LFT to file lawsuit challenging “Red Tape” act

(Baton Rouge – June 18, 2010) The Louisiana Federation of Teachers will file a lawsuit challenging the constitutionality of HB 1368, the so-called “Red Tape Reduction and Local Waiver Empowerment Program,” Federation President Steve Monaghan announced today.

“As we argued before every committee that heard the bill, we believe that this act is an unconstitutional delegation of legislative authority,” Monaghan said. “The legislature simply does not have the right to hand off its responsibility to another branch of government.

“We are filing this lawsuit out of respect for the value of law,” Monaghan said.

As passed by both the Senate and House of Representatives, the bill would allow local school superintendents, with school board approval, to ask the Board of Elementary and Secondary Education for a waiver of virtually any law or policy governing public education.

BESE is a policy-making body comprising 11 members. Eight are elected, and three are appointed by the governor.

“If allowed to stand, this law will permit BESE to act as a legislative body,” Monaghan said. “That board will be allowed to decide which of the laws passed by the legislature will be enforced, and in which communities.

“By outsourcing its legislative authority to BESE and allowing the selective enforcement of duly enacted laws,” Monaghan continued, “we believe the State Legislature has unconstitutionally ceded its authority to another entity.”

Monaghan said that HB 1368 is very different from the state’s charter school law, which allows waivers of laws and policies that affect other public schools.

“In establishing charter schools, the legislature itself spelled out the laws and policies which could be set aside for a charter experiment,” Monaghan said. “But in the “Red Tape” act, the legislature is giving BESE the discretion to cherry-pick which laws can be flouted, and in which school districts. That is a crucial distinction.”

Federation General Counsel Larry Samuel said the lawsuit will be filed in the 19th Judicial District Court in Baton Rouge after it is signed by Gov. Bobby Jindal. The suit will ask for an injunction prohibiting BESE from taking any action based on authority granted by the “Red Tape” act.

“We do not believe that we are breaking new ground with this suit,” Samuel said. “We believe there is adequate, settled case law proving that the legislature does not have the constitutional authority to delegate its responsibilities to an administrative body.”