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Published in Print: April 3, 2002, as Agency: ESEA Timeline Threatened by Lawsuit

Agency: ESEA Timeline Threatened by Lawsuit

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The Bush administration argued last week that a pending lawsuit against the Department of Education, if the plaintiffs win, could push back time-sensitive regulations on standards and testing by at least two months.

Government lawyers made that point, and a host of others, in a brief countering legal action by four advocacy groups over the composition of a federally appointed rulemaking panel. The plaintiffs maintain that the department failed to adequately represent parents and students on the negotiating committee, which was tasked with reaching consensus on federal rules stemming from the "No Child Left Behind" Act of 2001.

The dispute appears to enter new legal terrain, as experts say no lawsuit has ever been filed over the makeup of a negotiated- rulemaking panel.

The committee, which completed work on March 20 after extensive talks spanning 10 days, included 19 educators and state and local education officials, but just two members speaking exclusively for parents. No participant was identified as solely representing the viewpoint of students.

In writing the new law, which reauthorized the Elementary and Secondary Education Act, Congress instructed the department to select participants "in such numbers as will provide an equitable balance between representatives of parents and students and representatives of educators and education officials."

The plaintiffs—the Washington-based Center for Law and Education, National Coalition for the Homeless, and National Law Center on Homelessness and Poverty and the Chicago-based group Designs for Change—said the department should be compelled to put together a new rulemaking panel that better represents parents and students.

But federal officials, who argue that many of the participants wore multiple hats and could also speak for parents and students, said the legal action is unjustified and would disrupt the department's tight timeline to issue regulations.

"Because the amendments to Title I [of the new law] are sweeping and complex, and because certain of the ... requirements must be implemented by the beginning of the 2002-03 school year, the states need advance time to plan and organize for these requirements," the government lawyers wrote in documents filed March 26 in the U.S. District Court for the District of Columbia.

A statement submitted with their papers from Joseph F. Johnson Jr., the department's director of compensatory education programs, estimated that convening a new panel would delay release of the new rules by at least two months beyond the law's July deadline. In fact, Mr. Johnson suggested, if the agency were prevented from proceeding with the regulations based on the panel's recent work, it would need to move forward on an "emergency basis," as allowed by the law, and forgo any further negotiated rulemaking.

Tipping the Scale?

The lawsuit arose after several advocacy groups complained about the makeup of the negotiating panel. When the department refused to amend its list of participants, they sued. A federal judge rejected the plaintiffs' request to halt the proceedings, but a court decision on the merits could make those negotiations null and void. ("Groups Challenge Makeup of Rulemaking Panel," March 20, 2002.) Both sides in the case will have two opportunities to file papers, with a final deadline of April 8 for the department's second submission. The plaintiffs have also requested a hearing, but as of last week the court had not indicated whether that would take place.

While the department declined to add more parent or student representatives last month, it told the organizations that complained that they could petition the full negotiating panel to join. The panel, however, voted down those requests.

The plaintiffs then decided to push forward with their lawsuit to try to compel changes in the mix at the negotiating table.

"Simply put, there is no scale or system of measurement that supports the [department's] contention that 19 equitably balances with two—such a decision is an abuse of discretion and is arbitrary and capricious," the plaintiffs charge in court papers filed March 20. "The [department] has put its thumb on the scale to make sure that the negotiating committee is weighted towards the interest of the educators and the education bureaucrats who are supposed to be regulated by these rules."

Paul Weckstein, the co-director of the Center for Law and Education, which has criticized the draft regulations for handing states what it believes is too much flexibility, said the lawsuit is not meant to criticize the panelists.

"We're not questioning the sincerity or the dedication of the educators and education officials," he said. "But there is a distinct difference between being a representative of those who are regulated, and being a representative of those who are beneficiaries."

Federal Argument

For its part, the federal government argues on multiple grounds against the case. It says the makeup of a negotiated rulemaking panel is not subject to judicial review and that the plaintiffs lack legal standing and cannot demonstrate a substantial likelihood of success on the merits of their case.

The government also said that, because the negotiating panel used a consensus process, any single member could have voted against the final plan.

Christine O. Wolfe, a counselor to Deputy Secretary of Education William D. Hansen, explained in a statement to the court how the department went about selecting participants.

"We favored nominees who reflected multiple perspectives," she said. In addition to the two parent participants, the department selected five others—three state officials, a teacher, and a private school administrator—to speak for parents and students.

"It was our considered judgment that the experience of these individuals as teachers or holding other educational positions did not disqualify them from speaking to the needs of these students on their behalf," Ms. Wolfe said.

For example, she suggested that panelist Arturo Abarca, a parent of two children and a bilingual education teacher in a Los Angeles public elementary school, is well qualified to represent the interests of students, particularly Latino, limited English proficient, and at-risk students.

The government's lawyers also emphasized that the panel is essentially an advisory board that does not legally bind the agency's final decisions on the regulations.

Past Grievances

The dispute is not the first time the department has stirred the pot in picking participants for a rulemaking committee. Mr. Weckstein notes that it was frustration with the same process for the last ESEA reauthorization in 1994, under the Clinton administration, that prompted him and others to urge Congress this time to add language providing more specifics on the panel's makeup.

"This language, however, was simply ignored by the Department of Education—in fact the balance between the two groups is actually worse than the unbalanced numbers in the negotiation for the regulations on the 1994 act," he said in a written statement to the court. That panel included four parents and 17 who were either educators, state education officials, or local education officials.

Meanwhile, earlier this year, the department upset some in the higher education community when it formed a negotiated- rulemaking panel on student-aid regulations. In a Jan. 10 letter to the department, the American Council on Education, a broad-based higher education group in Washington, complained that some key stakeholders were excluded from the committee. The letter also suggested that agency officials assigned several individuals to serve as negotiators on behalf of a constituency the ACE maintained they lack authority to represent.

Judith A. Winston, who served as the Education Department's general counsel during the Clinton administration, suggested that the plaintiffs in the ESEA case likely face an uphill battle in court. But, having reviewed their initial court papers, she said they made some compelling points.

"I just can't figure out why the department would have so skewed the committee and why they wouldn't have been receptive to accepting a petition" to add members, said Ms. Winston, now a professor at American University's Washington College of Law. "One, it seems to me, could conclude that this seems to be an abuse of discretion."

She added that there is irony in a federal agency ending up in court over the dispute.

"Part of the purpose of a negotiated rulemaking is to try to avoid a circumstance where the affected groups end up suing," she said. "It's really designed to cut down on litigation."

But Jeff Simering, the legislative director of the Washington- based Council of the Great City Schools, was unsympathetic to the plaintiffs' case.

"I think it's a whole bunch of sour grapes," said Mr. Simering, who served as an adviser to a panelist from the Boston public schools. "Frankly, I'm not sure if they even represent the viewpoint of parents and students. I think they represent their own school reform interests."

Tasha Tillman, one of the two parent representatives at the table, was initially upset that other parent and student representatives were not added, but ultimately had a change of heart.

"I did change my views after the negotiations and hearing what everyone had to say," she said. "I felt like there were people there representing the children."

She added, "I think a lawsuit against the department is frivolous."

However, the second parent representative at the table, Minnie Pearce of Detroit, filed a court declaration in support of the plaintiffs' case.

Donald R. Moore

Donald R. Moore, the executive director of Designs for Change, a Chicago education advocacy group that is a party to the lawsuit and often finds itself disagreeing with school officials in its hometown, said that the dispute was an inauspicious beginning for the new education law.

"If they start the process by immediately shutting parents out, that's hardly a recipe for creating the foundation for public confidence," Mr. Moore said. "Nor is it a recipe for creating a set of rules that will really take the interests of poor children fully into account."

Vol. 21, Issue 29, Pages 30,33

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