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Published in Print: June 19, 2002, as Judge Dismisses Suit Challenging Appointees to Rulemaking Panel

Judge Dismisses Suit Challenging Appointees to Rulemaking Panel

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A federal judge has dismissed legal action that would have forced the Department of Education to delay issuing new regulations on standards and testing until it reconfigured a rulemaking panel.

Four advocacy groups sued the department earlier this year, charging that in choosing panelists, agency officials had failed to adequately represent parents and students. ("Agency: ESEA Timeline Threatened by Lawsuit," April 3, 2002.)

The committee had the task of reaching consensus on federal rules stemming from the "No Child Left Behind" Act of 2001.

In dismissing the case, Judge John D. Bates of the U.S. District Court in Washington agreed with government lawyers who said the selection process for the panel was not subject to judicial review.

But he also said that even if it were, he did not find the plaintiffs' complaints persuasive. In separately rejecting their motion for a preliminary injunction to halt the rulemaking process, he defended the government's actions.

"It is apparent that [the Department of] Education arrived at its selections by applying its expertise and considering relevant factors," the judge wrote in the May 22 opinion. "It does not appear that [the agency's] decision was so erroneous as to allow the court to second-guess that decision."

Judge Bates also agreed with government lawyers who said the lawsuit would make the agency miss a July 8 statutory deadline for issuing final rules.

"This is a big victory for the department," said Daniel Langan, a spokesman for the agency. "We aspired to make sure that all voices were heard throughout this [rulemaking] process."

"Clearly, we're not happy with the ruling," said Paul Weckstein, a co-director of the Washington-based Center for Law and Education here, one of the plaintiffs in the case. Mr. Weckstein said last week that the plaintiffs were considering an appeal, but had made no decisions.

An Equitable Balance?

The negotiating committee completed its work in March after extensive talks spanning 10 days. The 24-member panel included 19 educators and state and local education officials, a business representative, two Education Department officials, and two members speaking exclusively for parents.

The new law, which reauthorized the Elementary and Secondary Education Act, states that the Education Department should select participants in "such numbers as will provide an equitable balance between representatives of parents and students and representatives of educators and education officials."

In the lawsuit, the plaintiffs argued that the department should be required to put together a new negotiating committee that better represented parents and students.

When the panel first convened, the department listed seven participants as representing parents and students. It included the two parent participants, plus three state officials, a teacher, and a private school administrator. The plaintiffs maintained that educators and education officials could not adequately speak for parents and students, since they work for entities that are being regulated.

Vol. 21, Issue 41, Page 27

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