Thursday, January 17, 2008

THUMP!! The Texas School Law Bulletin 2008

The 2008 version of the Texas School Law Bulletin just landed on my desk with a hearty THUMP. 1,721 pages. That's a lot of law.

This tome has been a part of my life for a long time. When I was a pup, trying to find my way in the world of school law, I made sure to carry the School Law Bulletin with me at all times. I carried it prominently, to be sure that people would notice that I was carrying it. The theory was that people--potential clients--would see me, see the book, and make the connection. "Oh," they would think, "that young fella must be a lawyer."

Every profession has its symbols. Preachers carry a Bible. Teachers carry books. Coaches have whistles. I guess baseball players carry syringes. This makes it easy for us to associate the person with the profession.

But I'm not going to lug around this bad boy. The 2006 version was 1,542 pages. The 2008 version is 179-pages longer. My desk sags under its weight. No way does it go in my briefcase.

The book keeps getting bigger because the laws keep coming. If you want concrete proof that your life has become more complicated, the School Law Bulletin will do the job. I think it would be a great service to the education profession for someone to go through all 1,721 pages and count the number of duties the law imposes on someone other than a classroom teacher. This would be a terrific doctoral dissertation.

What would the point of that be? To refute those who say we do not need school administrators. To educate those who do not understand that schools are required to do so many things that cannot be done by the teacher in the classroom.

Critics of public education are fond of criticizing our supposedly "bloated bureaucracies." But if they would take the time to identify the legal mandates that SOMEONE has to comply with, they would see that there is a need. Moreover, they might see that the bureaucracy that exists did not spring up out of a vacuum--it is there to respond to legal mandates imposed by the Texas legislature, state agencies and the feds.

If Texas wants leaner, more efficiently run school districts, it could begin by adopting a moratorium on any new laws or regulations impacting local school districts. But we don't look for that anytime soon.

Furthermore, the School Law Bulletin doesn't even tell the whole story. Its 1,721 pages contain only the statutes passed by the Texas legislature. It does not include the federal laws, or the state regulations.

The good news for us lawyers is that with all these laws, it looks like you will continue to need us. We're grateful for the work. But we won't be hauling this book around with us anymore.

Wednesday, January 9, 2008

Greetings, Blogees! I guess that's the right term. If I am the "blogger" I guess you readers are the "blogees." Whatever the term, we here at TSALD decided it was time to enter the blogosphere. So from now on, you can expect regular posts here from the Dawg. We look forward to your responses!

We'll start off with this: BIG NEWS RE: NCLB.

The 6th Circuit has reinstated the lawsuit filed by NEA, TSTA and a variety of school districts (including Laredo ISD) challenging the funding of NCLB. The suit is based on a single sentence in NCLB which says that nothing in the law should be construed to "mandate a state or any subdivision thereof to spend any funds or incur any costs not paid for under this Act."

This sentence is there for political reasons. It enables politicians to claim that NCLB is neither an unfunded nor an underfunded mandate--everything we require you to do we pay for. If we don't pay for it, you don't have to do it. Senator Gregg (N.H.) said as much as he sponsored the amendment that included this language. He said that the purpose was "to assure that this bill will not become an unfunded make it clear that if the Federal Government tells the State to do something or tells the local community to do something, the Federal Government will have to pay for the costs of that mandate."

That's a very reasonable interpretation of the section of the statute in question. It's hard to see how else you could read it. In fact, Rod Paige, former HISD Superintendent and former Secretary of Education, confirmed this. He said "if it's not funded, it's not required. There is language in the bill that prohibits requiring anything that is not paid for."

But the current Secretary of Education is attempting to distance herself from her predecessor's remarks, calling then "stray comments." The Bush Department of Education argues that the statute merely prohibits some rogue federal bureaucrat from imposing additional requirements on the locals, beyond what the statute calls for.

That's a crock. Rogue federal bureaucrats can't impose requirements that are not authorized by statute in the first place--you don't need a section of the law to say that.

The Bush Administration is trying to convince the court that the statute does not mean what it says. Two of the three members of the 6th Circuit panel didn't buy it. They say that Congress has to be very clear about what it requires of states. If it is not willing to pay for the full costs of compliance with its requirements, it has to say so. The feds cannot have it both ways. Congress cannot claim that they are paying for everything they require, and then have the Department of Education argue that "we didn't really mean that."

This case has a long way to go. This preliminary ruling may go to the Supreme Court, and there is no telling what the Big Nine will do with it. If the case does end up in a full blown trial, it will be very difficult to sort out exactly what are the costs of compliance with NCLB. But at a minimum, we can report that we are starting the new year with a very interesting decision with large scale implications for the funding of public education.

Stay tuned. It's going to be interesting.