Saturday, April 30, 2005


The Education Intelligence Agency website has this story on the National Education Association and its current lawsuit against the federal government over provisions of the No Child Left Behind Act. I'll quote it here in full.

EIA Exclusive: Does NEA Believe

Its Own NCLB Legal Argument?

The National Education Association filed suit against the U.S. Department of Education last week, claiming the No Child Left Behind Act (NCLB) is an unfunded federal mandate. Nine NEA state affiliates and one local affiliate joined the suit, along with nine school districts in three states.

On May 7, 2003, the NEA Office of General Counsel sent a "confidential-attorney/client privileged" memo to a large group of state affiliate officers and employees. The memo concerned the NCLB provision regarding the notification of parents whose teachers did not meet the law's definition of "highly qualified."

"There are two conceptual possibilities for a challenge based on federal law," the 2003 memo reads. "One is that the parental notice requirement violates a right guaranteed by the First Amendment, denies equal protection, or runs afoul of some other provision in the United States Constitution. We find no such violation. "The other basis for a possible federal law challenge is 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 has 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. NCLB has been enacted on the basis of Congress' Spending Power, and states can avoid this and other statutory requirements simply by declining to accept federal Title I funds. If the states decide to accept such funds, however, then they must also accept the conditions that Congress has attached to them. To be sure, a legal argument can be made that this choice is not really 'voluntary' – states have no option but to comply inasmuch as they cannot adequately fund public education without the federal contribution – but the courts uniformly have rejected such an argument in the education context, as well as in connection with other federal aid programs."

NEA President Reg Weaver told the media, “The principle of the law is simple; if you regulate, you have to pay." But the memo and all those court cases illustrate the obvious fact that federal funds are a two-way obligation. If you want the federal bucks, you have to play by the federal rules.

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