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An NEA Memo From 2003 Raises Questions About Legal Nuances of School Law

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Has the National Education Association’s chief lawyer flip-flopped on whether the No Child Left Behind Act is an unfunded mandate, as the union’s recent lawsuit against Secretary of Education Margaret Spellings says it is?

NEA General Counsel Robert H. Chanin says no, but some say a confidential 2003 memo he wrote to the union’s state affiliates suggests otherwise.

The memo discusses possible ways to challenge a section of the federal law that requires parental notification when teachers are deemed not to be “highly qualified.” Mr. Chanin says in the May 7, 2003, memo that one argument could be that “there is no constitutional provision that gives Congress the authority to impose this type of requirement on states—and that might be an avenue worth exploring if that was what Congress had done.”

“In point of fact, however, neither the parental-notice requirement—nor, indeed, any of the other requirements in NCLB—are ‘imposed’ on the states in a legal sense,” he adds in the memo. “[S]tates can avoid this and other statutory requirements simply by declining federal Title I funds. If the states decide to accept the funds, however, they also must accept the conditions that Congress has attached to them.”

Mike Antonucci, a teachers’ union critic, suggested in his online Education Intelligence Agency newsletter last month that the memo contradicts the federal lawsuit that the 2.7 million-member union filed on April 20 with several school districts.

The suit argues that the Bush administration is forcing states and districts to spend their own money to comply with the NCLB law, in violation of a clause that bars federal officials from imposing any mandates under the law that it doesn’t pay for. ("NCLB Cases Face Hurdles in the Courts," May 4, 2005.)

The administration’s allies say the law’s requirements are not mandates because states don’t have to take the government’s money.Still,Mr. Chanin says those who think his memo contradicts the lawsuit—and supports the other side’s arguments—are missing the nuances.

“What we were talking about with the parental notice was not a funding provision,” he said in an interview. Therefore, he argued, the law’s unfunded-mandate clause would not have applied.

Mr. Antonucci said he was not surprised that a lawyer of Mr. Chanin’s stature “could argue both sides of this issue.”

“If he wants to make the claim that there’s some nuance in there, that’s fine,” he said, “but I think the [memo’s] language speaks for itself.”

Vol. 24, Issue 36, Page 26

Published in Print: May 11, 2005, as Paper Trail

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