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1) 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. One of the
attorneys who filed the suit, and who is undoubtedly its primary author, is
NEA General Counsel Robert H. Chanin.
Though the complaint makes many claims,
it hinges on one phrase in the law that releases states and school districts
from any obligation "to spend any funds or incur any costs not paid for
under this Act." The lawsuit claims that by failing to provide "sufficient
federal funds" to pay for its provisions, "the Secretary of Education is
violating the Spending Clause of the United States Constitution."
So far, the arguments have fallen along
predictable lines. The Department of Education attacked both ends of the
union lawsuit by asserting that NCLB is neither a mandate nor insufficiently
funded. NEA is taking an unusual stance for a left-of-center labor
organization. "The law says that you don't have to do anything it requires
unless you receive the federal money to do it," Chanin told the New York
Times. "There's a promise in the law, and it is unambiguous."
But EIA has evidence of some
considerable ambiguity in NEA's own argument.
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."
As EIA reported in its
December 8, 2003 communiqué, Chanin advised the union not to pursue
litigation on that issue, and the bulk of the memo provides NEA state
affiliates advice about the best way to comply with the law. What makes the
memo relevant to last week's lawsuit is the reason Chanin cited for not
pursuing litigation.
"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."
Chanin then helpfully goes on to cite
the many cases to support this interpretation: Jim C. v. United States
("Congress can condition the receipt of all federal funds on state's promise
not to discriminate against disabled persons"); Kansas v. United States
("threatened loss of $130 million in federal financial support for state
welfare program for failure to adopt changes in welfare program as mandated
by Congress held not 'coercive'"); Nevada v. Skinner ("no coercion
where potential loss of federal funds represented approximately 95% of state
highway funds"); Koslow v. Commonwealth of Pennsylvania ("threatened
loss of all federal financial support to the state Department of Corrections
is not coercive… it is a free and deliberate choice by the Commonwealth");
California v. United States ("conditioning state's receipt of
Medicaid funds on state's agreement to provide emergency medical services to
illegal aliens does not make the condition involuntary"); Virginia v.
Browner ("no coercion where state would lose portion of federal highway
funds for failing to comply with requirements of Clean Air Act"); and
Oklahoma v. Schweiker ("no coercion where state would lose all federal
Medicaid funds for failing to follow certain requirements in Social Security
Act.")
"In sum," the memo says, "we see no way
for a school district to avoid complying with the parental notice
requirement," but adds in a footnote, "except, of course, by rejecting NCLB
funding. But the parental notice requirement hardly seems sufficient to
trigger such drastic action."
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.
The American Federation of Teachers
quietly noted the NEA lawsuit, stating the AFT had "previously weighed the
legal option" but "chose instead to pursue legislative efforts to secure
more funding." Perhaps AFT was taken aback by the NEA argument on pp. 50-51
of the lawsuit that the NCLB teacher qualification requirement was costing
states money because it was driving up teacher salaries.
Following up the massive publicity
surrounding the lawsuit, NEA is still hoping to get a state government to
sign on.
2) US Averages One District
Administrator for Every 47 Teachers. EIA's latest
examination of U.S. public education staffing statistics reveals that, on
average, school districts employ one administrator for every 47 teachers.
This number refers to superintendents, assistant superintendents, resource
managers, and other professionals who work at district level offices. It
does not include school administrators such as principals, state
agency officials, or even district support staffers.
Among states, South Carolina leads the
rankings with one school district administrator for every 171 full-time
equivalent teachers, with Utah second at 133, and Louisiana third at 126.
New Mexico is at the bottom of the rankings, with one school district
administrator for every 17.5 full-time equivalent teachers, with North
Dakota just above at 18.6, and Ohio at 19.7.
The full rankings are available as Table
7 on EIA's school pay and staffing statistics web page at
http://www.eiaonline.com/statistics.htm.
3) Turnover Among NEA State
Executive Directors. EIA reported on April 11 that
Daniel Burkhalter of the Illinois Education Association (IEA) was named the
new executive director of the Wisconsin Education Association Council, but
that just opened the floodgates as far as those influential positions in the
NEA hierarchy are concerned.
An executive director acts as the chief
of staff for an NEA affiliate, running the daily operations of the union on
the orders of the elected union executives. But the executive director is
often a player in union – and state government – politics in his or her own
right. It's a powerful office, and usually pays better than that of union
president.
As Burkhalter moves on to Wisconsin, his
old boss, IEA Executive Director Clay Marquardt, announced his retirement,
to take effect this summer. No replacement has yet been named.
Elsewhere, Maryland State Teachers
Association Executive Director Betsy Moyer will retire, soon to be replaced
by David Helfman, a former assistant executive director for the Pennsylvania
State Education Association.
And finally, Kentucky Education
Association Executive Director Charlie Vice will retire. KEA is currently
advertising the opening. Mr. Vice will always hold a place in the EIA
pantheon because of his veiled threat to hire replacement workers during the
KEA staff union strike of 2000 (see the
February 7, 2000 EIA Communiqué).
4) Retired? Your Dues Will Go Up
Anyway! With retirees the fastest growing category
of NEA membership, it was only a matter of time before someone figured out
there was some additional cash to be had. In September 2006, NEA Retired
dues will increase from $15 to $25.
5) NEA Member Surveys to Ask About
Religion and Politics. In an apparent effort to
learn what went so horribly wrong in 2004, NEA's annual membership telephone
survey will ask selected members whether their religious beliefs affect
their voting on political candidates and issues. Other new questions on the
survey provide hints of NEA's internal and external priorities, such as
respondents' level of participation in union activities, how often they view
NEA web sites, and how they feel about private accounts in the Social
Security system.
6) California Teachers Association
to Hold Major Rally. The California Teachers
Association (CTA) will hold a major rally against the governor's reform
agenda on May 25. The main rally will be held at the state Capitol in
Sacramento with another held at the same time in Los Angeles. Local
affiliates around the state are negotiating with school administrators for
early release so that CTA members can attend (your tax dollars at work).
Fortunately, most Sacramentans try to
get out of town before the Jazz Jubilee starts that Friday, so we'll
engineer an early release of our own.
7) The Yellow Woes of Texas.
With NEA New York about to become the financial millstone of AFT, Texas
resumes its rightful position as NEA's biggest basket case. The Texas State
Teachers Association (TSTA) could not pull off its own AFT merger, but it
did manage to stem the bleeding after cutting staff, closing regional
buildings and refinancing loans.
Unfortunately, TSTA cannot change the
state of Texas quite so easily. There is no exclusive representation in
Texas, a situation which has created a unique blend of competing teacher
organizations, both statewide and regional. TSTA is also experiencing a
phenomenon common to many struggling teacher union affiliates: trading
full-time teacher members for part-time or lower-paid support employee
members.
Texas sources tell EIA that TSTA is down
only about 100 active members from last year. That's the good news. The bad
news is the union picked up 400 support employees and lost 500 teachers. So,
while TSTA has had only a marginal change in membership numbers, dues income
is hurt significantly. Expect some familiar penny-pinching in the Lone Star
State.
8) Cedar Springs Support Employees
Drop Michigan NEA. NEA state affiliates have
generally had good success organizing education support employees,
recruiting them in larger percentages than classroom teachers in recent
years. But in the Cedar Springs Public Schools, support staff dropped
Michigan Education Association (MEA) representation in favor of that offered
by the International Union of Operating Engineers. Employees have been
working under an expired contract since September. MEA continues to
represent the district's teachers.
9) Hawaii Teachers Union to Study
Subs as Members. Pay levels and union
representation have been hot issues for Hawaii's substitute teachers for
several years now. Industrial and public sector unions, along with an
independent outfit, have tested the waters and the legislative jumble
concerning collective bargaining for subs.
Now the Hawaii State Teachers
Association will get into the act. The union will conduct a feasibility
study to determine if accepting substitutes as members would be possible
and, of course, cost-effective.
10) Editor's Note.
Concern was expressed in some NEA circles that last week's item about the
alleged embezzlement at the Michigan Education Association's Hancock office
indirectly implicated UniServ director Denis Skoglund as the suspect. Since
that's the exact opposite of what I meant to imply, let me state here for
the record that Mr. Skoglund is not a suspect. Since he is acting as MEA's
spokesperson on the matter his innocence seems perfectly clear to me and
should be clear to all my readers as well. Please re-read last week's story
with this in mind.
11) Imponderables in Academia.
It has been said that an infinitely large number of monkeys sitting at an
equally large number of typewriters for an infinitely long period of time
will eventually type out the works of William Shakespeare. The mathematics
of this concept are debatable, but three MIT graduate students proved that
some well-educated people can't even tell the difference between Shakespeare
and random keyboard pounding by monkeys.
The three students developed a computer
program that generates academic papers by inserting random words that fit –
grammatically, syntactically and contextually – into a framework essay. The
computer program produced a paper titled "Rooter: A Methodology for the
Typical Unification of Access Points and Redundancy," which begins with the
sentence: "Many scholars would agree that, had it not been for active
networks, the simulation of Lamport clocks might never have occurred."
The students submitted their work of
academic gibberish to the Ninth World Multi-Conference of Systemics,
Cybernetics and Informatics, where, to their delight, it was accepted. The
conference rescinded the invitation when the true nature of the paper was
revealed, but EIA wonders why. Visit the conference website at
http://www.iiisci.org/sci2005/. The entire conference appears to have
been created by a random word generator (review your lessons in Educanto in
the
October 1, 2001 EIA Communiqué).
12) Quote of the Week.
"We need to debunk the idea that we're all about Hoffa and
that we're mobbed up." – Paul E. Almeida, president of the Department of
Professional Employees at the AFL-CIO, explaining his organization's biggest
obstacle to recruiting university faculty members. (April 22 Inside
Higher Ed News) |
