How do the legal challenges to Project 2025 affect you as a PSEA member? PSEA Staff Attorney Harsha Mikkilineni and NEA's Mary Kusler explain what's changing, what's still unsettled, and what your rights and protections look like now.
How do the legal challenges to Project 2025 affect you as a PSEA member? PSEA Staff Attorney Harsha Mikkilineni and NEA's Mary Kusler explain what's changing, what's still unsettled, and what your rights and protections look like now.
Voiceover:
Welcome to Duty Free Lunch, the official podcast of the Pennsylvania State Education Association. Join us as we unpack the issues that matter most to you. From cutting-edge classroom strategies to though-provoking policy discussions, if it impacts PSEA members, it's on the menu.
Aaron Chapin:
Hello, and welcome to Duty Free Lunch. I'm PSEA President, Aaron Chapin. I'm here today with Vice President Jeff Ney and Treasurer Rachael West. How are we doing today?
Jeff Ney:
Oh, we are absolutely fantastic. Very excited to be here today.
Aaron Chapin:
Yeah?
Jeff Ney:
Yeah.
Rachael West:
I'm excited to be here every day. I don't know why you're acting like today's different.
Jeff Ney:
Well, every time we get to do a podcast, get extra excited.
Rachael West:
Exactly.
Aaron Chapin:
We have been talking a lot on this podcast about Project 2025. You know, Jeff, it's a 920-page document.
Jeff Ney:
Yeah. I'll tell you what, we've been going around talking a lot about what has already been enacted as far as that Project 2025 goes, and it's not good.
Aaron Chapin:
No, it's a blueprint that's driving some of the worst anti-public education actions that the federal government has ever pursued. And that's saying a lot.
Jeff Ney:
It is saying a lot.
Aaron Chapin:
It is saying a lot. We've been living in the 2000s.
Jeff Ney:
Wow. I know.
Aaron Chapin:
But fortunately, those actions are not going unanswered. Today, we are digging into the legal side of Project 2025. That's right. We've got a lot of wonky, wonky legal people out there, Rachael, that love this legal stuff.
Rachael West:
I know. When you like those details.
Aaron Chapin:
It's going to be the highest rated episode. DC's already getting ready to track it. We're going to be talking about what's actually happening in the courtrooms across the country, not just in DC, but across the country, and what it means for Pennsylvania and what it means for PSEA members specifically. So we got two great guests today. We got Harsha Mikkilineni. Did I get it right?
Harsha Mikkilineni:
Yes.
Aaron Chapin:
Whoa. I did something right this week. PSEA staff attorney who's going to help us break down legal stuff that's going on nationally here at home. And that's right, she's vying for the beautiful blue jacket for the highest amount of episodes. It is Mary Kusler, Senior Director of the Center for Advocacy at the National Education Association. And she's going to be giving us a national perspective on how this is all planned out for educators across the country. So welcome to you, Mary.
Mary Kusler:
I am delighted to be back with you all.
Aaron Chapin:
Yes, and welcome again to you, Harsha. We're excited.
Harsha Mikkilineni:
I'm glad to be here.
Aaron Chapin:
I bet you are. You're the first person from our legal division to make it on the podcast.
Harsha Mikkilineni:
I think that's right.
Aaron Chapin:
That's right. Pretty impressive.
Harsha Mikkilineni:
That's right. Harsha gets top billing for legal.
Aaron Chapin:
More important than her boss.
Harsha Mikkilineni:
I don't know about that one.
Aaron Chapin:
Okay.
Harsha Mikkilineni:
I was like, "That's scary. Don't say that out loud."
Jeff Ney:
Yeah. Come on now, man.
Aaron Chapin:
Oh my God. The air conditioning needs to be turned on in here, by the way. So welcome to both of you. Let's get started, Harsha. Big picture. Can you give our listeners a sense of the litigation landscape right now? Obviously there's a lot. So we're looking really to hear about the legal challenges that unions and state legislatures are really launching against the federal government. And where's it standing right now? I know it's a lot, but you got this.
Harsha Mikkilineni:
Sure. The big picture is that there is a lot going on. Yes. So I'll try to mention some of the things that NEA is involved in and our union brothers and sisters. So to start, we know that Project 2025 has a major goal of eliminating diversity, equity, and inclusion from basically all facets of life, and often without any real direction on what exactly it means to be "unlawful, illegal DEI."
NEA, in a coalition with a lot of good partners, including AFT, secured a great victory earlier this year, when after months of litigation, the Department of Ed conceded the end of its initial anti-DEI directives. That's not to say that the department has stopped all of its efforts to eliminate DEI, but the litigation provided a major hurdle to their objective.
Additionally, a lot of unions across the country had a great win whenever the federal mediation and conciliation services, which assists in collective bargaining processes for both private and public sector unions, was reduced down to its very skeleton staff of six mediators for the whole country, and severely limited what kind of unions could benefit from their services.
So a district court vacated the policy for that to limit services and ordered the agencies to completely reverse the reduction in force, basically holding that this was completely arbitrary and capricious. So the decision is holding for now. It has been appealed by the government, so we'll continue to keep an eye on it
Aaron Chapin:
Wow. Great news. Geez.
Rachael West:
So we're going to switch to Mary now. So Mary, from your seat at NEA, what are you seeing nationally as these legal fights are playing out? And is there a common thread across the states where this is hitting hardest or is it spread out all over?
Mary Kusler:
Well, it's an interesting conversation because I think we think about the role of legal in courts, but there's a broader legal going on here, which is about general advocacy and accountability. So in some perspectives, yes, we want the great ruling and we have been getting some of those great rulings, but in other cases it's about filing the court case to put this administration on notice, that as they tried to implement Project 2025, the things they are trying to do are not legal and should not go unchecked.
And so having the Democratic Attorney Generals who have been aligning and organizing and stepping up in many lawsuits, connecting state advocacy at this moment, to have labor advocacy and organizations such as Democracy Forward and NEA and other organizations out there challenging, you can't not send out money that Congress has appropriated. We just won that case about whether or not they can hold onto money that was supposed to go out for education research.
And we won, but now it gets hard, because they're still holding onto it. Filing the court cases is one aspect. Winning the court case is another aspect. Having the government actually comply with the ruling, whole nother game. But all through this, it's about the narrative. It's about how we're making sure that everyday educators across the Commonwealth, but then across the country, all NEA members and our families know what is going on right now and the fights that we need to fight.
Jeff Ney:
So Harsha, in your first answer, you started talking about how Project 2025 is going after our diversity, equity, and inclusion initiatives. Similarly, we're hearing about other programs that have been moved out of the Department of Education and into federal departments and agencies, like Health and Human Services, the treasury and labor. So what do you think families and educators who rely on those services should know about that transition?
Harsha Mikkilineni:
So Project 2025 has this big, broad goal of breaking up the Department of Education, and they've done this by starting to move major, major functions of the Department of Ed to six different agencies through inter-agency agreements. They claim to keep and retain the ability to retain final statutory and budgetary authorities, but the partner agencies will be handling day-to-day operations. One of the big ones is the movement of the Office of Civil Rights and the Department of Education out of education space to the Department of Justice.
Something else includes movement of special education programming into HHS, the Health and Human Services Department, and the entire $1.7 billion student loan portfolio into the Department of the Treasury.
Aaron Chapin:
Okay. That's not really good news, is it?
Rachael West:
Those are not places where they have been doing those kind of functions, right? So they're moving them to people who have never done that kind of work?
Harsha Mikkilineni:
That's exactly right. The expertise and the staffing ability in the Department of Education, they've been spending decades working on these programs as they've changed throughout the year, depending on whatever intricacy the law takes as the years go by. And so moving these to different agencies really eliminates that institutional knowledge that those departments already have and can create a lot of chaos in the meantime.
Jeff Ney:
Plus all of our people who have been used to just dealing with the Department of Education now, instead of just doing one department, now they've got to break up into all of these different and try to figure out the best way to get through each of those departments.
Aaron Chapin:
Frustrating. So Mary, let's go back to you. So when our members are hearing about these huge structural changes that Harsha was referencing, agencies being moved, offices being repurposed, what kind of impact are you seeing on educator morale, even before the legal outcomes are settled?
Mary Kusler:
Well, let's just take, for instance, special education. It is an issue that is near and dear to our members' hearts. This idea that all children, regardless of their disability, should have that access to a free and appropriate public education.
That program being overseen by the US Department of Education sends a very different message than moving it into the Department of Health and Human Services. By moving that program, which is primarily about making sure that everybody can access and engage in a public education, all of a sudden makes it a health program.
And to us, and to so many of our NEA members across the country, diminishes those expectations, hopes and dreams for our students with disabilities. So that is one part of it, that's on the macro level. Let's talk about it in the micro level. Our members, our incredible educators who go up and get up and do what's right by kids every day, do not need one more obstacle put in their way.
They do not need it to be harder to access dollars that are meant for children in poverty or children who are English language learners. They know that these resources are necessary to make sure that we're supporting all of our students. So the fact that the Department of Ed, as it's moving programs around is saying, "You know what guys? We don't really need to provide funding to educate English language learners. This is in line with our immigration agenda and we don't really need to make this system accessible to them."
Those are students who are still showing up to our schools each and every day and who our members are committed to serving, yet now they have even less resources to serve them. They have less places to call. We know that the agenda of the Office of Civil Rights now is not fundamentally based in so many of the protections that historically it has been.
They're not investigating claims of kids with disabilities not having the access to the education. And this is all just really hard on a list of all the other really hard things that our members are facing each and every day in their job.
Rachael West:
And I'm like, this is just the most cheerful conversation ever. So we're just going to keep going along the lines of what else, what the other consequences are of this blueprint of Project 2025. So Harsha, the Department at Ed has cut a lot of funding across many education programs. What should our members understand about what's actually happened versus what's still proposed to happen? We're seeing some changes, but what might be still coming?
Harsha Mikkilineni:
Sure. So the department has been attempting to withhold funding, I think Mary touched on this earlier, that Congress appropriates these funds. That is within Congress's right and responsibility to do so. And the federal government should use those funds to carry out its different charges.
But this administration has had a habit of withholding such funds, depending on whatever they prefer or intend, or have an objective towards. Recently, as last week, the White House announced that it would override congressional appropriations, including about $100 million for education programs, generally related to international education, foreign language, and the Government Accountability Office immediately sent a letter to congressional leaders that this action to withhold the budget is likely unauthorized.
We've seen this happen a few times. It's typically through abrupt cancellation of active grants, for example, teacher training programs, foreign language programs. HHS has also proposed major overhaul of Head Start, including funding disruptions and shifting oversight to the states.
Nothing is final yet, but it has created uncertainty in the meantime.
Aaron Chapin:
Geez. So let's stick with you then, Harsha, because we've been talking about the Department of Ed, but let's talk about the Supreme Court a little bit more. There's been a lot happening with birthright citizenship, something we've heard a lot from our members as well as members across the country. NEA has ongoing litigation regarding ICE activity and school safety. Can you walk us through where we stand right now with that area of the Supreme Court?
Harsha Mikkilineni:
Sure. There are some roses and thorns. So regarding birthright citizenship, this summer, the Supreme Court narrowly struck down the executive order that intended to eliminate birthright citizenship. The court found that the executive order was unlawful by a six to three vote, but split five to four on the actual question of constitutionality.
So five justices held that the EO's definition of citizenship could not be reconciled with the 14th Amendment of the US Constitution. So the issue is settled for now, which seems to be the case for a lot of things these days. Going to the more local level, so early in 2025, the Department of Homeland Security rescinded a long-established policy that created protected areas. These include schools, hospitals, where immigration enforcement officials would basically limit their activity unless there was an extremely compelling reason.
Understandably, once this rescission went into effect, many people, including educators in our school communities, they're worried that schools and other protected areas would be subject to immigration enforcement, and it just creates a general issue around school safety.
I'll reiterate, the most important point is that in Pennsylvania, all students, no matter what, are guaranteed the right to an education. It doesn't matter what their immigration status is. This creates some worry. So NEA joined a lawsuit seeking to restore protections. That case is ongoing. And I'll just also add that PSEA has an advisory from members who are worried about this kind of issue.
Jeff Ney:
Now, Mary, this may come as a surprise to you, but Aaron, Rachael and I, we do not have law degrees, so I know, it might become a shock. So let's go beyond the legal mechanics for a second. How do you think all of this is shaping public perception of educators right now with the public?
Mary Kusler:
So one of the things that the three of you and I have in common as well is, I also do not have a law degree, except I get to be around a lot of really smart attorneys like Harsha and the great Alice O'Brien, among others. And we know that all of this matters, right? All of this sticks in the ecosphere. These lawsuits are not coming because of people like to file lawsuits for the heck of it. They're coming because there are fundamental threats that this administration is bringing to the future of our public education system.
Just today, which will not be the day that the general PSEA membership gets this podcast, just today though, we had the release of the regulations expanding a private school voucher at the federal level. Just today, the Trump administration said they feel that this program will cost upwards of $26 billion.
That is more than if you add Title I and IDEA together. So when I look at that, if I'm a PSEA member, I'm looking and saying they don't have faith in me. They are not supporting the work that we are doing with nine out of 10 kids in America, in our public education system.
They are completely finding ways to disinvest, to make it harder to support our students with the needs they are coming to the classroom with. And we know, and I believe the three of you would know better than anyone, that it is harder and harder to not only get new educators into our classroom, but to keep our educators in the classroom working with us.
Jeff Ney:
Yeah, it absolutely is one of those things that weighs on a lot of our members' minds.
Rachael West:
So as we're talking about our members and many of them may be a little overwhelmed with the information we've been offering today, so I'm going to ask you each to just take a turn and tell us, what do you think is the most important thing for a member listening right now to understand about their rights and their protections in this moment? Is there a piece of advice you could give them? Harsha, do you want to start?
Harsha Mikkilineni:
Sure. I think it's important for PSEA members to remember that they're not in this alone. I've talked about a bunch of different battles and some wins from unions across the country, but PSEA, our bread and butter is your workplace rights. So when it comes to the issues we've talked about today, maybe we're not going to be able to solve everything, but we are going to be able to do what we can to maintain your rights in your school communities and as a worker.
Mary Kusler:
Yeah, I think what Harsha said is exactly correct. You are not alone. And one of the things that heartens me in this moment is every time I walk into a coalition room, every time I engage with legal teams around these fights we're having right now, the support for educators and what we are doing in this moment is palpable. They know it. They know that you all are on the front lines right now, each and every day.
And so with that, we've got to keep understanding that we're not doing it all alone. As a classroom educator, often you feel like you have to handle everything, from the runny nose to the math curriculum, to the assessment, the state assessment coming up, to the fact that your student may not have food for the weekend. That is a lot to carry. Know that a lot of other people are carrying additional around this right now and are going to be looking at, and this is part of the power of the labor movement and the power of PSEA.
Being in a labor union is going to make sure that we are protecting your rights. We are making sure you have everything you need to advocate for your students and for your community. And that is truly the power of the collective action of the union.
Aaron Chapin:
Yeah. Well said. Well, so as we look ahead, this question's going to be for both of you as we finish things out today, what should our members be watching for in the coming months? What are the cases or decisions that could really change the picture? So Mary, let's start with you and then we'll go to Harsha.
Mary Kusler:
Well, I think if we step back and think about some of the fundamental rights of this country, the right to a free and fair election, the right to a strong, robust civil society, the right to the free media and the First Amendment and being able to talk about so many issues in our society without that clampdown and stopping media, like we just saw with limiting access to what media outlets could be in the White House.
This all has the potential to continue to ramp up. Threats on these fundamental concepts. We have been talking about threats on public education. We have been talking about threats to our immigrant students, but threats to the foundations of these underpinnings of our democracy and our country could be coming as we go through these next couple of months. And you should expect that as those threats ramp up, they're not going to go unchallenged.
The legal and advocacy elements are going to continue to do the incredible work in the courtroom, and we're going to do incredible work in community across labor, across CSEA, across the NEA enterprise, and across labor and in our communities with the faith community and our veterans and our small businesses, to make sure that we are standing up and not letting these challenges and our core principles go unchecked.
Aaron Chapin:
Harsha, what about you?
Harsha Mikkilineni:
I think Mary said it all. I'll just add that much of these issues are occurring at the federal level and the state often has different protections. It's often in conflict. So they might make a decision up there that the state sees differently. And so everything's in flux and because everything's constantly changing, members should just continue to do what they're doing, what they know best and ultimately raise an issue where you see it, of course. But we've seen through a lot of the litigation that pushback can cause them to claw back whatever they try to do and that will continue to happen.
Aaron Chapin:
Great advice. Well, thank you very much. It's going to do it for our time today. Our guests have been Harsha Mikkilineni and Mary Kusler. Thank you very much for joining us today and try to make sense of the really complicated legal landscape that's going on, and for the work that both of you are doing to protect our members as well as our students. So Harsha, thank you very much for everything you've been doing over the last couple years.
Harsha Mikkilineni:
Thanks. Thanks for having me.
Aaron Chapin:
Mary, maybe you could work a little harder.
Mary Kusler:
Well, clearly I know I need to go get that law degree now.
Aaron Chapin:
Yeah, seriously. Thanks for all that you do down there in DC. I know it's a tough landscape right now. It's tough to navigate those waters. Thank you very much.
Mary Kusler:
Absolutely. It was great being with y'all again.
Aaron Chapin:
Are you going to be on the three o'clock meeting today?
Mary Kusler:
No, that is not for me.
Aaron Chapin:
You were not invited. Oh, lucky you.
Mary Kusler:
Have fun.
Aaron Chapin:
Yeah, that's right. Hey, thanks to all of our listeners for tuning in today. You got feedback for us? Maybe you want legal advice from Harsha. Are you able to provide legal advice to our members?
Harsha Mikkilineni:
That's on a case by case basis.
Rachael West:
Solid answer.
Aaron Chapin:
Wow.
Jeff Ney:
Way to lawyer that one up.
Aaron Chapin:
Hey, well, you all know the address. It's podcast@psea.org. Maybe you'd like Harsha's email address.
Jeff Ney:
Now I told you, that'd be fun.
Aaron Chapin:
That'd be a long one to spell out anyway.
Rachael West:
Sure.
Aaron Chapin:
Yeah. Well, you got to send us an email at podcast@psea.org. I'm Aaron Chapin.
Jeff Ney:
I'm Jeff Ney.
Rachael West:
And I'm Rachael West.
Aaron Chapin:
And you have been listening to Duty Free Lunch. Bye for now.
Voiceover:
You've been listening to Duty Free Lunch with the Pennsylvania State Education Association. Visit psea.org/podcast to learn more, and don't forget to subscribe and share. Paid for by the Pennsylvania State Education Association.