NEA's memo contradicts its lawsuit

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The National Education Association's chief lawyer two years ago wrote a memo that said the No Child Left Behind Act was voluntary and not an unfunded mandate, a position that contradicts claims in a lawsuit the union has filed against Education Secretary Margaret Spellings.

Robert H. Chanin, the union's general counsel, told NEA state affiliate leaders and employees in a May 2003 memo that the federal No Child Left Behind Act is a mandate only if states accepted federal education funds.

In the confidential communication, obtained by the Elk Grove, Calif.-based Education Intelligence Agency (EIA), a teacher union watchdog group, Mr. Chanin said any state, school district or public school can walk away from the No Child Left Behind Act's learning achievement accountability requirements simply by not accepting federal dollars that trigger them.

The NEA's federal district court challenge in Michigan, the school district of the city of Pontiac v. Margaret Spellings, claims that insufficient federal money has been appropriated to implement requirements that children in public schools be able to read and do mathematics at grade-level from year to year.

The NEA declined to comment on the memo.

"The NEA does not comment on confidential memorandums to its state affiliate officials and employees," union spokeswoman Denise Cardinal said.

Mr. Chanin's memo concerns a requirement in the law for local school districts to notify parents if their child's teacher does not meet the law's definition of "highly qualified."

"Neither the parental notification requirement -- nor, indeed, any of the other requirements in NCLB -- are 'imposed' on the states in a legal sense," Mr. Chanin wrote.

"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," he wrote in the memo.

It also lists seven federal court decisions in which states had challenged conditions tied to various federal grant programs. In each case, the courts ruled that federal conditions are not coercive but accepted voluntarily by states when they take money offered by Washington.

"NEA is taking an unusual stance for a left-of-center labor organization" by claiming public schools do not have to fulfill NCLB requirements unless they receive federal funds to do so, EIA Director Michael Antonucci said in his weekly newsletter, "Communique."

The American Federation of Teachers, the NEA's chief union rival, declined to join the lawsuit against NCLB. It chose instead to lobby Congress for more funding, he noted.

"Perhaps AFT was taken aback by the NEA argument [in] the lawsuit that the NCLB teacher qualification requirement was costing states money because it was driving up teacher salaries," Mr. Antonucci said.