Teaching Profession

NEA Seeks Allies to Bring Lawsuit on ESEA Funding

By Bess Keller — August 06, 2003 7 min read

The National Education Association is vowing to build its political muscle and fight much of President Bush’s sweeping federal education law.

Among its tactics is a lawsuit the union plans to file on behalf of states, districts, and teachers, targeting so-called unfunded mandates in the “No Child Left Behind” Act of 2001. Since NEA officials announced their intentions at the union’s annual meeting in New Orleans last month, however, they have garnered little public support from other major education groups.

Union President Reg Weaver told more than 9,000 cheering delegates in his keynote address that the latest reauthorization of the Elementary and Secondary Education Act poses as Dr. Jekyll but is really the evil Mr. Hyde. Combined with the worst state budget crisis since World War II, the law is draining money from wiser efforts to lift student achievement and is shaping up to be “the granddaddy of all underfunded federal mandates,” he charged.

To counter that direction, the nation’s largest union is launching what Mr. Weaver called “a full-court, legislative press to fix and fund” the federal law, along with pursuing the lawsuit.

“NEA has immense problems with NCLB,” said Robert H. Chanin, the chief counsel for the 2.7 million-member union. “At this convention, I think any pretense of support has been swept away.”

The requirements of the law, which passed Congress with bipartisan majorities and is one of President Bush’s signature initiatives, include annual student testing in reading and mathematics in grades 3-8; increasingly severe consequences for schools that fail to meet academic standards; and higher teacher qualifications. Most kick in over the next few years, but some are already having negative effects, teachers at the meeting said.

Among the specific changes sought by the union: a definition of a “highly qualified” teacher that requires less proof of academic-content knowledge; more flexibility for states in measuring schools’ progress and in imposing penalties; and money for states and districts to help classroom assistants meet new quality standards. The union will also try to make full funding of the law a prerequisite of mandatory compliance.

‘Whining’ or Cry for Help?

That, too, is the aim of the proposed lawsuit, which is based on a provision of the ESEA that the union believes protects states and districts from having to spend their own money to comply with its requirements.

U.S. Secretary of Education Rod Paige criticized the NEA’s proposed legal action. It amounts to a “coalition of the whining to hold kids back,” he contended.

“It is unfortunate that the NEA establishment is talking about ways to hinder the goal of true reform and greater educational achievement opportunities for our children,” Mr. Paige said in a statement last month.

Mr. Weaver disagreed, saying that teachers weren’t whining but were crying out for help. “The powers that be should find ways to stop the crying,” the union president said, “such that [educators] will have what they need to be successful in providing a quality education for young people.”

The NEA says the federal government has not earmarked enough money to revamp testing systems, offer more school choice to parents, or train teachers and classroom assistants—all routes that state and local authorities must take to comply with the law.

Mr. Chanin said the lawsuit would turn on the issue of unfunded mandates because that argument was likely to draw the most support from the union’s allies, including civil rights groups, some of which are in favor of the law’s implementation.

States’ opposition to the law, meanwhile, is likely to be critical to the NEA’s case. Legislators in Hawaii, Louisiana, Minnesota, Nebraska, and Utah have introduced bills that propose opting out of it, even at the risk of losing federal Title I money for disadvantaged students, Mr. Chanin noted.

Late last week, NEA Spokeswoman Kathleen Lyons said the union was focused on “four or five” states that had expressed interest in the union’s arguments and might sign up as plaintiffs.

The National Conference of State Legislatures independently pointed out what it perceives as legal vulnerabilities of the law in a recent letter to its members. (“Legal Threats,” State Journal, this issue.)

Other possible plaintiffs include school districts and local teachers’ unions, but a state would offer much stronger legal standing, Mr. Chanin said.

Sibling Disagreement

The NEA’s search for a state to join the suit isn’t likely to be easy, according to some observers, despite the unhappiness in capitals over the cost of the law.

“The politics make it problematic to find a [state willing to be] a plaintiff,” said Charles Coble, who oversees policy studies and programs for the Education Commission of the States, a nonpartisan group in Denver that serves state education officials and legislators.

While a Republican-led state might be disinclined to join the suit because it goes against the president, Mr. Coble pointed out, the No Child Left Behind Act had also garnered strong support from congressional Democrats. As a result, he said, opposition from a state where Democrats are in control “would in a sense be confronting the [Democratic] Party’s position on the bill.”

Even if the NEA does not find a state, the legal action could serve an important purpose by spotlighting complaints about funding and mandates, he asserted.

Such complaints were linked last month to the NEA’s proposed suit by the American Association of School Administrators. Paul D. Houston, the AASA’s executive director, said in a statement that his group “commends the National Education Association for having the courage to hold Congress and the administration accountable for imposing federally unfunded mandates totaling billions of dollars on cash-strapped states and local school districts through implementation of NCLB.”

Other national education groups have not rushed to join the district superintendents, however. The National Association of State Boards of Education, for example, said its efforts continue to be focused on compliance.

The 1.2-million member American Federation of Teachers, which shares responsibility for some locals with the NEA and thus would seem to be a natural partner in the fight, became aware of the lawsuit only after it was announced in the press, President Sandra Feldman said in an interview.

She noted that the nation’s two largest teachers’ unions have “different strategies” in dealing with the federal law. Her organization has long advocated a brand of pragmatism that promotes working within the law’s confines. Still, the AFT has found plenty to buck in the legislation, such as what union officials believe is insufficient funding.

When “anxiety over the law gets whipped up into a generalized, simplistic ‘down with the law’ mantra, it jeopardizes Title I,” Ms. Feldman said.

‘Horror Stories’

AFT President Sandra Feldman, seen here with Sen. John Kerry, D-Mass., last month, favors working within the law’s constraints.
—Allison Shelley/Education Week

Officials of the NEA used the occasion of the July 1-6 meeting in New Orleans to set in motion their campaign against the federal law. Delegates told what they billed as their No Child Left Behind “horror stories” to a video camera for use in lobbying and public relations. In state caucus sessions, delegates completed postcards to their legislators. And teachers trooped to specially set-up phones and computers to send voice- and e-mail messages on the federal law to their representatives in Congress.

Kindergarten teacher Nancy T. Banales e-mailed her senators and representative to tell them to oppose its provisions. A member of the Fontana Teachers Association in California, Ms. Banales said she was concerned about teachers such as her classroom neighbor who will not meet the “highly qualified” standard set by the law without additional training.

“They have been teaching all these years, and all of a sudden they’re unqualified?” she said.

Blair Bolles, a middle school teacher in the Downey, Calif., district, told her lawmakers by e-mail that the law will actually widen the gap between disadvantaged and advantaged students that it was intended to close. By stigmatizing struggling schools and driving away students, only those with no other choices will be left at some schools, she wrote.

“It sets up,” Ms. Bolles argued, “impossible standards.”

Staff Writer Julie Blair contributed to this report.

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