Federal File

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Not So Fast

The Bush administration may not be inclined to heed advice from teachers' unions very often, but it has backed off one proposal that stepped into touchy terrain for labor: collective bargaining.

Department of Education officials scrapped rules that interpreted certain provisions in the "No Child Left Behind" Act of 2001 as trumping future collective bargaining agreements and other employee protections.

The proposal was included in draft Title I rules released in August, but was absent from the final version issued last month.

"We wrote a very lengthy legal memorandum that said, based on the statute, they're wrong," said Joel Packer, a lobbyist for the National Education Association. That memo may have been a shot across the bow for possible legal action. The American Federation of Teachers also strongly objected, as did the Council of Chief State School Officers.

The federal law, the groups noted, says that "nothing" among the act's consequences for low-performing schools can override employee rights and protections under state or local laws, or collective bargaining agreements. That, they said, includes prospective laws and pacts.

The act's employee- protections language, the agency argued in a discussion section accompanying the final rules, wasn't meant to deny local officials "management tools" to implement school improvement measures, "which may often involve changes in the assignment and duties of [district] and school personnel." Collective bargaining often restricts a district's ability to move teachers from school to school. But even couched in the bureaucratese of that discussion section, the agency's reluctance to change course seemed clear.

"[T]he secretary [of education] agrees that the proposed regulations arguably were inconsistent with a strict reading of the [law] and may have conflicted with applicable state and local laws," the agency said.

Chester E. Finn Jr., the president of the Thomas B. Fordham Foundation, speculated that the reversal may have had more to do with politics than legal concerns. The administration, he said, has a somewhat "affectionate" relationship with the AFT, even while the NEA is pretty much on the outs.

"I wouldn't be surprised if this was payback for the AFT," said Mr. Finn, an assistant education secretary in the Reagan administration. "At least as likely as being fearful of the litigation was being nice to [AFT President] Sandy Feldman."

—Erik W. Robelen

Vol. 22, Issue 15, Page 20

Published in Print: December 11, 2002, as Federal File

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