Legal Newsletter
April 11, 2025, No. 14
As the current legislative session comes to an end, the AEA is turning its attention to the school funding appropriation for the 2025-2026 school year, and the long-awaited revision of the Arkansas school funding law which has been in place for over two decades. Representative Cozart was appointed and is leading the study effort on a new “weighted” school funding scheme modeled on Tennessee’s school funding law which has been called the Comprehensive Investment in Student Achievement Act (CISA). The AEA, with the support of the NEA, has marshalled resources and is continuing to study the proposal and work with stakeholders to ensure that the new funding formula meets the needs of educators and increases the funding of the public schools despite the impact of LEARNS and the EFA vouchers program, which are expected to cost hundreds of millions of dollars this year.
There have been some developments regarding the U.S. Department of Education’s directive that state and local educational entities “certify” that they are not funding DEI programs or lose federal funding, which is significant in Arkansas. Although the NEA lawsuit resulted in an injunction against enforcement of this directive, at least until April 24, the ADE went ahead and immediately scheduled a virtual meeting with administrators and directed them to comply with the directive. This means that, in some of your school districts, there may be a heightened level of scrutiny over the teaching of any subjects which might involve this very broad scope of subject matter. You may also be aware that the AEA and the NEA are supporting a lawsuit challenging the provisions of LEARNS which prohibited the teaching of DEI-related subjects and issues. Walls v. Oliva (8th Cir.). The ADE’s reaction to this was simply, “DEI is illegal.” Many other states have simply rejected this unlawful directive, including Minnesota, Utah, Michigan, Massachusetts, and New York. As far as I can ascertain, Arkansas is the sole complying state. These USDOE directives will continue to be challenged by the NEA and the ACLU.
Dr. Bradley Bartels, Legal Services Director
April 10, 2025, No. 13
There was a major development today in the lawsuit which the NEA and the ACLU filed to enjoin the enforcement of the U.S. Department of Education’s “Dear Colleague” letter and the anti-DEI certification letter issued by the USDOE (see Legal Newsletters Nos. 11-12).
The parties to the lawsuit have reached an agreement that blocks the department from taking any enforcement action under either directive until at least April 24, 2025. The agreement, reached after the NEA filed an emergency motion to block the Certification Requirement, ensures that no school district, state agency, or higher education institution will face investigation or penalties for failure to return the challenged certification that diversity, equity, and inclusion efforts do not exist within their curriculums.
As part of the agreement, states and local education agencies are not required to submit the certification now. The department has agreed not to act upon any already submitted certifications or treat them as material representations before the April 24 deadline. This pause in enforcement provides immediate relief to schools across the country while the broader legal challenge continues. The agreement also clarifies that any certifications submitted by states or local education agencies will not become effective prior to April 24 and may not be used for any purpose, including as the basis for enforcement actions, investigations, or liability under the False Claims Act or similar legal claims. The department further agreed it will not initiate any enforcement actions or investigations based on the Feb. 14 letter or any actions implementing it until after April 24.
The AEA will continue to monitor the lawsuit and the actions of the Arkansas Department of Education. There is potential that all Arkansas school districts may be impacted by the inability to engage in any work or teaching on issues of diversity, equity, and inclusion.
Dr. Bradley Bartels, Director of Legal Services
April 8, 2025, No. 12
You may be aware of the Trump administration’s continued focus on eradicating all “DEI” programs, and the controversy surrounding the U.S. Department of Education’s “Dear Colleague” letter and the “Request for Certification” letter (Legal Newsletter No. 11). Arkansas Secretary of Education Jacob Oliva confirmed to us this morning that the Department has signed off on the Certification letter, stating that it is clear that such education programs are now “illegal.”
The U.S. Department of Education has continued to slash available school funding, most recently on March 28, when Education Secretary Linda McMahon sent a “funding letter” to all chief state school officials informing them that the liquidation period of any remaining obligations under the Education Stabilization Fund (COVID relief funds) would end that day. The current funding available under the law is estimated to be $4.4 billion nationally. To make matters worse, late “liquidation” requests sent by states on behalf of local districts that were approved in the waning days of the Biden administration are not being honored.
While the “liquidation” period has now ended according to the USDOE, it intends to recognize an extension of funding on a project-specific basis. Such an extension is dependent upon a finding that the funding will still mitigate the impacts of COVID and why the extension should be granted. Secretary Oliva has indicated that approximately $25 million in funding remains for Arkansas, and that an appropriate request for extension will be filed with the USDOE by the State.
Dr. Bradley Bartels, Legal Services Director
April 4, 2025, No. 11
The Trump administration has continued its attack on public education in the last week, including issuing an executive order giving state education agencies ten days to certify that their schools do not engage in any practices that the administration believes “illegally” promote diversity, equity, and inclusion. This requires a “certification” from the state as well as officials in each school district. Federal funding typically exceeds 10% of total education funding, with some states like Arkansas, in the 19-20% range of total funding. Those state agencies which do not comply have been threatened with the loss of federal funding. Craig Trainor, the current acting Assistant Secretary for Civil Rights, said in a statement justifying this action that, “federal financial assistance is a privilege, not a right,” and went on to say that “if state education commissioners accept federal funds, they agree to abide by federal antidiscrimination requirements.” This is an extension of the administration’s action in issuing its “Dear Colleague” letter in February. The NEA has filed a lawsuit in regard to the slashing of federal funding for DEI efforts.
This is also consistent with the administration’s actions in late January directing federal agencies to explore ways to use the existing federal funding programs to support private and religious school vouchers. The administration has tasked the U.S. Department of Education with dismantling itself as well as finding ways to promote K-12 school choice, and the administration has also instructed other agencies to assess how other funding mechanisms for public education could expand access to private education. Despite these actions, these executive orders cannot, as a matter of law, overwrite current federal law regarding funding. Current laws specify both how funding will flow and what it will flow for – supporting public schools. These executive orders, like many of the plethora of orders issued in the last three months, are largely symbolic.
Dr. Bradley Bartels, Legal Services Director
March 29, 2025, No. 10
Things continue to move quickly regarding this administration’s action to shut down the USDOE, and the NEA response to it.
The USDOE is currently blocking access to millions of dollars meant for K-12 funding. Many states have experienced this delay since early March, putting school programs at risk. Several states have filed lawsuits over the federal government’s delay in reimbursing funds for school district expenses, including California, New York, and Illinois. These reimbursements generally are “leftover” funds from the various pandemic relief efforts and other funds from the American Rescue Plan of 2021.
It is becoming clear that the courts are becoming the basic tool to resist the aggressive policies being utilized by the Trump administration and the use of executive orders and drastic slashing of staff and funding through the USDOE. As of this week, there are at least 19 lawsuits challenging the administration’s policies on education and related issues. These lawsuits challenge a number of executive orders and actions, including the funding freeze on financial assistance, anti-DEI issues, DOGE data access, immigration enforcement, transgender athletes, and the so-called “Dear Colleague” letter. The NEA has taken the lead in two of these lawsuits, including NAACP et al. v. United States and National Education Association v. U.S. Dept. of Education.
To date, Arkansas school officials have not been active in questioning the delay or curtailment of federal funding. Secretary Oliva has been on the record as supporting the dismantling of the U.S. Department of Education transferring any available funds to state “block grants” which the State could utilize at its discretion.
Dr. Bradley Bartels, Director of Legal Services
March 28, 2025, No. 9
The impact of the actions of the federal government to slash programs and agencies are beginning to be felt, although what that means for Arkansas public schools has yet to be determined.
This week, the NEA with some coalition partners including the NAACP and AFSCME, filed suit in the U.S. District Court in Maryland challenging the Trump administration’s ongoing efforts to dismantle the Department of Education. The AFT, with its coalition partners, have also filed a similar lawsuit.
As you may be aware, the administration’s efforts began with the cancellation of over $1.5 billion in previously awarded contracts and grants. This will result in direct harm to NEA members participating in research and professional development opportunities. There have also been massive staff reductions at the USDOE, cutting the staff in half, closing seven of the USDOE’s regional civil rights offices, and slashing the staff at the Federal Student Aid office. These staff reductions have crippled the USODE’s ability to fulfill its statutory obligations to enforce civil rights laws, to calculate billions of dollars in federal education funding, and to enforce the requirements of the federal student loan and grant program. These actions may also threaten the funding and enforcement of the IDEA.
On March 20, Trump issued an executive order directing that the USDOE should be shut down. This lawsuit seeks a declaration that the administration’s actions are unlawful and seeks an injunction to prevent them from proceeding with efforts to dismantle the department.
Dr. Bradley Bartels, Director of Legal Services
March 14, 2025, No. 8
As you are aware, the current administration, including President Trump and numerous federal agencies, have acted on an array of fronts to attack public education and inclusive education practices, including efforts to support diversity, equity, and inclusion in schools, colleges, and universities – including efforts to completely weaken and dismantle the U.S. Department of Education (Legal Newsletter No. 5). The administration has also continued to reshape the federal government and to align it with a conservative ideology which is often in direct conflict with existing law, including with the executive orders “Expanding Educational Freedom and Opportunity for Families” and “Ending Racial Indoctrination in K-12 Schooling.” Other executive orders dismantle current protection for various classes of students and to weaponize religious identity in the schools.
If the USDOE were to be “dismantled,” key federal education laws, such as the ESEA and the IDEA, would remain intact, requiring other agencies to assume those programs and legal obligations. Project 2025 is the blueprint. It called for significant education funding reductions. Programs such as Title I and Pell Grants could be significantly impacted. Nutrition programs such as the National School Lunch Program and Head Start might also be significantly impacted. Numerous other programs which are federally funded could also be impacted.
The NEA has responded with the filing of litigation to support public schools. On March 5, the NEA Office of General Counsel filed suit in federal court challenging the USDOE’s “Dear Colleague” letter (Legal Newsletter No. 7), which imposed vague and sweeping restrictions on efforts to advance diversity, equity, and inclusion while giving schools only 14 days to comply before facing potential federal funding cuts. The lawsuit includes claims for violation of the First and Fifth Amendments to the Constitution of the United States.
In other legal developments, over 120 cases have been filed challenging the executive orders of this administration which directly impact, among other areas, public education at the K-12 and higher education levels. To date, 41 orders have been entered restraining or enjoining challenge actions. Federal judges have blocked key provisions of the executive orders including those on birthrate citizenship, federal funding, DEI initiatives, and the protection of various classifications of individuals. For example, a federal judge in Baltimore issued a preliminary injunction to block several key provisions of the administration’s anti-DEI executive orders.
The first months of the current administration, regardless of the legal challenges which have been mounted, have been chaotic for educators. AEA members, at the heart of what we do, care about students, families, and communities. One view is that, under these various executive orders, America will be “poorer, sicker, and hungrier.” This is our ongoing concern.
Dr. Bradley Bartels, Director of Legal Services
March 6, 2025, No. 7
It was reported yesterday that the Trump administration was about to issue an executive order which is intended to start the process of dismantling the U.S. Department of Education (see Legal Newsletter 2025, No. 5), which the newly confirmed Education Secretary, Linda McMahon, has referred to as her “final mission.” The executive order is said to contain orders regarding resources and personnel goals which would weaken and ultimately dismantle the department. Many of the funding streams from the agency, particularly in Title I programs and IDEA support, would take Congressional approval.
In another important related development, the NEA and the ACLU have filed a lawsuit in federal court in New Hampshire attacking the constitutionality of the “Dear Colleague” letter which was issued by the USDOE on February 25. You may recall that the “Dear Colleague” letter urged K-12 schools and universities to end any DEI programs at the risk of losing their federal funding. At the same time, the USDOE has curtailed investigations and efforts supporting enforcement of civil rights. The lawsuit argues that the letter violated the free speech and free association guarantees of the First and Fifth Amendments to the U.S. Constitution. The lawsuit seeks to invalidate the “Dear Colleague” letter as well as the so-called USDOE DEI “tip line.” The NEA will host a virtual town hall meeting on March 13 at 7:00 p.m. CST. You can register for the town hall meeting at nea.org/townhall. In the meantime, NEA members are responding to the DEI “tip line” by providing positive stories about educators and public education. Be advised that if you elect to participate, do not do so during school time, ensure the accuracy of any submissions, and do not provide any actual incidents of discrimination – there are other legitimate legal alternatives for such charges.
Dr. Bradley Bartels, Director of Legal Services
March 4, 2025, No. 6
As you know, Congress passed the “WEP-GPO” bill last fall. This bipartisan bill, the Social Security Fairness Act, repealed rules known as the Windfall Elimination Provision, or WEP, and the Government Pension Offset, or GPO, that reduced Social Security for almost three million Americans who were also beneficiaries of other pension plans which were treated as an offset for social security benefits. The NEA and its Congressional allies have been working with the Social Security Administration to move quickly on implementation of the new law.
The Social Security Administration has now issued an “information” regarding implementation. Starting last week, on February 24, the Social Security Administration began paying retroactive benefits and will start increasing benefits impacted by the new law. If a beneficiary is due to receive retroactive benefits, they will receive a one-time retroactive payment deposited to the bank account which the Social Security Administration has on file by the end of March 2025. Because such benefits are paid one month behind, most beneficiaries will receive their increase if they are entitled to one in April 2025, for their March 2025 benefit. Such beneficiaries will receive several notices regarding these changes.
Dr. Bradley Bartels, Director of Legal Services
February 7, 2025, No. 5
Many members have raised questions regarding the current state of the federal threat to dismantle the U.S. Department of Education, and what that might mean for educators and our students. Any executive order to that effect would not abolish the DOE. In the words of my friend Derek Black, a law professor and the author of Schoolhouse Burning, “at the end of the day, the President only has the power vested in him by the Constitution or by statute.”
Any potential executive order, however, could disrupt the operation of the DOE by taking a position that other executive orders have exhibited. It could seek to further expand school choice and disrupt federal funding in school districts or schools where the President claims DEI “indoctrination” is occurring. Further, the President might order the Secretary of Education to produce a plan to carry out these directives, or he might ask Congress to pass legislation to abolish the DOE, change the staffing requirements, change its organizational structure, or impact the funding of various programs. Some of these programs have an immense impact on education funding in our schools, with federal funding accounting for an average of 7% of funding of school districts nationwide.
For example, the DOE is charged with administering the funding of programs under Title I, which are crucial to school districts, and funding the program under the Individuals with Disabilities Education Act. There has been talk both at the federal level and here in Arkansas of converting this funding into block grants. As a barometer, President Trump has told Linda McMahon, whose confirmation hearings are coming up, that “I hope you do a great job and put yourself out of a job.”
Dr. Bradley Bartels, Director of Legal Services
February 3, 2025, No. 4
You may be aware that the incoming Trump administration has issued a plethora of executive orders. Many of these directly impact public education. Two of these executive orders are of particular interest to AEA educators.
The President has issued an executive order regarding a comprehensive “anti-indoctrination strategy” based upon the notion that schools “indoctrinate” children in radical ideologies which deliberately block parental oversight. This order calls for a study to be completed within 90 days to assess cutting off federal funding for schools which support “illegal or discriminatory treatment and indoctrination in K-12 schools, including based on gender ideology and discriminatory equity ideology.” The executive order also requires law enforcement officials to enforce the law by filing charges against educators for “sexually exploiting minors,” “unlawfully practicing medicine by offering diagnoses and treatment without the requisite license” or “otherwise unlawfully facilitating the social transition of a minor student.”
Further, the President has also issued an executive order entitled “Expanding Educational Freedom and Opportunity for Families,” which provides that federal agencies look for any “mechanisms” to support vouchers under existing funding programs. Specifically, the U.S. Department of Education has been directed to issue guidance within 60 days on how states may use formula funds to support “K-12 choice” and submit plans within 90 days about how discretionary grants can be used to support “education freedom.”
Dr. Bradley Bartels, Director of Legal Services
February 2, 2025, No. 3
The actions of the current administration have raised many questions and concerns about the impact of the executive orders on potential ICE actions taken against families of our students, and the potential impact of these actions on schools, teachers, and student safety and well-being. There is a wealth of information available to address these concerns. I am providing, in this Newsletter, some of the more important resources that might help us navigate in these challenging times.
We already have model policies on Safe Zone Resolution and District Policy that might be utilized in conversations with your school administrators, superintendents, and Boards of education. https://www.nea.org/resource-library/safe-zone-school-districts
In addition to the guidance previously provided by the AEA in the Legal Newsletter on December 17, the NEA has provided some guidance in the form of an FAQ concerning Immigration and School Enrollment. https://www.nea.org/sites/default/files/2023-04/frequently-asked-questions-on-student-discrimination.pdf. The NEA has also provided guidance regarding immigration and schools. https://www.nea.org/sites/default/files/2023-04/know-your-rights-immigration-schools.pdf
Dr. Bradley Bartels
Director of Legal Services
December 18, 2024, No. 2
The AEA Legal Services program is unmatched by any of the other professional education organizations which sell themselves as providing liability insurance for educators. These organizations do not provide legal services to their members.
The AEA, in partnership with the NEA, provides comprehensive legal services to members on a wide range of legal issues:
- Disciplinary actions by an employer, including letters of reprimand, suspensions, or terminations.
- Licensing investigations and hearings before the Professional Licensing Standards Board.
- Issues with working conditions or enforcement of school district policies and procedures.
- Civil rights issues under state or federal law, including Freedom of Speech or Freedom of Association.
- Claims of discrimination under state or federal law, including discrimination based upon race, sexual orientation, gender identity, national origin, immigration status, race, ethnicity, or other grounds.
The AEA, through the NEA’s Educators Employment Liability Program, also provides superior coverage including, but not limited to, $1 million in liability coverage, high limits for payment of legal costs, and up to $35,000 for employment-related criminal charges, subject to $3,000,000 per occurance aggregate for all claims.
December 17, 2024, No. 1
Immigration Fast Legal Points for AEA Educators
- Under the U.S. Constitution, public schools must teach all students free of charge regardless of whether they are “documented.” The “Plyler Right” provides that states cannot withhold funding for K-12 education.
- School districts should not inquire about students’ or their parents’ immigration status. School districts cannot disclose personally identifiable students records without the written consent of parents or a lawful subpoena or court order.
- School districts can disclose students’ “directory information” unless the student’s parents have “opted out.”
- Under the new administration, it is likely that there may be ICE raids in schools and districts that do not have a “safe zone” policy. Many of the protections of immigrant students such as DACA or birthright citizenship may be curtailed.
What to Do, and What Not To Do for AEA Educators
- Encourage your school district to initiate a “safe schools” policy or resolution. Model policies for use are available through the AEA Legal Department.
- If ICE shows up at your school, direct them to the school district superintendent.
- Do not physically interfere with or obstruct an immigration officer.
- Do not conceal, harbor, or shield from detection someone the educator knows or should know is undocumented. This is a federal crime. Merely providing a place to stay for an undocumented person is not “harboring.”
