. 1. Congress's spending authority permits it to condition the allocation of federal funds to the States on their compliance with federal regulations, including most notably regulations that Congress otherwise lacks the power to impose. See Dole, 483 U.S. at 207, 107 S.Ct. 2793. Put another way, the Tenth Amendment, the Eleventh Amendment and the Constitution's other structural limitations on congressional authority do not limit properly enacted spending-clause legislation.

Yet other limitations constrain Congress's spending authority: two constitutional limits and a statutory one. As a constitutional matter, Congress may not impose conditions "unrelated to the federal interest" in enacting spending legislation, id. at 207-08, 107 S.Ct. 2793 (internal quotation marks omitted), and it may not "coerc[e]" the States into accepting funds and the regulations that come with them, id. at 211, 107 S.Ct. 2793. These restrictions, however, need not detain us here. Surely there is a legitimate connection between the Act's funding and the conditions imposed on the States who accept it. Congress did not give the States federal money for education, then insist that they move the location of their capitals or rename their state birds. Congress asked them to meet a series of educational requirements in return for receiving education funding.

Perhaps more plausibly, the school districts' complaint could be read to include a claim that the Act is unconstitutionally "coercive," a choice-bending contract of adhesion. After all, what State in these fiscally challenging times would have the fortitude to turn down hundreds of millions of dollars in education funding? (Perhaps suggesting that there is something to the point, no State refused aid under the Act, notwithstanding the conditions that came with it.) But in their briefs in the district court and on appeal, the school districts have not claimed that they were coerced into accepting this bargain. Because they have not developed this claim in any way and because they have trained their arguments not on invalidating the Act but on limiting their responsibilities under it, they have forfeited any claim of unconstitutionality.

The statutory limitation on Congress's spending power, by contrast, lies at the core of this dispute. Given the breadth of Congress's power to impose conditions on States that accept federal money, Arlington Cent. Sch. Dist., 548 U.S. at 296, 126 S.Ct. 2455, given its authority under the Spending Clause to regulate the States beyond the limited and enumerated powers the Constitution otherwise gives it and given that the States are not represented in the Halls of Congress, the federal courts have required Congress to state those conditions "unambiguously" in the text of the statute, Pennhurst State Sch. Hosp. v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981). Analogizing spending clause legislation to a contract that "requires offer and acceptance of its terms," Barnes v. Gorman, 536 U.S. 181, 186, 122 S.Ct. 2097, 153 L.Ed.2d 230 (2002), the Court has explained that Congress's authority to impose conditions on a State "rests on whether the State voluntarily and knowingly accepts the terms of the `contract,'" Pennhurst, 451 U.S. at 17, 101 S.Ct. 1531. Just as parties to a contract "cannot knowingly accept conditions . . . which they are unable to ascertain," neither can the States. Arlington Cent. Sch. Dist., 548 U.S. at 296, 126 S.Ct. 2455 (internal quotation marks omitted). Spending clause conditions thus bind the States only when Congress spells them out clearly in the text of the law.

Even though this clear-statement rule has constitutional roots, it remains a rule of statutory interpretation, one constrained by other canons of statutory interpretation. A State or a school district cannot escape a federal regulation merely by showing possible ways in which a law may be unclear; it must identify a plausible alternative interpretation of the law consistent with its theory of ambiguity. See Bell v. New Jersey, 461 U.S. 773, 783 n. 8, 103 S.Ct. 2187, 76 L.Ed.2d 312 (1983) (rejecting a reading of a statute as "no more than remotely plausible" in favor of a better reading of the law even though it imposed additional obligations on the States); Bennett v. Ky. Dep't of Educ., 470 U.S. 656, 672, 105 S.Ct. 1544, 84 L.Ed.2d 590 (1985) (finding no ambiguity in a provision of the predecessor of the NCLB, the Elementary and Secondary Education Act of 1965, Pub.L. No. 89-10, 79 Stat. 27, because "[n]o plausible reading of the statute or regulations suggests that" Kentucky's actions comported with the statute). A State cannot tenably complain about a congressional bait and switch when the alleged "bait" is premised on an implausible reading of the statute. As is true in other areas of the law, the implausibility of an alternative interpretation of a statute defeats a claim of threshold ambiguity. See Auto-Owners Ins. Co. v. Redland Ins. Co., 549 F.3d 1043, 1047 (6th Cir. 2008) (insurance contract); Zirnhelt v. Michigan Cons'l Gas Co., 526 F.3d 282, 287 (6th Cir. 2008) (ERISA plan); cf. Cuomo v. Clearing House Ass'n, L.L.C., ___ U.S. ___, 129 S.Ct. 2710, 2715, 174 L.Ed.2d 464 (2009) ( Chevron).

In gauging statutory ambiguity, the courts also apply a wide-angle, not a telephoto, lens. What matters is not whether a provision is ambiguous when read in isolation but whether it is ambiguous when read in context. See, e.g., Pennhurst, 451 U.S. at 19, 101 S.Ct. 1531 (Spending Clause); FDA v. Brown Williamson Tobacco Corp., 529 U.S. 120, 132, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) ( Chevron); Prater v. Ohio Educ. Ass'n, 505 F.3d 437, 441 (6th Cir. 2007) (contract).

B.

Measured by these yardsticks, the No Child Left Behind Act clearly requires the States (and school districts) to comply with its requirements, whether doing so requires the expenditure of state and local funds or not. A contrary interpretation is implausible and fails to account for, and effectively eviscerates, numerous components of the Act.

The basic bargain underlying the Act works like this. On the federal side, Congress offers to allocate substantial funds to the States on an annual basis — nearly $14 billion in 2008 for Title I, Part A, a 60% increase in relevant federal funding since 2001 — exercising relatively little oversight over how the funds are spent. On the State side, the States agree to test all of their students on a variety of subjects and to hold themselves and their schools responsible for making adequate yearly progress in the test scores of all students. In broad brush strokes, the Act thus allocates substantial federal funds to the States and school districts and gives them substantial flexibility in deciding how and where to spend the money on various educational "inputs," but in return the schools must achieve progress in meeting certain educational "outputs" as measured by the Act's testing benchmarks. As the Supreme Court recently explained:

NCLB marked a dramatic shift in federal educational policy. It reflects Congress' judgment that the best way to raise the level of education nationwide is by granting state and local officials flexibility to develop and implement educational programs that address local needs, while holding them accountable for the results. NCLB implements this approach by requiring States receiving federal funds to define performance standards and to make regular assessments of progress toward the attainment of those standards. 20 U.S.C. § 6311(b)(2). NCLB conditions the continued receipt of funds on demonstrations of "adequate yearly progress." Ibid.

Horne v. Flores, ___ U.S. ___, 129 S.Ct. 2579, 2601, 174 L.Ed.2d 406 (2009). The school districts' position-that they can accept the federal dollars, spend them largely as they wish, yet exempt themselves from the Act's requirements if compliance would require any local money — undoes this bargain by nullifying some provisions of the Act and undermining several others.

Accountability. Accountability is the centerpiece of the Act, and a plausible interpretation of the legislation cannot ignore that reality. Instead of focusing on how much money school districts spend on each child or "dictating funding levels," the Act "focuses on the demonstrated progress of students through accountability reforms." Id. at 2603. The Act begins with a "Statement of Purpose" that drives home Congress's interest in establishing accountable public schools: "ensuring . . . high-quality academic assessments [and] accountability systems"; "holding schools, local education agencies, and States accountable for improving the academic achievement of all students"; "improving and strengthening accountability"; and "providing . . . greater responsibility for student performance." 20 U.S.C. §§ 6301(1), (4), (6), (7). See Appendix (containing the full Statement of Purpose).

Title I, Part A of the Act carries out this objective by requiring participating States to test their students and, over time, to establish and meet certain benchmarks in doing so. Today, the Act requires all public school students in participating States to take seventeen standardized tests over the course of their school careers, see id. § 6311(b)(3)(C), and requires the States to grade schools and school districts on their ability to make "adequate yearly progress" in the test results, see id. §§ 6311(b)(2)(B), 6316(c)(1). For those participating schools that repeatedly fail to make progress, the Act requires an escalating series of sanctions: (1) starting with "improvement," which gives students the right to transfer into more successful schools and forces schools to develop better practices; (2) moving to "corrective action," which may include a new curriculum, extended hours, or personnel discharges; and (3) ending with "restructuring," which may include discharging large portions of the staff or converting the school into a charter school. Id. § 6316(b); see also id. § 6316(c).

The Act provides limited exceptions to these accountability measures, and none of them applies here. See, e.g., id. §§ 6311(b)(7), 6311(c)(1), 6311(h)(2)(A)(i), 6316(b)(7)(D), 6316(c)(10)(F), 6337(e)(3). By cabining the Secretary's discretion to excuse failure, the Act furthers an essential objective — the source, indeed, of its title — that no child, whether living in inner-city school districts or not, whether suffering from learning disabilities or not, whether English is their second language or not, whether otherwise disadvantaged or not, would be left behind when it came to ensuring not just that more resources were devoted to their education but that objectively measurable progress would be made in their education. See, e.g., id. § 6301(3) (setting goal of "closing the achievement gap between high-and low-performing children, especially the achievement gaps between minority and nonminority students, and between disadvantaged children and their more advantaged peers"). That is why the Act requires each State to set up an annual system of academic assessments in reading, science and math, id. § 6311(b)(3)(A), using "the same academic assessments . . . to measure the achievement of all children," id. § 6311(b)(3)(C)(i) (emphasis added), providing for "the participation in such assessments of all students," id. § 6311(b)(3)(C)(ix)(I) (emphasis added), and requiring " each local educational agency" to collect appropriate data and reports on all student achievement, id. at § 6311(h)(2)(B) (emphasis added).

The school districts' interpretation would break the accountability backbone of the Act. Excusing school districts from compliance with the Act whenever federal funding fell short would make it hard if not impossible to hold them accountable for meeting the Act's goals. If school districts decided they were not given enough money to test all children, they could test just some children. If school districts decided they were not given enough money to fix all underperforming schools, they could fix just some schools. Because the school districts have alleged that virtually every major requirement of the Act is underfunded, see Compl. ¶¶ 32-86, their interpretation would excuse them from all of these requirements, transforming a no-exceptions accountability system into a non-existent one.

The NAACP supports the Secretary in this case, as well as in the Second Circuit case, not because it is satisfied with the levels of federal funding under the Act (few are) but because it does not want the Act's accountability measures violated with impunity — letting schools filled with disadvantaged students off the hook. NAACP Br. at 12 ("The panel's decision invites States and school districts to evade their obligations to poor and minority children."). The NAACP's concern is reflected in the Act itself, which begins by saying that the Act is designed "to ensure that all children . . . reach . . . proficiency on challenging State academic achievement standards and State academic assessments," "especially . . . disadvantaged" students. 20 U.S.C. § 6301 (emphasis added). With the Act's accountability system in place, these goals have a chance of success; without them, they have no chance of success, risking a return to (or a continuation of) a system of lower standards for higher-poverty schools.

Flexibility. The school districts' interpretation is inconsistent not only with the Act's accountability requirements but also with the flexibility the Act gives States and school districts in return for increased responsibility for student achievement. As the Act's Statement of Purpose makes clear, that is the central tradeoff of the Act: "providing greater decisionmaking authority and flexibility to schools and teachers in exchange for greater responsibility for student performance." id. § 6301(7) (emphasis added); see also Horne, 129 S.Ct. at 2601 (the Act "reflects Congress' judgment that the best way to raise the level of education nationwide is by granting state and local officials flexibility to develop and implement educational programs that address local needs, while holding them accountable for the results"). Unlike most spending programs, this one comes with few strings telling the States how they should comply with its conditions. Under the Act, States develop their own curricula and standards, 20 U.S.C. § 6311(b)(1), their own tests to assess whether students are meeting those standards, id. § 6311(b)(3), and their own definitions of progress under those standards, id. § 6311(b)(2)(B), so long as the progress culminates in near-universal proficiency by 2014, id. § 6311(b)(2)(F).

This flexibility extends to spending as well. As the school districts rightly acknowledge, the Act "provide[s] school districts with unprecedented new flexibility in their allocation of Title I funds." Final Reply Br. of Pontiac Sch. Dist. at 3 (internal quotation marks omitted). Some federal funds, to be sure, must be spent in certain ways. See, e.g., 20 U.S.C. § 6303 (reserving some Title I, Part A funds for school improvement); id. § 6317(c)(1) (same); id. § 6318(a)(3)(A) (reserving some funds for parental involvement programs); id. § 6319(1) (reserving some funds for professional development). And the Act strictly confines the use of Title I funds to geographic areas with heavy concentrations of low-income students. See id. § 6313(a). But within these areas and with respect to these priority students, the Act gives States and school districts substantial flexibility in choosing how to spend the money. For instance: Section 6314 gives school districts wide discretion to consolidate funds from various sources and to focus them on certain schools in whatever ways will improve student performance there; § 6313(b) gives school districts discretion to transfer funds between schools within certain guidelines; and § 7305b allows States and school districts to transfer up to 50% of the funds allotted to other education programs to supplement their funds under Title I, Part A.

The substantial flexibility the Act gives recipients over federal funds is surpassed by the near-complete flexibility they retain over their own funds. The only limitation is that participating States cannot reduce their own spending and offset it with federal funding but must use the Act's federal dollars to supplement, not supplant, their own. 20 U.S.C. §§ 6321, 7901. Beyond that basic requirement — a prohibition on fiscal cheating, really — the States can use their dollars however they see fit, whether for teachers or for computers or for facilities or for whatever else they think will help their students the most.

The express and unprecedented flexibility the Act gives to the States in prioritizing the spending of federal dollars — especially in Title I, Part A — cannot co-exist with an interpretation of the statute that allows school districts to exempt themselves from the accountability side of the bargain whenever their spending choices do not generate the requisite achievement. Were the school districts correct, a State could use this flexibility to focus its federal and local resources almost exclusively on improving, say, teacher quality — a legitimate goal no doubt, but one that would allow the State to sidestep the Act's mandatory assessment requirements by contending that it lacked the funds to administer them or to make progress under them. Sch. Dist. of City of Pontiac v. Sec'y of United States Dep't of Educ., 512 F.3d 252, 284 (6th Cir. 2008) (McKeague, J. dissenting). That is not what Congress had in mind. It gave the States a clear and consequential choice: between taking the bitter (accountability) with the sweet (unprecedented flexibility in spending federal and state dollars) or leaving the money on the table.

Costs of Compliance. Not surprisingly, in view of the expansive flexibility that the Act gives States in spending federal and local funds, the Act says nothing about the bill of particulars at the heart of the school districts' complaint: the costs of complying with the Act's requirements. How could it be otherwise? The Act's spending flexibility necessarily makes it impossible to calculate or even define the costs of complying with the Act's requirements.

The primary formula for allocating Title I, Part A grant money does not say a word about costs of compliance. See 20 U.S.C. §§ 6313(c), 6333(a), 6334(a), 6335(a)-(c), 6337. While the Act asks States to submit plans to the Secretary, id. § 6311, and asks school districts to submit plans to the States, id. § 6312, it does not require either entity to estimate the cost of compliance. Nor, in fulfilling their various reporting responsibilities under the Act, must the States or school districts estimate the costs of compliance. See, e.g., id. §§ 6311(h), 6316(a)(1)(C). If, as the Supreme Court recently explained, the Act "expressly refrains from dictating funding levels," Horne, 129 S.Ct. at 2603, why would Congress exempt failing school districts from the accountability requirements based on inadequate "funding levels"? The school districts have no answer.

But even if Congress wished to make costs of compliance a legitimate excuse for, say, inadequate yearly progress, how would it do so? Once Congress decided to measure accountability by educational outputs (gauged by tests scores), as opposed to educational inputs (gauged by dollars), it made objective measurements of compliance costs virtually impossible. Any effort to measure these costs surely would vary from school to school, if not from student to student, and they surely would vary from year to year. The phrase "costs of compliance" has no discernible meaning in this context, as the Act leaves it to the States, no matter how little or how much funding Congress provides, to make discretionary cost choices about how to make meaningful achievement-related progress.

Take a cost estimate for adding an extra hour to the school day, for lengthening the school year or for hiring more math or reading teachers — all plausible ways to improve a school's achievement scores. Each innovation has an estimable cost, to be sure. But that does not establish that the estimate would lead to the requisite progress. And if it did not, then what? Perhaps extending the school day by one more hour, extending the school year by one more week or hiring one more math or reading teacher would do the trick. But maybe not. What works for one school district might not work for another. What, indeed, works for one classroom might not work for the classroom next door, given the correlation between great teachers and great teaching — and the occasional operation of that principle in reverse. Even more discrete costs like developing and administering tests cannot be accounted for in advance given the considerable flexibility States have under the Act in implementing those requirements. Within certain general limits, a State may develop whatever curricular standards and tests it wants. 20 U.S.C. § 6311(b). The State may use pre-existing standards that meet the Act's requirements, id. § 6311(b)(1)(F), or it may create new ones.

In their complaint, to use one example, the school districts say that Brandon Town School District "estimates that . . . it needed to spend $390,000 more than it received in NCLB Title I funding to ensure that the school makes [adequate yearly progress]." Compl. ¶¶ 65. The school district may be right, and we have no license to say that it is not at this Rule 12(b)(6) stage of the case. The issue, however, is not whether the school districts can fairly say that compliance with "adequate yearly progress" requires more federal dollars than the Secretary has allocated to them. It is whether a State could tenably think that the Act excuses non-compliance whenever a school district maintains that it has insufficient resources to make the required progress. Surely every school district could do more with more money. And if that is the case, every failing school district could do more with more federal money — and maybe enough to make adequate yearly progress. It is hard to imagine when — or, for that matter, why — a failing school would ever concede that it was getting sufficient federal funds to make such progress.

"Reflecting a growing consensus in education research that increased funding alone does not improve student achievement," the Act moves from a dollars-and-cents approach to education policy to a results-based approach that allows local schools to use substantial additional federal dollars as they see fit in tackling local educational challenges in return for meeting improvement benchmarks. Horne, 129 S.Ct. at 2603 n. 17. The Act, in short, rejects a money-over-all approach to education policy, making it implausible that the heartland accountability measures of the law could be excused whenever schools, exercising their flexibility over how to spend federal and local dollars, decided they cost too much.

Express waiver authority in some areas and silence in others. Congress knew how to allow the Secretary to waive obligations under the Act, and it did so in discrete circumstances. The Act's general waiver provision allows States and school districts to seek waivers on just two grounds: that the waiver will "(i) increase the quality of instruction for students; and (ii) improve the academic achievement of students." 20 U.S.C. § 7861(b)(1)(B). Neither ground excuses schools from the accountability measures due to insufficient federal funds.

The Act also specifically describes two types of exceptions from the § 6311 accountability requirements. One applies only in case of "exceptional or uncontrollable circumstances, such as a natural disaster or a precipitous and unforeseen decline in . . . financial resources." Id. §§ 6311(b)(3)(C)(vii), 6311(b)(7), 6311(c)(1), 6311(h)(2)(A)(i). Not only does neither exemption turn on the sufficiency of federal funding, but one of them — the "unforeseen decline in . . . financial resources" — creates an exemption for sharp declines in local funding, which implies that the Act contemplates local spending.

The other type of exception excuses compliance if federal funding is not sufficient, but again only in limited circumstances. The Act, for instance, allows States to "suspend the administration of, but not cease the development of," annual tests if federal funding falls below certain levels. Id. § 6311(b)(3)(D). Section 6311(c)(2) requires States to "participate in biennial state academic assessments of 4th and 8th grade reading and mathematics under the National Assessment of Educational Progress," but only if "the Secretary pays the costs of administering such assessments." Under the school districts' interpretation, that final qualification is unnecessary and indeed pointless. See Astoria Fed. Sav. Loan Ass'n v. Solimino, 501 U.S. 104, 112, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991) ("[W]e construe statutes, where possible, so as to avoid rendering superfluous any parts thereof."). Congress likewise capped a school district's costs for supplemental educational services at the amount of federal money allocated. Id. § 6316(e)(6). As each of these examples show, Congress knew how to excuse schools from compliance based on inadequate funding, but did so only in discrete circumstances — none of them applicable here. See Hamdan v. Rumsfeld, 548 U.S. 557, 578, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006) ("A familiar principle of statutory construction . . . is that a negative inference may be drawn from the exclusion of language from one statutory provision that is included in other provisions of the same statute.").

Inconsistency between the school districts' interpretation and other provisions of the Act. Besides conflicting with the hallmark features of the Act and ignoring the implications and inferences that follow from Congress's express waiver provisions in some circumstances but not in others, the school districts' interpretation conflicts with, or is at least in tension with, other provisions of the Act. The Act explicitly anticipates that funding to meet the Act's requirements will come from a variety of sources, not all federal. It requires the Secretary, for instance, to examine how States, school districts and schools have used "Federal, State, and local educational agency funds and resources to support schools and provide technical assistance to improve the achievement of students in low-performing schools." 20 U.S.C. § 6491(a)(2)(E)(iv) (emphases added); see also id. § 6491(a)(2)(E)(v) (requiring a similar inquiry to determine how they have "used State educational agency and local educational funds to help [certain] schools . . . meet the requirements described in § 6319 of this title of having all teachers highly qualified not later than the end of the 2005-2006 school year"). This provision contradicts the notion that States and school districts need only meet the Act's requirements to the extent federal funds can do the trick.

Some of the Act's accountability measures apply to every school in a participating State regardless of whether the school receives any federal funding at all. See, e.g., id. § 6311(b)(2). Other requirements apply to every school in a school district receiving funds, whether or not the school itself receives funds. See id. § 6319. Yet these universal accountability requirements cannot be squared with an interpretation of the Act that demands accountability only to the extent a school receives federal funding. See Pontiac, 512 F.3d at 274-75 (McKeague, J., dissenting). Otherwise, an unfunded school district would have no accountability responsibilities under the Act, a notion the Act expressly contradicts.

In passing the Act, Congress also knew how to allocate funds for specific purposes — in the nature of traditional input-based funding programs. Some provisions of the Act tell the States exactly how to "use the [federal] funds." See, e.g., 20 U.S.C. §§ 6313, 6362(c)(7)(A), 6372, 6381c, 6383, 6393, 7114. But these provisions make all the more conspicuous the contrast with other provisions of the Act that say nothing about how to spend the money but mention only the accountability benchmarks the States must achieve in using it. See, e.g., id. §§ 6311(a), 6316(a). Congress showed that it knew how to write input-based provisions, limiting the States' responsibility to spend certain funds on discrete items, and output-based provisions, allowing the States to spend the money however they wished so long as they achieved the federal benchmarks. We should respect the reality that Congress knew how to distinguish between the two. See BP America Prod. Co. v. Burton, 549 U.S. 84, 92, 127 S.Ct. 638, 166 L.Ed.2d 494 (2006).

Ongoing implementation of the Act. If for some reason the States or school districts had any doubt about the nature of the bargain they were undertaking when they first accepted federal funds under the Act, time has cleared things up. Since 2002, when it passed the Act, Congress has made annual appropriations to the States, and each year the appropriations have not been linked to, or premised on, any effort to ascertain the funds needed to make adequate yearly progress. See Compl. ¶¶ 25-31. Yet each year the Department of Education has not wavered: The Secretary consistently has denied attempts to evade the Act's requirements due to insufficient federal funding. By the time the school districts filed this lawsuit in 2005, they plainly were on notice that there was no linkage between the appropriated federal funds and the States' duty to comply with the accountability measures. Notwithstanding that notice, the States continued to participate in the program — continued to accept the spending-legislation offer of funding, as it were, in exchange for the continued obligation to meet the Act's achievement requirements. See, e.g., Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 183, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005) (States had sufficient notice of their responsibility under Title IX because the regulations had "been on the books" for some time); Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 643, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) (same); cf. Bennett, 470 U.S. at 669, 105 S.Ct. 1544 ("the fact that Title I [of the Elementary and Secondary Education Act of 1965] was an ongoing, cooperative program meant that grant recipients had an opportunity to seek clarification of the program requirements"); Brown Williamson Tobacco, 529 U.S. at 143, 120 S.Ct. 1291 (noting in the context of Chevron that "[o]ver time, . . . subsequent acts can shape or focus" the initial "range of plausible meanings" that a statute may have). The Act does not permit the school districts to accept one part of the bargain and discard the other, least of all when the passage of time confirms the two sides of the bargain.

C.

Resisting this conclusion, the school districts argue that 20 U.S.C. § 7907(a), a provision that arrives on page 559 of this 674-page Act, 115 Stat. 1425, 1983, changes everything. Appearing in a section dealing with general rules under the Act, the provision reads in full:

GENERAL PROHIBITION. — Nothing in this Act shall be construed to authorize an officer or employee of the Federal Government to mandate, direct, or control a State, local educational agency, or school's curriculum, program of instruction, or allocation of State or local resources, or mandate a State or any subdivision thereof to spend any funds or incur any costs not paid for under this Act.

20 U.S.C. § 7907(a). According to the school districts, the provision means that the Federal Government may not require the States (or school districts) to spend their own money to meet the Act's requirements — that if the appropriated federal funds do not suffice to meet the accountability measures, the States are free to ignore them. That is not true — for several reasons.

First, § 7907(a) by its terms is a rule of construction, which explains how other sections of the Act should not be "construed." What the school districts urge, however, is something different — to "construe" § 7907(a) itself to create a no-unfunded-mandate exception, to use § 7907(a) to lift § 7907(a) into a sweeping exception to the Act. No one boot straps a boot strap.

Section 7907(a)'s rule of construction has no job to do here. The Act's express trade-off between local flexibility to spend federal funds and local responsibility to obtain output-based progress in doing so has no ambiguity to speak of and thus no ambiguity to be "construed." There is nothing unclear, and no shortage of detail in the 674-page piece of legislation, about this hallmark of the Act. There is no other provision of the Act — at least as far as this dispute is concerned — that calls out for ambiguity-clarifying "constru[ction]."

Second, text is context, and a reading of § 7907(a) in its immediate surroundings confirms the modest role it plays. The section merely re-enforces the flexibility that the Act gives to school districts in developing their own, local programs and spending their own funds in tackling local education matters. It functions as an anti-commandeering rule of construction, nothing more. As such, it prevents the Secretary from construing the Act to "mandate" States or school districts (1) to adopt a particular "curriculum" or "program of instruction"; (2) to "allocat[e]" state or school district resources in a particular way; or (3) "to spend any funds or incur any costs not paid for under this Act." All three limitations parallel the Act's theme of local flexibility — that the States and school districts must be permitted to make their own decisions about how to spend local resources in return for taking on the duty to make progress in a results-driven way. Thus, while the Act requires the schools to make adequate yearly progress, it does not tell them how to do so or mandate the spending of any local money to do so. If satisfying the Act's requirements takes additional money, so be it, but the Act is equally satisfied whether additional costs are incurred or not. Section 7907(a) simply fortifies the Act's focus on results over spending levels, on outputs over inputs. See Horne, 129 S.Ct. at 2603 (the Act "expressly refrains from dictating funding levels").

Judge Cole notes that the Federal Government cannot point to "any provision" of the Act "that explicitly spells out the States' [fiscal] obligations under this Act." Cole Op. 26. That is right, but it is consistent with this feature of the Act. The Act does not tell States to spend; it tells them to do. It does not spell out fiscal obligations; it spells out performance obligations, reporting obligations, parental-involvement obligations, teacher-qualification obligations — all of which the Act makes perfectly clear through hundreds of pages of statutory text. No doubt, these performance obligations cost money, but the Act in general — and § 7907(a) in particular — leave it to the States to make these spending and allocation choices for themselves.

Third, as signaled by § 7907(a)'s appearance in a "general" set of provisions, it does not trump specific directives found elsewhere in the Act. "[I]t is a common-place of statutory construction that the specific governs the general," Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992), and accordingly the school districts cannot leverage § 7907(a)'s "general" rule of construction to destroy the specific bargain offered to the States: the exchange of federal funds with flexibility to spend them in return for a no-excuses commitment to meeting the Act's accountability requirements. The school districts' contrary argument not only ignores this "commonplace" rule of construction but it also undermines other provisions of the Act. To ensure that the Act does not lead local schools to devote fewer local resources to education, the Act requires each participating State to preserve a level of local effort — no less than 90% of the prior year's expenditures. 20 U.S.C. §§ 6321, 7901. But if we read § 7907(a) in isolation in the manner that the school districts urge, it would bar this requirement as well — as a violation of the prohibition against mandating States to "spend any funds . . . not paid for under this" Act. The school districts correctly acknowledge that § 7907(a)'s general rule of construction does not overrule this specific provision, Pontiac Supp. Br. at 20, but they persist in claiming that it overrules the specific bargain at the heart of the Act. They cannot have it both ways. The specific governs the general across the board, not just in some places as opposed to others.

Pennhurst, the school districts' featured case, embraced this form of analysis, paying attention to the difference between general and specific statutory provisions. The statute at hand provided that "[p]ersons with developmental disabilities have a right to appropriate treatment, services, and habilitation for such disabilities," 42 U.S.C. § 6010(1) (current version at 42 U.S.C. § 15009(a)(1)), and the question was whether this language imposed mandatory duties or hortatory goals. After comparing the general language of § 6010 to other provisions that imposed express conditions on federal funding, the Court concluded that "[t]he existence of explicit conditions throughout the Act, and the absence of conditional language in § 6010, manifest the limited meaning of § 6010." Pennhurst, 451 U.S. at 23, 101 S.Ct. 1531. "[A] brief comparison of the general language of § 6010 with the conditions Congress explicitly imposed on the States," the Court reasoned, "demonstrates that Congress did not intend to place either absolute or conditional obligations on the States." Id. at 25, 101 S.Ct. 1531. The same principle applies here. What was sauce for the States in Pennhurst is sauce for the school districts here.

Fourth, § 7907 as a whole supports this interpretation. Labeled "Prohibitions on Federal Government and Use of Federal Funds," the section contains other provisions that all limit federal officials in imposing more conditions on the States than those mentioned in the Act. The other subsections prohibit federal officials from requiring any particular curricula, academic standards or building standards. 20 U.S.C. § 7907(b)-(d). Because words are "known by the company [they] keep[]," Gustafson v. Alloyd Co., 513 U.S. 561, 575, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995), these statutory neighbors reenforce the notion that § 7907(a) is an anti-commandeering rule of construction.

Fifth, it strains credulity to think that Congress, via a single half-sentence 559 pages into the Act, suddenly blinked, changing the hallmark bargain at the core of this legislation. "Congress . . . does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions." Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 468, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001). The National Legislature "does not . . . hide elephants in mouseholes," id., yet that is precisely what the school districts purport to have found hidden in § 7907(a). See also Brown v. Gardner, 513 U.S. 115, 118, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994) ("Ambiguity is a creature not of definitional possibilities but of statutory context.").

D.

Stray remarks in the legislative history and offhand comments by former Secretary of Education Rod Paige do not alter this conclusion. Various Senators and Representatives made statements for and against the Act, arguing in some places that it would impose increased costs on the States and in some places that it would not. See Pontiac, 512 F.3d at 269-271; see also id. at 282-284 (McKeague, J., dissenting). But that makes no difference. The school districts' legislative-history-based arguments about the meaning of § 7907(a) are no more plausible than their text-based ones. In either case, they ask us to embrace an interpretation of § 7907(a) that cannot be reconciled with the hallmark features of the Act. Legislative history also cannot alter the outcome in a clear-statement case. The Pennhurst clear-statement rule turns on textual ambiguity, not ambiguity in the legislative history. If there is textual ambiguity and a plausible state-friendly way to read the statute, that ends the matter. But if there is no such ambiguity, there is nothing for the legislative history to clarify. See Arlington, 548 U.S. at 304, 126 S.Ct. 2455 ("In a Spending Clause case, the key is not what a majority of the Members of both Houses intended but what the States are clearly told regarding the conditions that go along with the acceptance of those funds."); cf. United States v. Nordic Village, Inc., 503 U.S. 30, 37, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992) ("legislative history has no bearing on the ambiguity point" in applying a clear-statement rule).

The same goes for Secretary Paige's statements, which no one claims deserve deference, whether under Chevron or any other doctrine. In one speech, he said that the Act "contains language that says that things that are not funded are not required," Compl. ¶ 15 (quoting Paige speech of Sept. 4, 2003), and in another speech that "if it is not funded, it's not required. There is language in the bill that prohibits requiring anything that is not paid for," id. (quoting Paige speech of Dec. 2, 2003). These comments, however, conflict with others in which Secretary Paige "repeatedly" emphasized that "[i]f a state decides to accept the federal funds [offered under the Act], then it's required to implement the law in its entirety." Compl. ¶ 16 (quoting Paige speech of Mar. 25, 2004). More importantly, these words conflict with the actions of the Department of Education, which has consistently held States accountable under the Act, whether those States are content with the level of federal funding or not. See Compl. ¶ 17-19 (noting the "uniform rejection of requests for waivers from the NCLB mandates based upon a lack of federal funding"). Whatever Secretary Paige meant in his comments nearly six years ago (and it is not clear that they are inconsistent with my reading of § 7907(a)), they are not binding on the Department of Education and cannot create ambiguity where none otherwise exists.

The school districts, lastly, invoke the 1984 Perkins Vocational Education Act, 20 U.S.C. §§ 2301-2471. Their chain of reasoning goes like this: § 7907(a) parallels the first part of § 2306a(a) of the Perkins Act; § 2306a(a), unlike § 7907(a), proceeds to exempt several Perkins Act provisions requiring the expenditure of specific non-federal funds; this exemption implies that these provisions otherwise would conflict with the prohibition; because the exempted provisions require the expenditure of non-federal funds, § 2306a(a) should be read to forbid requiring the expenditure of non-federal funds except as to the specific provisions exempted, and § 7907(a) should be read the same way.

The argument proves too much. Two of the provisions excepted in the Perkins Act — those requiring that States and school districts maintain their financial effort rather than supplanting their previous spending with federal funds, 20 U.S.C. §§ 2391(a), 2413 — have counterparts in No Child Left Behind as well. See id. §§ 6321, 7901. And although § 7907(a) includes no exceptions for these maintenance-of-effort provisions, no one, the school districts included, see Pontiac Supp. Br. at 20, claims that § 7907(a) nullifies the Act's maintenance-of-effort provisions. See United States v. Atl. Research Corp., 551 U.S. 128, 137, 127 S.Ct. 2331, 168 L.Ed.2d 28 (2007) (statutes should not be read to make any provision "a dead letter"). Better, it seems to me, to read § 7907(a) in the context of No Child Left Behind, not the Perkins Act, which was first enacted 18 years earlier and which adds nothing that supports a plausible alternative interpretation of § 7907(a).

* * * * *

Depending on whom you ask, the No Child Left Behind Act might be described in many ways: bold, ground-breaking, noble, naive, oppressive, all of the above and more. But one thing it is not is ambiguous, at least when it comes to the central tradeoff presented to the States: accepting flexibility to spend significant federal funds in return for (largely) unforgiving responsibility to make progress in using them. The theme appears in one way or another in virtually every one of the Statements of Purpose of the Act, and it comes across loud and clear in the remaining 674 pages of legislation. That § 7907(a) suddenly transformed the Act into a no-strings-attached grant program, or for that matter an outright gift program, not only ignores the pages of legislation that precede it, but it also ignores the words of § 7907(a) itself and one of the eternal prerogatives of power: control follows money. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 53 n. 109, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). Here, unlike prior education funding programs, Congress did not exercise that control by telling the schools how to spend the money but by telling them to get results with it. Time will tell whether Congress was wise to move from conditioning federal funds on "adequate" additional local funding to conditioning federal funds on "adequate" local progress. But no state official who read the Act could plausibly think that Congress intended to impose neither condition.

That said, I have considerable sympathy for the school districts, many of whom may well be unable to satisfy the Act's requirements in the absence of more funding and thus may face the risk of receiving still less funding in the future. Yet two Presidents of different parties have embraced the objectives of the Act and committed themselves to making it work. So have a remarkably diverse group of legislators. If adjustments should be made, there is good reason to think they will be. But, for now, it is hard to say that the judiciary will advance matters by taking the teeth out of the hallmark features of the Act. It is the political branches, not the judiciary, that must make any changes, because the Act's requirements are clear, making them enforceable upon participating States and their school districts.

III.

For these reasons, I concur in the order affirming the district court's judgment.

APPENDIX

The purpose of this subchapter is to ensure that all children have a fair, equal, and significant opportunity to obtain a high-quality education and reach, at a minimum, proficiency on challenging State academic achievement standards and state academic assessments. This purpose can be accomplished by —

(1) ensuring that high-quality academic assessments, accountability systems, teacher preparation and training, curriculum, and instructional materials are aligned with challenging State academic standards so that students, teachers, parents, and administrators can measure progress against common expectations for student academic achievement;

(2) meeting the educational needs of low-achieving children in our Nation's highest-poverty schools, limited English proficient children, migratory children, children with disabilities, Indian children, neglected or delinquent children, and young children in need of reading assistance;

(3) closing the achievement gap between high- and low-performing children, especially the achievement gaps between minority and nonminority students, and between disadvantaged children and their more advantaged peers;

(4) holding schools, local educational agencies, and States accountable for improving the academic achievement of all students, and identifying and turning around low-performing schools that have failed to provide a high-quality education to their students, while providing alternatives to students in such schools to enable the students to receive a high-quality education;

(5) distributing and targeting resources sufficiently to make a difference to local educational agencies and schools where needs are greatest;

(6) improving and strengthening accountability, teaching, and learning by using State assessment systems designed to ensure that students are meeting challenging State academic achievement and content standards and increasing achievement overall, but especially for the disadvantaged;

(7) providing greater decisionmaking authority and flexibility to schools and teachers in exchange for greater responsibility for student performance;

(8) providing children an enriched and accelerated educational program, including the use of schoolwide programs or additional services that increase the amount and quality of instructional time;

(9) promoting schoolwide reform and ensuring the access of children to effective, scientifically based instructional strategies and challenging academic content;

(10) significantly elevating the quality of instruction by providing staff in participating schools with substantial opportunities for professional development;

(11) coordinating services under all parts of this subchapter with each other, with other educational services, and, to the extent feasible, with other agencies providing services to youth, children, and families; and

(12) affording parents substantial and meaningful opportunities to participate in the education of their children.

20 U.S.C. § 6301, Pub.L. 89-10, Title I, § 1001.

McKEAGUE, Circuit Judge, concurring.

I concur in affirming dismissal. As explained below, I believe that this case should be dismissed based on justiciability grounds, rather than the merits. One of the Secretary's longstanding positions throughout this lawsuit has been that Plaintiffs' claims are not justiciable, and I agree. The length and complexity of the No Child Left Behind Act of 2001 ("NCLB" or "Act") and the multiple and varied parts of our nation's education machinery affected by the Act warrant our pause and certainly belie Judge Cole's contention that this case is neither particularly complicated nor inherently political.

I

That said, a majority of the court sees it otherwise and has decided to reach the merits, notwithstanding both Plaintiffs' failure to seek administrative remedies and the absence of the States from any involvement in this lawsuit. Plaintiffs and the Secretary have set forth their views, albeit views that do not encompass all of the important and relevant interests. Of those expressed views, I believe that the Secretary has the sounder one on the merits of Plaintiffs' claims, as I explained in my dissenting opinion at the panel stage. Sch. Dist. of Pontiac v. Sec'y, 512 F.3d 252, 273-84 (6th Cir. 2008) (McKeague, J., dissenting) (vacated). Thus, assuming that this dispute is justiciable as a majority of the court has so concluded, I concur in Part II of Judge Sutton's opinion. I write separately, however, to set forth my concerns as to justiciability.

II

A. Justiciability Principles In its most recent term, the Supreme Court stressed the need for federal courts to be "keenly mindful of [their] institutional role" under Article III of the U.S. Constitution. Nw. Austin Mun. Util. Dist. No. One v. Holder, ___ U.S. ___, 129 S.Ct. 2504, 2513, 174 L.Ed.2d 140 (2009). A court should not make a broad, sweeping ruling when a narrower, more limited one will dispose of the case. See id. This court has been mindful of its institutional role in recent cases. See, e.g., Connection Distrib. Co. v. Holder, 557 F.3d 321 (6th Cir. 2009) (en banc); Warshak v. United States, 532 F.3d 521 (6th Cir. 2008) (en banc).

One doctrine used by courts to protect their institutional role is justiciability. In Baker v. Carr, the Supreme Court defined justiciability as the "[a]ppropriateness of the subject matter for judicial consideration." 369 U.S. 186, 198, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). The concept is distinct from jurisdiction, which calls into question whether the cause of action is a case or controversy under Article III or is otherwise "described by any jurisdictional statute." Id. With justiciability, "consideration of the cause is not wholly and immediately foreclosed; rather, the Court's inquiry necessarily proceeds to the point of deciding whether the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded." Id.

Justiciability covers a number of related, but distinct, "constitutional limitations and prudential considerations," including exhaustion, ripeness, and standing. Assiniboine Sioux Tribes of Fort Peck Indian Reservation v. Bd. of Oil Gas Conservation, 792 F.2d 782, 787 (9th Cir. 1986) (discussing Flast v. Cohen, 392 U.S. 83, 97, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968)). Whether a party is required under Federal Rule of Civil Procedure 19 or is otherwise crucial for a full and just adjudication of the case also falls under the justiciability umbrella. Wymbs v. Republican State Executive Comm., 719 F.2d 1072, 1076, 1085-86 n. 34 (11th Cir. 1983).

In accordance with its institutional role, after oral argument the en banc court asked the parties to submit supplemental briefs addressing several questions, including the following:

Are these claims justiciable — specifically, are they ripe for review, see Abbott Labs. v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), have plaintiffs exhausted all administrative remedies, see Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 114 S.Ct. 771, 127 L.Ed.2d 29 (1994), and can the court properly resolve this case without the presence of the relevant States (Michigan, Texas, and Vermont) as parties or at least without knowing the views of the States on the issues presented?

Glancy v. Taubman Ctrs., Inc., 373 F.3d 656, 676 (6th Cir. 2004) (explaining that a court can raise justiciability issues on its own motion). As explored below, exhaustion and the absence of the States are particularly important considerations in this appeal.

B. Exhaustion of Administrative Remedies

It is undisputed that Plaintiffs have not sought administrative review of any of their claims. Once approved, educational plans under the Act are not set in stone. A school district can craft an amendment to its own local plan or propose one for the statewide plan and submit the proposed amendment for review before the state department of education. See 20 U.S.C. §§ 6311(a)(1), (f)(1)(B), 6312(d)(3). The state department of education would review the proposal and, if the department denied it, the school district would have the right to a hearing before the department for a final, written ruling. 20 U.S.C. § 1231b-2(a). If the school district was still dissatisfied, it could appeal the ruling to the Secretary. Id. § 1231b-2(b). The Secretary's decision could then be challenged in federal district court under the Administrative Procedure Act, 5 U.S.C. § 500 et seq. ("APA"), as the Secretary conceded in a similar case, Connecticut v. Spellings, 453 F.Supp.2d 459, 489 (D.Conn. 2006) (" Connecticut I"), as well as in the supplemental brief to this court, Appellee's Supp. Br. at 4.

In its lawsuit against the Secretary, the State of Connecticut has raised several claims, including statutory and Spending-Clause claims similar to those brought by the Plaintiffs here. In Connecticut I, the district court, Hon. Mark R. Kravitz, set forth in detail a number of sound reasons for requiring the State of Connecticut to seek administrative review prior to bringing its lawsuit. 453 F.Supp.2d at 482-91.

Some of those same prudential reasons are present here. For instance, faced with a concrete proposal and specific facts, the school district, the state education department, and the Secretary would have the opportunity to craft a compromise solution that would avoid the need for a lawsuit. See id. at 485; see also Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1247 (D.C. Cir. 2004) (explaining that one of the advantages of administrative review is that the objections of various parties can be worked out without the more dramatic measure of a federal lawsuit). Even if a compromise solution could not be hammered out, the parties' positions would be crystallized, providing a fuller record for judicial review as well as presenting a relatively narrow, particularized claim for relief. Connecticut I, 453 F.Supp.2d at 485. This would give the school districts the opportunity to present their arguments within the context of a proposed amendment to a particular feature of the educational system, rather than as broad, sweeping claims. Moreover, the federal court would have the benefit of the Secretary's reasoning on why the proposed amendment violated federal law. Id. Pursuing a claim at the administrative level first would not be a hardship to school districts, as the Act sets forth a detailed process for entertaining these types of concrete claims and complaints. See supra.

Although the claims in Connecticut I mirror those in this case, there is at least one fundamental difference between the two cases. Here, none of the respective States are involved. Given the central role played by States under the regime created by the Act, this is a somewhat startling omission. Were this a more narrow, concrete challenge by a school district seeking an amendment to a plan and having exhausted administrative review, the absence of the States might not be a concern. However, rather than bring a particularized challenge, Plaintiffs made the strategic decision to bring a sweeping one. Consider, for instance, a couple of the "mandates" challenged in their complaint: "develop[ing] standardized tests aligned with the curriculum standards to measure the progress of public school students in meeting those standards" and "ensuring] that school staff (teachers and paraprofessionals) meet prescribed qualification requirements." JA 31-32. By asking for a declaration that States and schools not be "required to spend non-NCLB funds to comply with the NCLB mandates," Plaintiffs seek the authority to determine whether federal funds are sufficient to cover the costs associated with testing and staff qualifications. The breadth of their claims and of their requested relief makes Plaintiffs' lawsuit a broad challenge to the fundamental tenets of the Act itself, namely, the universal raising of student academic achievement as evidenced by testing and other accountability metrics, rather than a challenge to one or two isolated features of the Act. See Gen. Elec. Co. v. EPA, 360 F.3d 188, 192 (D.C. Cir. 2004). Accordingly, it must be asked whether the absence of the States precludes Plaintiffs from bringing this type of attack at all.

C. Federal Rule of Civil Procedure 19

Whether a person or entity must be involved in a lawsuit naturally brings to mind Federal Rule of Civil Procedure 19, Required Joinder of Parties. Although neither Plaintiffs nor the Secretary have cited to Rule 19 in their briefs, that provides no grounds for ignoring the rule. It is not surprising that Plaintiffs did not raise the argument, given it is one directly contrary to their position. The Secretary did, in fact, argue on several occasions that this case is not justiciable because the States are not involved in any capacity. See, e.g., Appellee's Post-Argument (en banc) Br. at 8-9; Appellee's Final (panel) Br. at 31-33. In fact, during oral argument before the en banc court, counsel for the Secretary argued that this case was "less fit for review" than the Connecticut v. Spellings case because, unlike in that case, no State is a party here. While the Secretary chose not to present the concerns within the framework of Rule 19, the substance of the arguments is more important than the form, especially given Rule 19's focus on the weighing of equitable interests. See infra. Of the three justiciability questions that the court presented to the parties post-argument, the third plainly put both parties on fair notice that the court could consider their responses through the prism of Rule 19. But, even setting aside the Secretary's earlier voiced concerns and this court's notice to the parties, justiciability is first and foremost an institutional concern. A court must jealously guard its institutional role to rule only on disputes that are justiciable, including "whether protection for the right asserted can be judicially molded." Baker, 369 U.S. at 198, 82 S.Ct. 691.

The States of Michigan, Texas, and Vermont have an obvious interest in the subject of this litigation because each has agreed that it and its public schools will accept federal funds under the Act and be bound by its requirements. The educational program established under Title I of the Act provides funding to the States conditioned on their developing statewide plans approved by the Secretary. The commitments made by the States in their plans are binding on themselves as well as their political subdivisions, including school districts. The States are tasked with ensuring that school districts comply with the Act and statewide plans. 20 U.S.C. § 1232c. While the school districts are themselves interested parties, have rights and duties under the Act independent of the States, and are arguably injured by the Secretary's interpretation of the unfunded-mandate provision, the absence of the States as parties is a glaring omission given their central role in the educational regime created by the Act.

It is sometimes the case that, though parties who should be involved in a lawsuit are not, the lawsuit can nonetheless continue forward in their absence. Thus, while it is beyond dispute that the States play a central role in primary and secondary education, it must be determined whether they are required parties to this lawsuit and, if so, whether the lawsuit can nonetheless proceed in their absence.

Rule 19 of the Federal Rules of Civil Procedure sets forth a three-step test for courts to use in determining whether an absent party must be joined or the case dismissed if that party cannot be joined. The first matter to consider is whether the States are required parties under Rule 19(a). If the States are required, then the next matter is whether their joinder is feasible or if a lack of subject-matter or personal jurisdiction makes joinder impossible. Third, if joinder is not possible, the equities must be weighed pursuant to Rule 19(b) to determine if the lawsuit can continue in the States' absence or if the case should be dismissed. Republic of the Philippines v. Pimentel, ___ U.S. ___, 128 S.Ct. 2180, 2188-89, 171 L.Ed.2d 131 (2008); Hooper v. Wolfe, 396 F.3d 744, 747 (6th Cir. 2005).

1. Required Parties

A required party under Rule 19(a) is a party whose absence prevents the court from according "complete relief among existing parties" or a party who "claims an interest relating to the subject of the action" and whose absence "as a practical matter impair[s] or impede[s] the [party's] ability to protect the interest" or "leave[s] an existing party subject to the substantial risk of . . . multiple[] or otherwise inconsistent obligations." Fed.R.Civ.P. 19(a)(1)(A), (B)(i), (ii). In essence, required parties are those "persons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it." 7 Charles Alan Wright, Arthur R. Miller Mary Kay Kane, Federal Practice Procedure § 1604 (3d ed. 2009) (" FPP") (quoting Shields v. Barrow, 58 U.S. (17 How.) 130, 139, 15 L.Ed. 158 (1854)).

Plaintiffs have requested declaratory and injunctive relief for "states and school districts." JA 67. Plaintiffs do not specify whether the term "school districts" means only Plaintiff school districts or rather all school districts across Michigan, Texas, and Vermont or even Michigan, Ohio, Kentucky, Tennessee, Texas, and Vermont. It can be inferred that they intended a broad construction, one not limited to just Plaintiff school districts, given that they have also sought relief for "states" even though neither Michigan, Texas, nor Vermont (nor any other State within the Sixth Circuit) is involved in this case.

In Warshak, this court found that the plaintiffs facial challenge to a provision of the Electronic Communications Privacy Act of 1986, 18 U.S.C. § 2703(d), was not justiciable. 532 F.3d at 525, 534. One of the problems with plaintiffs attack identified by the court stemmed from the fact that relief was granted to persons other than the plaintiff. The court recognized, "`While district courts are not categorically prohibited from granting injunctive relief benefitting an entire class in an individual suit, such broad relief is rarely justified because injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.'" Id. at 531 (quoting Sharpe v. Cureton, 319 F.3d 259, 273 (6th Cir. 2003)). Plaintiffs here have not sought class-action status or fashioned this action as one brought on behalf of another person or entity. How the district court could grant the full relief requested in the complaint is a quandary that has never been explained by Plaintiffs.

It is the case that Rule 19(a)(1)(A) requires that "complete relief be possible only "among existing parties." So, if the court ignores Plaintiffs' request for relief on behalf of nonparty school districts and States, then any relief could be limited to Plaintiff school districts. But, this leads to another quandary relevant to Rule 19(a)(1)(B): what would it mean for the Secretary to be enjoined "from withholding from . . . school districts any federal funds to which they are entitled under the NCLB because of a failure to comply with the mandates of the NCLB that is attributable to a refusal to spend non-NCLB funds to achieve such compliance"? JA 67.

As Plaintiffs stated during oral argument before the panel, "[P]rimary responsibility to educate children rests with the States." Clearly, the States have a strong interest "relating to" the Act in general and in particular whether school districts should have the discretion to opt-out of certain programs and requirements if the federal funds in any given year are somehow deemed insufficient. Fed.R.Civ.P. 19(a)(1)(B). The Act requires that the States wield significant oversight authority vis-à-vis school districts. The federal funds at issue in this lawsuit flow through the States in accordance with their state-wide plans approved by the Secretary and with the districts' own plans approved by the States. Under the statewide plans, every public school is required to make AYP and is included in the State's accountability system. The States must ensure that school districts comply with all of the requirements of the Act, as embodied in their statewide plans. Thus, if Plaintiff school districts were to be granted relief in this case, the States would necessarily fall out of compliance with their own statewide plans in order to accommodate that relief. As a result, the States would have to submit plan amendments to the Secretary seeking either to carve out exceptions for Plaintiff school districts or to make fundamental, wholesale revisions along the lines sought by those school districts, presumably then applying to all school districts within the States. Again, though, without any involvement by the States in this case, the court can only make educated guesses about how the States would react to a favorable outcome for these Plaintiff school districts.

The States play a (if not the) major role in primary and secondary education within their geographic borders. They set educational priorities and direction for all of the public schools. They have a legitimate interest in the funding of education as well as the resources that must be devoted to administering and supervising compliance with their statewide plans. Even if it could be assumed that the States would desire more discretion in how they can spend federal funds, the States' absence impairs their ability to protect the viability and legality of their plans.

It is suggested that Plaintiffs and the Secretary have adequately argued the legal merits of Plaintiffs' claims and, as a result, there can be no risk of prejudice to the States' interests. That, however, is too blinkered a view of this case. Rule 19 is a "creature of equity jurisprudence" and the court must consider not only any legal prejudice, but also any practical prejudice to the States' interests. FPP § 1602 (citation omitted); see also id. § 1604 ("It should be noted that the prejudicial effect of nonjoinder referred to in [Rule 19(a)(1)(B)] may be practical rather than legal in character." (citation omitted)). The court must consider the interests of an absent person, even if that person's legal claim is "technically unaffected." Id. § 1602 (citation omitted).

While the court is not faced with a pure contract dispute, the Supreme Court has drawn on contract principles when resolving Spending-Clause disputes. See, e.g., Pennhurst, 451 U.S. at 17, 101 S.Ct. 1531. It is hornbook law that all parties to a contract are necessary in an action challenging its validity or interpretation. See, e.g., Lomayaktewa v. Hathaway, 520 F.2d 1324, 1325 (9th Cir. 1975) ("No procedural principle is more deeply imbedded in the common law than that, in an action to set aside a lease or a contract, all parties who may be affected by the determination of the action are indispensable."). This lawsuit is not only missing a party, but arguably the most important party. The Secretary cannot force a State to accept federal funds under the Act. The school districts cannot accept federal funds on their own. Only the States can decide in the first instance whether, after reading the offer sheet (i.e., the Act), to accept the funds and associated requirements for the benefit of the State's public-school students. The interests of the States in this context are too myriad for a political subdivision to protect. And to think that the Secretary, the party sitting across the bargaining table, can adequately represent the States' interests in this dispute is simply not realistic.

To illustrate, let's assume for the moment that Plaintiffs are correct. Section 7907(a) releases recipients from requirements of the Act "if, and only to the extent that, federal funding falls short." Appellant's Br. at 22. The federal government cannot require recipients "to comply with the NCLB to the extent that they do not receive sufficient federal funding to do so." Id. at 23-24. As a result, Plaintiff school districts get an injunction permitting them to avoid compliance with a requirement of the Act to the extent that the costs associated with that requirement are somehow deemed too much.

Even if the States agree with Plaintiffs about the meaning of § 7907(a), does it necessarily follow that the States would therefore not be prejudiced by an injunction favoring these school districts? To take one example, consider the State of Michigan. As part of its statutory provisions governing aid to schools, Michigan mandates, "A district or intermediate district shall comply with all applicable reporting requirements specified in state and federal law." MCL § 388.1619(3). It is clear from the explicit mention of the "no child left behind act of 2001" in that same section that the State had in mind the reporting requirements of the Act. See id. § 388.1619(1). Now, Michigan does not make provision for school districts to comply with reporting requirements specified in the Act only to the extent paid for by federal funds. If the Pontiac School District determines that it will not comply with the reporting requirements of the Act and nails the court's injunction on the doors of the Michigan Capitol building, is it really true that the legitimate interests of the State of Michigan have not been prejudiced or that those interests have been adequately protected by the Secretary?

Staying with the State of Michigan, the State requires all school districts to administer the State's merit examination to students in particular grades. Under state law, the merit examination must meet "all of the . . . requirements of the no child left behind act of 2001." MCL § 388.1704b(3)(d)( ii); see also id. § 388.1704b(2)(d). There is no provision in state law providing that the examination administered by a school district must satisfy the requirements of the Act only if that district deems that the amount of federal funds it receives are sufficient to cover certain costs. One of the requirements of the Act is that all students throughout the state be tested — in Michigan, this would include students of Pontiac School District. Yet, armed with an injunction from this court, could Pontiac School District refuse to participate in Michigan's merits-examination system even though the State otherwise mandates that the system comply with the Act's requirements?

Furthermore, one issue that has come up repeatedly in this case is how to determine whether a particular requirement has been "underfunded." This is an issue that might have benefitted from some development at the administrative level in the context of a more narrow, concrete complaint or proposed plan amendment. Be that as it may, a related issue central to the practical operation of the Act under Plaintiffs' interpretation is this: which entity should have final authority to make the determination that a particular program or requirement is underfunded? The particular school district? The Secretary? Or the State? School districts are, after all, political subdivisions of the States. School districts are subrecipients of federal funds under the Act, while States are primary recipients of the funds. It seems at least plausible that between the two, the States would prefer that they have final authority to determine whether any program or requirement is underfunded. On the flip side, although the Act represents an unprecedented extension of federal policy into primary and secondary public education, the States remain the central players in public education by setting priorities, direction, and spending. It seems at least plausible that the States would prefer that they, rather than the Secretary, have final authority to make the determination. This is certainly an important interest of the States related to the subject matter of this case and not an issue anyone could seriously argue has been adequately addressed on behalf of the States by Plaintiffs or the Secretary.

It must be acknowledged that Plaintiffs and the Secretary have presented both of their respective positions with vigor. However, "interests" encompass more than just legal positions. The States are separate players in our nation's public-education system, or, as Plaintiffs' counsel described during oral argument, the "three-way deal" of public education. In short, it is clear that neither Plaintiffs nor the Secretary fully share or represent the interests of the States, regardless of the outcome of an interpretation of § 7907(a). Thus, the States of Michigan, Vermont, and Texas should be considered required parties under Rule 19(a)(1)(B). 2. Feasibility of Joinder

The next matter to consider is whether joinder is feasible. As a sovereign, a State cannot be required by a federal court to join a lawsuit as a party except under certain circumstances not present here. Grinter v. Knight, 532 F.3d 567, 572 (6th Cir. 2008) ("The Eleventh Amendment bars suits brought in federal court against a state and its agencies unless the state has waived its sovereign immunity or consented to be sued in federal court."); In re Hood, 319 F.3d 755, 762 (6th Cir. 2003) (explaining that Congress can sometimes abrogate a State's sovereign immunity). Because the States have not voluntarily sought to join this lawsuit, and the court cannot require that they join, the States' compulsory joinder under Rule 19 is not feasible.

3. Whether Dismissal is Proper

At the final step, Rule 19(b) requires a weighing of the equities. As this court explained in Glancy:

Courts are to consider at least four factors in assessing whether the action should be dismissed, including (but not limited to), first, to what extent a judgment rendered in the person's absence might be prejudicial to the person . . .; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; [and] fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

373 F.3d at 672 (internal quotation marks omitted). When, however, the absent party is a sovereign, the weighing of the equities is more circumscribed. Kickapoo Tribe v. Babbitt, 43 F.3d 1491, 1498 (D.C. Cir. 1995). This is "because immunity may be viewed as one of those interests compelling by themselves." Id. (internal quotation marks omitted); cf. Republic of the Philippines, 128 S.Ct. at 2190 (within the Rule 19(b) context, discussing the importance of the "[c]omity and dignity interests" of a foreign sovereign).

As noted above, declaratory or injunctive relief in favor of Plaintiff school districts will undoubtedly call into question the viability and legality of the current statewide plans. Although the States will not strictly speaking be bound by the judgment, in practice the judgment will undoubtedly impact the States' plans. See Provident Tradesmens Bank Trust Co. v. Patterson, 390 U.S. 102, 110, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968) (stating that when considering the "interest of the outsider whom it would have been desirable to join," the court should consider the "practical" impact of a judgment on that interest). It is certainly plausible that Plaintiffs' position — that recipients should not have to spend their own money to pay for things mandated by the Act but not fully paid for by the federal government — would be supported by the States. In fact, the State of Vermont has enacted legislation to express that very sentiment. 2005, Adj. Sess., No. 182, § 35 ("[N]either the State nor any subdivision thereof shall be required to spend any funds or incur any costs not paid for under the Act in order to comply with the Act."). Taking a step back, though, it might very well be that some of the state officials understood that when they agreed to accept federal funds under the Act, they also agreed to use nonfederal funds to help pay for new programs, testing, etc. These officials might also have understood that were the Act read to mean what Plaintiffs contend it means, it is possible (maybe even probable) that Congress would rewrite the law with even less favorable conditions than the current version. Finally, it is also conceivable that state officials understood that meaningful improvement in the educational levels of their most disadvantaged students should not be left to unilateral decisions by local officials who might decide to forgo testing and assessment only after concluding that their students were not in fact making the improvement required by the Act.

The other three enumerated factors clearly weigh in favor of dismissal. Given the sweeping nature of Plaintiffs' claims, there is little room to fashion the relief in a way that would lessen the prejudice to the States (and their disadvantaged students) or otherwise lessen the impact on their plans. As to whether the relief that could be granted would be adequate, the court must consider this from the public's interest "in settling disputes by wholes" rather than from Plaintiffs' particular interest in the lawsuit. Provident, 390 U.S. at 111, 88 S.Ct. 733 ("We read the Rule's third criterion, whether the judgment issued in the absence of the nonjoined person will be `adequate,' to refer to this public stake in settling disputes by wholes, whenever possible, for clearly the plaintiff, who himself chose both the forum and the parties defendant, will not be heard to complain about the sufficiency of the relief obtainable against them."). The relief that could be granted to Plaintiff school districts would be of little practical value by itself; subsequent changes to the statewide plans would have to be made. The fashioning of these statewide plans are complex and require considerable negotiation; they are not merely ministerial in nature. As Governor Edward G. Rendell (Pa.) explained in his amicus brief, "Educational programming and funding questions are not simply a matter of parroting what Congress has set forth in NCLB." Amicus Br. at 16. Thus, for the school districts to get any meaningful relief, they would need the States to develop changes to their statewide plans, propose those changes to the Secretary, and negotiate with the Secretary over the appropriateness of those proposals.

As to the fourth factor, Plaintiff school districts have other remedies available to them. As discussed above, the Act allows a school district to propose a plan amendment and pursue administrative and judicial remedies pursuant to 20 U.S.C. § 1231b-2 and the APA. Nothing in this justiciability analysis would preclude Plaintiff school districts from taking this route.

While this case was filed back in 2005, it is quite young in litigation-terms. The lawsuit is still in its early stages — no answer has been filed, no discovery has been taken, and no trial has occurred. Thus, this is not the case where one party or the court waited until the eleventh hour to raise the absence of the States as a possible ground for dismissal. See Boone v. Warren, 166 Fed.Appx. 818, 819-20 (6th Cir. 2006) (in weighing the equities, finding that the defendant's failure to raise the Rule 19 issue until after the jury trial was completed and judgment entered for the plaintiff weighed against dismissal). Likewise, while the failure to intervene can weigh against dismissal in the normal course, such failure is not a consideration "where intervention would require the absent party to waive sovereign immunity." Kickapoo Tribe, 43 F.3d at 1498.

It is also true that from the standpoint of efficiency, the court might better just plow ahead regardless of these justiciability concerns, reach the merits of Plaintiffs' legal claims, and let the chips fall where they may, as a majority of my colleagues would do. But, as this court recognized in Warshak, judicial efficiency must give way in the face of the type of intractable justiciability problems presented here. 532 F.3d at 533. Justiciability doctrines, such as ripeness in Warshak and the absence of a party here, "like all limitations on the judicial Power, prevent[] us from doing today what can be done tomorrow." Id. (internal quotation marks and brackets omitted).

Accordingly, regardless of the merits of the parties' positions, this lawsuit should be dismissed because of the absence of the States of Michigan, Texas, and Vermont. It is true, of course, that in some other cases a political subdivision like a school district has defended against a claim by raising Spending-Clause arguments similar to those of Plaintiffs', even though the respective States were not parties. See, e.g., Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 127 S.Ct. 1994, 167 L.Ed.2d 904 (2007); Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 301, 126 S.Ct. 2455, 165 L.Ed.2d 526 (2006); Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005). The Court in those cases issued holdings that were not only binding on the parties, but also, for all practical purposes, binding as precedent on the respective States. Yet, those and other similar cases are distinguishable on several grounds. In those cases, the issue of whether the lawsuit should be dismissed in the absence of the State was not raised and, because the issue is not a jurisdictional one, the Court was not required to reach the matter on its own motion. See FPP § 1603 ("Even if the court is mistaken in its decision to proceed in the absence of an interested person, it does not by that token deprive itself of the power to adjudicate as between the parties already before it through proper service of process." (quoting Fed.R.Civ.P. 19 advisory committee's notes (1966))). In at least one of the cases, moreover, the respective State did participate in the proceeding as amicus curiae. See Jackson, 544 U.S. at 169, 125 S.Ct. 1497 (listing the State of Alabama as amicus curiae).

More importantly, the controversies in those and similar cases were narrower in scope than those presented in this lawsuit. Winkelman resolved whether parents could pursue claims under the Individuals with Disabilities Education Act ("IDEA") on their own without the assistance of legal counsel. 550 U.S. at 535, 127 S.Ct. 1994. The Court specifically noted that its ruling did "not impose any substantive condition or obligation on States they would not otherwise be required by law to observe." Id. at 534, 127 S.Ct. 1994. In Arlington School District, the Court considered whether expert fees were "costs" under the IDEA and thereby recoverable under the act's fee-shifting provision. 548 U.S. at 304, 126 S.Ct. 2455. Even Jackson, arguably the most far-reaching of the decisions listed above, involved the rather isolated question of whether recipients of federal funds could be held liable for intentional sex discrimination in the form of retaliation under Title IX. 544 U.S. at 183-84, 125 S.Ct. 1497.

In contrast, Plaintiffs here pursue a challenge to the fundamental tenets of the Act itself. It cannot be seriously questioned that the Act is markedly different under the parties' respective views. According to Plaintiffs' view, after the federal government appropriates funds, after the Department of Education sets its priorities, after the States set their own priorities and spending, then someone gets to decide whether a particular program or requirement is or becomes "underfunded" and, if so, then the district need not spend any funds on that program or requirement. According to the Secretary's view, though, the federal government offers the States an all-or-nothing proposition — accept the funds and all of the duties, or go it alone without the funds or any of the duties. Every "shall" means "may," every command simply an option, funding permitting — versus — "shall" means "shall" regardless of funding. It is hard to fathom a more divergent set of views of how a federal-funding statute is supposed to work.

This is not a case brought by a recipient or other interested party involving a concrete proposal within a specific factual context. As explained earlier, Plaintiffs could have brought that type of claim after first pursuing their administrative remedies. Having decided to go a different route, they should be confronted with the question of whether they can travel that route alone. I believe that they cannot.

D. Crucial for a Fair and Just Resolution

Even if the States were not "required" parties under Rule 19(a), dismissal of this lawsuit without reaching the merits would still be proper. A court can dismiss a case for a myriad of prudential reasons, including the absence of a party who is crucial to a fair and just resolution of the dispute but who would not fit squarely within Rule 19's framework. Abbott Labs. v. Gardner, 387 U.S. 136, 155, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) ("And courts may even refuse declaratory relief for the nonjoinder of interested parties who are not, technically speaking, indispensible."); Emery v. Adams, 179 F.2d 586, 589 (6th Cir. 1950) ("Even if [the corporation] were not an indispensible party, the court could proceed, in any event against Adams, individually, in its discretion, Rule 19, Federal Rules of Civil Procedure, 28 U.S.C.A., and it was no abuse of judicial discretion to decline to do so.").

The States' interests in the subject of this lawsuit, as well as the equitable factors weighing in favor of dismissal under Rule 19(b) set forth above, likewise weigh in favor of dismissal under general prudential principles. Furthermore, while parents are not required parties under Rule 19(a), it must be acknowledged that they have little voice in the current lawsuit even though they have arguably the second most important interest in the outcome, next to their children's own interest. While parents are consulted when a school district develops a local plan, 20 U.S.C. § 6312(d)(1), the scope of that plan is narrower than a State's own plan. Were the States involved, the broader interests embodied in the statewide plans would be represented. Id. § 6311(a)(1).

It is also undisputed that, whatever the merits of the parties' respective arguments, the Act is a lengthy, intricate statutory scheme. It is much more likely that the court would arrive at the correct resolution were Plaintiffs to pursue a claim involving a proposed amendment to a plan that could be considered first at the administrative level where state and federal education officials could bring their professional expertise to bear. Alternatively, faced with a broad claim aimed directly at the meaning and operation of the Act, it can hardly be doubted that the court's decision would be aided by input from the States.

Apart from these concerns, the involvement of the school districts from Vermont and Texas poses its own unique justiciability concerns. The State of Connecticut has brought a similar case against the Secretary raising, inter alia, the same two legal claims at issue in the present case: (a) the unfunded mandate provision prohibits school districts and States from spending nonfederal funds on activities required under the Act but not fully paid for by the federal government; and (b) the unfunded mandate provision violates the Spending Clause. Connecticut I, 453 F.Supp.2d at 480, 491. The case is now on appeal before the Second Circuit. Connecticut v. Duncan, No. 08-2437 (2d Cir.).

Assume for a moment that the Second Circuit were to find in favor of the Secretary on the merits, but this court were to find in favor of Plaintiffs. As noted above, Plaintiffs have requested declaratory and injunctive relief on behalf of the States and school districts. Yet, the State of Vermont is within the geographic jurisdiction of the Second Circuit. Although not a party to the Connecticut v. Spellings lawsuit, a decision by the Second Circuit in favor of the Secretary would surely reverberate throughout that circuit and embolden the Secretary to continue applying his interpretation of the unfunded-mandate provision to the other States within that circuit. Thus, the State of Vermont could be faced with deciding how to reconcile contrary decisions from two federal circuits, one (the Sixth Circuit) in which a political subdivision of the State is a party to the lawsuit and the other (the Second Circuit) in which the State is geographically encompassed.

Again, though, it is possible that any relief in the present lawsuit could be strictly limited to Plaintiff school districts — i.e., they could be granted greater discretion in how they spend federal funds under the Act without also affording similar relief to the three States or any other school district within those States. Doing so would, at least at first blush, appear to avoid thrusting the State of Vermont into an intercircuit conflict. Yet, now consider the position in which the State of Vermont would find itself. Several of its school districts could unilaterally decide to forgo the programs and requirements set forth in the applicable plans and the Act, yet the remaining school districts that are nonparties to this lawsuit as well as the State of Vermont itself would be required to comply with the mandates of the Act, as interpreted by the Secretary. And, under this scenario, the Secretary's interpretation would have the backing of the Second Circuit. Were this lawsuit to go forward and were Plaintiff school districts to be awarded relief, the State of Vermont's education system would, in effect, be balkanized by conflicting circuit decisions. Moreover, even without a similar lawsuit winding through the Fifth Circuit, the State of Texas would be in the same situation as the State of Vermont because the State of Texas is currently subject to the Secretary's interpretation of the Act. By granting relief to the Vermont and Texas school districts, the court would be requiring that those States treat some of its political subdivisions in one manner, while at the same time they would be required by the Secretary to treat other parallel subdivisions in a diametrically different manner. This balkanization of the States' educational systems undermines the dignity interest of the sovereign States. Cf. Alden v. Maine, 527 U.S. 706, 715, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999) (The States "are not relegated to the role of mere provinces or political corporations, but retain the dignity, though not the full authority, of sovereignty.").

Moreover, this balkanization could have serious repercussions on the delivery of education services in the affected districts. Under Plaintiffs' view of the Act, Congress relieved them from complying with the Act's requirements whenever the cost of compliance exceeds federal appropriations. However, States and school districts ultimately control the costs of compliance, not the federal government. Thus, a Plaintiff school district itself would determine whether, in its opinion, a particular program was being sufficiently funded by the federal government. The district could then decide to spend its funds on something else because, in the district's judgment, the federal government has not fully funded that program. The parents of economically disadvantaged students, of course, have the least opportunity to choose another school for their children, a school that would fulfill the requirements of the Act. Given that the Act's programs and requirements are specifically intended to help the nation's most disadvantaged students, those left-behind students are precisely the ones to whom the Act attempts to bring long-neglected relief but who would be hurt most by that district's decision. Permitting school districts to pick-and-choose which programs they will comply with and which they will not would, as the NAACP predicted in this case, "sound the death knell for NCLB." Amicus Br. at 17.

III

Appellate courts are often required to ignore the proverbial "elephant in the room." Sometimes a party will not bring a particular claim that appears to the court to be a viable one or the party will waive an issue by failing to preserve it below. Appellate courts are bound in almost all cases to consider only the administrative or lower court record, so sometimes important factual developments can have no impact on the case's resolution. Because the rules and limitations of appellate review are fairly well established, justice is still meted out even when an otherwise viable claim, issue, or fact has to be ignored by the reviewing court.

On occasion, however, there are just too many elephants in the room to ignore. Plaintiff school districts argue that the Secretary's interpretation and implementation of the provision violates the plain meaning of the Act as well as the U.S. Constitution's Spending Clause. While the merits of their claims raise interesting questions about the role of the various levels of government in primary and secondary education, the interpretation of a lengthy and complex statute, and the role of legislative history in cases like this, the absence of any of the States as parties creates serious justiciability concerns. Moreover, the involvement of the Texas and Vermont school districts raises serious intercircuit and intrastate problems — problems that are avoided only because the court has decided, in essence, to maintain the status quo with its judgment today. Together these realities constitute a parade of elephants that the court should not ignore or dismiss so breezily.

Accordingly, I would find Plaintiffs' claims, as presented, nonjusticiable. Inasmuch as a majority of my colleagues have seen fit to reach the merits of Plaintiffs' claims, however, I concur in the analysis set forth in Part II of Judge Sutton's opinion and concur in the judgment affirming dismissal of the claims.

JULIA SMITH GIBBONS, Circuit Judge, concurring in part and dissenting in part.

My colleagues' opinions are articulate and carefully-reasoned, but I find myself unable to join any of them in full. I concur in Judge Cole's analysis of justiciability and standing and his thoughts about Federal Rule of Civil Procedure 19. And, although Judge Sutton questions the plausibility of any of the possible interpretations of 20 U.S.C. § 7907(a) that Judge Cole discusses, I find much of Judge Cole's analysis persuasive. On the other hand, Judge Sutton's opinion correctly highlights the position of the Spending Clause analysis as a rule of statutory interpretation and logically argues that states enter the bargain offered to them under the No Child Left Behind Act ("NCLB") with the knowledge that their obligations under the statute must inevitably require use of funds in addition to the federal funds they receive. Judge Sutton's view has the strength of common sense, without much scrutiny of the precise language at issue, while Judge Cole's view carefully examines the language of the statute but overlooks the practical implications of the overall context of the NCLB scheme. While I fully appreciate that there are arguments about which approach is legally correct here, from my perspective, the difficulty in choosing between them may well stem from the procedural posture in which we find ourselves.

This case came to us on an appeal from the district court's granting of defendants' motion under Federal Rule of Procedure 12(b)(6). Plaintiffs' complaint is fifty-nine pages long. After its description of the parties, it references the statutory language on which plaintiffs rely, cites two statements by former Secretary of Education Rod Paige (one from the publication Roll Call and one from a speech) that plaintiffs claim support their position, sets forth the position of the Department of Education contrary to plaintiffs' interpretation, and describes in great detail the extent to which NCLB funding has been insufficient for compliance with the statute and the nature of the requirements imposed on states and school districts by the statute. (Compl. at 11, 12, 13, 14-22.) Plaintiffs seek declaratory and injunctive relief based upon the language contained in 20 U.S.C. § 7907(a) of NCLB. They have two allegations: 1) the Secretary of Education is violating this provision by requiring school districts to expend their own funds to comply with NCLB's requirements; and 2) the failure to honor the language of the provision violates the Spending Clause of the United States Constitution. (Compl. at 4.)

Plaintiffs therefore ask for resolution of two different questions: First, what does the provision mean; and, second, if it means that states must expend their own funds to comply with NCLB, whether Congress unambiguously informed the states of this obligation. This bifurcation muddles the fact that the Spending Clause analysis is itself a canon of interpretation. Pennhurst State Sch. Hosp. v. Halderman, 451 U.S. 1, 15, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981). Thus, in looking to Congress's authority under the Spending Clause, courts are attempting to discern the meaning of the statute, in particular the contours of states' obligations. Id. Relying on the Spending Clause's restrictions for guidance in statutory interpretation, the Supreme Court said that it "must view the [statute] from the perspective of a state official who is engaged in the process of deciding whether the State should accept [] funds and the obligations that go with those funds." Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296, 126 S.Ct. 2455, 165 L.Ed.2d 526 (2006). Viewing the statutory language from the state officials' perspective, we are thus asked to determine what the statute means. Id. If the statutory language does not unambiguously impose obligations on the states, the Spending Clause dictates that the statute cannot be interpreted to require those obligations. In other words, the Spending Clause analysis boils down to rudimentary statutory interpretation: The statute cannot mean what it does not say.

In a sense, we are in an awkward position between two arguably meritorious opinions. First, given the overall statutory scheme that Judge Sutton describes (Op. of Sutton, J. at 285-92), NCLB does seem to require states to spend their own funds to comply with the statute's requirements. Secondly, however, the language of § 7907(a) is not clear, as Judge Cole demonstrates (Op. of Cole, J. at 271-76), and may not have provided states with clear notice — or, at the very least, plaintiffs have stated a claim to that effect. The correct answer lies in the interplay between these two views. The question is whether § 7907(a) injects so much ambiguity as to cast doubt on the meaning of the rest of the statute. Does it render the statute so unclear as to deprive states of notice of their funding obligations?

Judge Cole's opinion ably sets out the reasons that plaintiffs' allegations are sufficient to state a claim. And Judge Sutton ably gives the contrary view. I conclude that plaintiffs have stated a claim, but I differ from both Judge Cole and Judge Sutton in concluding that today is not the time for answering the question of whether a state official would clearly understand that expenditures of state funds are required when necessary to comply with NCLB's requirements. I would stop short of giving that answer and remand the case for further proceedings.

In view of the varying opinions of my colleagues in this case, none of which find the procedural posture problematic, one may reasonably question just what additional record the district court could consider on remand that might assist in the thorny task of statutory interpretation. A couple of possibilities occur to me — this language's interpretation in other contexts and evidence of the actual understanding of the states at the outset. There may well be others.

Although the motion to dismiss considers only the allegations of the complaint, the parties' briefs in the district court and here include much discussion of legislative history. Judge Cole steers clear of reliance on legislative history, focusing on the statutory language. And Judge Sutton discounts the role of legislative history in Spending Clause analysis.

Even assuming there is no useful legislative history of this statute appropriate for consideration, an assumption in which I lack entire confidence, there may be other legislative materials relevant to notice that the court could consider. The language at issue is hardly unique and is found in a number of statutes other than NCLB. See, e.g., Serve America Act of 2009, 42 U.S.C. § 12645f(a); School-To-Work Opportunities Act of 1994, 20 U.S.C. § 6234. The interpretation of § 7907 might more easily be resolved by guidance from its interpretation in these other statutes, particularly if such language has a generally understood meaning.

Apart from legislative materials, another possibility for help exists. There is nothing in the complaint about how the states in which the school districts are located actually interpreted their funding obligations under NCLB at its inception. This suit was filed several years after the enactment of NCLB and, as Judge McKeague's opinion highlights, the states are not parties. Surely, the states' actual understanding of their obligations from the outset is highly pertinent to whether they had notice. Judge Sutton finds relevant the notice given to plaintiffs by the Department of Education's interpretation of NCLB subsequent to its passage. Although this notice is certainly relevant to the equities of a situation in which states want the benefit of federal funds without assuming the obligations that accompany them, it would seem much more pertinent to the notice issue to know what state officials thought from the outset. See Arlington, 548 U.S. at 296, 126 S.Ct. 2455. Particularly illuminating is not only what the relevant state officials understood the language to mean when they agreed to the terms of NCLB, but also what they understood the identical language in the School-to-Work Act to mean when agreeing to its terms in 1994.

I conclude that the allegations of the plaintiffs' complaint are at least sufficient to state a claim. Consequently, I would reverse the grant of the motion to dismiss and remand for further proceedings. Doubtless, these further proceedings will include more motions and, we may hope, more help in interpreting the statute when a court is next called upon to determine the notice issue.