Over at Edwize Leo Casey is all upset because he argues that Margaret Spellings is misreading an obscure but controversial provision of the Elementary and Secondary Education Act (currently called No Child Left Behind).
The provision in question says that the No Child Left Behind Act cannot trump local teacher collective bargaining agreements. Leo says that the Spellings crowd is trying to argue that this provision does not apply. Not sure that Leo is right or that this is the right fight for the unions to pick now anyway.
First, a quick bit of history. After No Child became law in 2002, the Bush Administration did try to argue that this provision did not apply. The NEA, on firm legal ground, quickly cleaned their clock on that one and the issue has been pretty dormant since excepting interest group and think tank chatter.*
Now, in an updated guidance covering a range of issues, all the feds said was that collective bargaining agreements are not a reason or excuse not to comply with the federal law (pdf). It’s not an unreasonable thing for them to be offering guidance on since there are a lot of questions. Key stuff upsetting Leo is page 42:
Although section 1116(d) [the collective bargaining language in ESEA] does not invalidate employee protections that exist under labor law or under collective bargaining and similar labor agreements, it does not exempt SEAs, LEAs, and schools from compliance with Title I, Part A.
That’s reasonable enough, no? And in other contexts, for instance prevailing wage laws, the teachers’ unions have argued for federal law to trump anyway. Here the issue is just that local policies don’t alleviate requirements for complying with the federal law. At a minimum not sure it’s good precedent for progressives to start picking and choosing when they do and don’t want federal laws to be enforced. Leo himself has eloquently made that case in terms of federalism and education.
Besides, I’m not sure this is the fight the teachers’ unions want. It may get old labor types like Leo really excited, but the public won’t get it, if they do they won’t support it, and calling a lot of attention to it will ultimately further erode labor’s position rather than enhance it. The provision has stayed in the law because of behind the scenes arm-twisting not deeply rooted support among legislators. Besides, there are a lot of people in the policy, civil rights, and even the ed interest group communities who want to see it gone and it’ll be an issue in the next reauthorization. In other words, jumping up and down about it is not great strategery.
*Update: AFTie One-L helpfully provides a timeline to the history of this provision. While it’s no secret that the Department of Ed doesn’t like this provision, per the above I don’t see how this guidance runs afoul of the law.