President George W. Bush's education initiative, No Child Left Behind, was designed around an admirable goal -- "to make sure all students, including those who are disadvantaged, achieve academic proficiency."

Toward that end, states have been charged with reaching certain benchmark goals. If they fail, they are required to "provide supplemental services, such as free tutoring or after-school assistance." If an individual school is still not making "adequate yearly progress" after five years, administrators are supposed to "make dramatic changes to the way the school is run."

Hard to quarrel with that, except that the federal government never provided adequate funds to get it done.

Nine school districts sued in federal court in 2005, arguing that government enforcement of the act was unconstitutional and illegal, since it requires schools to do things without providing the money. The districts lost in U.S. District Court in Detroit, but the ruling was reversed by a three-judge panel of the 6th U.S. Circuit Court of Appeals in Cincinnati.

On Wednesday, the case was reargued before all 16 judges on the court. The schools' lead attorney noted that the law stipulates that "nothing in this Act shall be construed to mandate a state or any subdivision to spend any funds or incur any costs not paid for under this Act." The Bush administration's unpersuasive response was the passage means only that no one can add requirements to No Child Left Behind and expect states to pay for it.

It seems certain that the case will be decided ultimately by the U.S. Supreme Court, which, we hope, will agree with the school districts.

The entire issue may be moot, however, thanks to a Chicago lawyer who said NCLB was just an empty slogan. "Don't come up with a law called No Child Left Behind and then leave the money behind," he has said repeatedly. In little over a month, that lawyer will become president of the United States. Let's hope he will opt for an education policy based on an ancient ideology, one known as common sense.