Update on Potential NEA Lawsuit Against NCLB

[Bob Schaeffer <bobschaeffer@earthlink.net>]

          TEACHERS UNION: NCLB LAWSUIT DELAYED, NOT DEAD
                       Associated Press -- June 27, 2004
                               by Ben Feller

Washington -- The nation's largest union boldly pledged a year ago to 
rally states to sue the Bush administration over education spending 
under the No Child Left Behind law. It turns out that the National 
Education Association has been the one left behind.

At least 30 state legislatures, including some led by Republicans, have 
expressed their displeasure over the law. Not one state, however, has 
agreed to join a lawsuit the teachers' union announced one year ago and 
planned to file by last summer.

"Maintaining a good relationship with the federal government that 
oversees your programs and suing them at the same time makes it a very 
difficult proposition," said Patty Sullivan, deputy executive director 
of the Council of Chief State School Officers.

"You have to be pretty certain that you're going to win, because you 
really will jeopardize your ability to get other things. You have to 
think through the politics of that," she said.

The threatened challenge, which would have been the most direct shot at 
the heart of Bush's domestic agenda, is not dead, the union says. A few 
school districts have agreed to participate and the union is weighing 
when to go on if no state joins the fight.

Union leaders claim the primary reason the suit has stalled is that 
states fear retaliation by the Education Department. Yet participation 
by states is critical because they would have the strongest standing to 
sue, the union says.

"It's difficult to think that in 2004, there is fear of reprisal, 
intimidation and harassment," said Reg Weaver, the NEA's president.

Added the group's general counsel, Bob Chanin: "I would have thought 
they (states) would be jumping at this. We have a solid legal theory. 
We're prepared to do all the work. We just want to enlist them, but for 
a variety of reasons we haven't been able to push any state over the hump."

Union leaders could not offer proof of threats against states or name 
ones that fear retaliation. But they said state and local school 
officials tell them they fear cuts in discretionary programs, such as 
reading grants, or rejection of changes they want in state school plans.

Education Department spokeswoman Susan Aspey said the claims were 
"utterly baseless" and that the administration has proved it works 
closely with state policy-makers. "We're pleased the states have chosen 
to work directly with us rather than through the courts," she said.

A lawsuit would hinge on a provision of the law that says states and 
school districts would not have to use their own money to pay for any of 
the law's requirements. It is an important issue because debate has been 
continuous over whether the government is paying enough to implement the 
law.

The NEA courted a plaintiff from the Democratic Governors Association, a 
group to which the union makes considerable donations through its 
political committee.

The governors support the NEA but have opted for "rigorous discussions" 
with the administration about their problems with the law, spokeswoman 
Nicole Harburger said. She said Democratic governors did not fear 
reprisal if they were to join the suit.

The law is considered the most sweeping education overhaul in almost 40 
years, a bipartisan effort intended to help schools succeed and to 
punish many that fail.

It demands highly qualified teachers in all core classes, expanded 
standardized testing, more information for parents and verifiable yearly 
progress among many subgroups of students.

As the law's effects began to take hold, most states debated or passed 
measures to seek relief. Vermont and Maine have passed laws prohibiting 
use of state money to pay for the law's mandates, the same basic ground 
of the proposed NEA suit.

A few considered opting out of the law, thereby rejecting millions of 
federal dollars for poor children, although none did. A lawmaker in one 
such state, Democratic Sen. Steve Kelley of Minnesota, said any fight 
for money by a state could be portrayed as opposition to the law.

"State legislatures support the idea of closing the learning gap," said 
Kelley, a leader of a task force on the law for the National Conference 
of State Legislatures. "You would not want to be in a position where 
somebody on the other side could say that you are suing in order to 
preserve an inequality of results for kids."

States cited other reasons for staying out of the suit -- internal 
disputes among crucial personnel or organizations, lack of data about 
their state's costs, hopes that Congress will change the law.

Meanwhile, the states are feeling heat from below. Half face suits from 
local agencies over the adequacy of school financing; that may grow as 
scores emerge about achievement of poor and minority students, reporting 
required by the new law.

The NEA says just the threat of a suit has been a success, drawing 
attention to the question of whether Bush has kept his promise about the 
size of his spending increases.

The 2.7-million member union begins its annual meeting this week in 
Washington, when it expects to endorse Democratic Sen. John Kerry for 
president and raise perhaps $1 million for its political committee.

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