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JOHN T. AFFELDT (SBN 154430) JENNY PEARLMAN (SBN 224879)

2 TARA KINI (SBN 239093) PUBLIC ADVOCATES, INC.

3 131 Steuart Street, Suite 300

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San Francisco, California 94105 Tel. (415) 431-7430; Fax (415) 431-1048

5 Email: jaffeldt@publicadvocates.org jpearlman@publicadvocates.org

6

tkini@publicadvocates.org

7 Attorneys for PLAINTIFFS 8 (Additional attorneys listed on following page)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

12 SONYA RENEE; CANDICE JOHNSON, a minor, by Case No. 3:07-cv-04299-PJH
13 Sonya Renee, her guardian ad litem; MARIBEL

HEREDIA; JOSE ALDANA, a minor, by Maribel 14 Heredia, his guardian ad litem; N. DOE; B. DOE, a

15 minor, by N. Doe, her guardian ad litem; MARIEL RUBIO; DANIELLE RUBIO, a minor, by Mariel

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE

16 Rubio, her guardian ad litem; STEPHANIE RUBIO, a RELIEF

minor, by Mariel Rubio, her guardian ad litem; 17 GUADALUPE GONZALEZ; DAISY GONZALEZ, a

18 minor, by Guadalupe Gonzalez, her guardian ad litem; [ADMINISTRATIVE PROCEDURE ACT JAZMINE JOHNSON, a minor, by Deanna Bolden, her CASE]

19 guardian ad litem; ADRIANA RAMIREZ, a minor, by

Arcelia Trinidad Ramirez, her guardian ad litem; JANE 20 DOE, a minor, by John Doe, her guardian ad litem;

21 CALIFORNIANS FOR JUSTICE EDUCATION FUND; CALIFORNIA ASSOCIATION OF

22 COMMUNITY ORGANIZATIONS FOR REFORM

NOW, 23

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Plaintiffs,

v.

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MARGARET SPELLINGS, in her official capacity; UNITED STATES DEPARTMENT OF EDUCATION,

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Defendants.

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FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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JEFFREY SIMES (NY SRN 2813533), appearing pro hac vice GOODWIN PROCTER LLP

2 599 Lexington Avenue New York, New York 10022

3 Tel: (212) 813-8879

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Fax: (212) 355-3333 Email: jsimes@goodwinprocter.com

5 PATRICK THOMPSON (SBN 160804)
6 NICOLE E. PERROTON (SBN 233121) ELIZABETH F. STONE (SBN 239285)
7 GOODWIN PROCTER LLP 8 101 California Street # 1850
San Francisco, California 94111 9 Tel: (415) 733-6000
Fax: (415) 677-9041 10 Email: pthompson@goodwinprocter.com

11 DAVID B. COOK (DC BN 113522), appearing pro hac vice
12 GOODWIN PROCTER LLP 901 New York Avenue, N.W.
13 Washington, D.C. 20001 14 Tel: (202) 346-4000
Fax: (202) 346-4444 15 Email: dcook@goodwinprocter.com

16 Attorneys for PLAINTIFFS

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INTRODUCTION

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1. This action challenges Defendant U.S. Department of Education’s (“ED”) and

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Defendant Secretary of Education Margaret Spellings’s (“Secretary Spellings”) (together

5

“Defendants”) regulation implementing the “highly qualified” teacher provisions of the No Child

6 Left Behind Act (“NCLB” or “the Act”). The regulation eviscerates Congress’s explicit standard
7
for the “highly qualified” teacher owed every student by relabeling over 10,000 novice teachers 8

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still in training in California and tens of thousands of such teachers nationwide as “highly

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qualified.” Congress expressly mandated that only teachers that have completed their teacher

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preparation programs and have received full state certification are to be deemed “highly qualified.”

12 Defendants’ regulation countermands this clear directive by designating teachers who are merely
13 participating in alternative preparation routes as “highly qualified.” Over a dozen different
14

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provisions of NCLB operate independently and in tandem to ensure ultimately, that a “highly

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qualified” teacher, who has received full state certification, teaches every core academic course for

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all students in the country. Defendants’ actions in evading this critical Congressional standard by

18 regulatory fiat has undermined the promise of No Child Left Behind for plaintiffs, for hundreds of
19 thousands of California public school students, and for the nation as a whole.
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2. NCLB serves as the current foundation for federal education policy. The ultimate goal

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of NCLB is for all students to attain proficiency in reading and math by 2014. In turn, NCLB’s

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“highly qualified teacher” provisions are intended to ensure that students have teachers who will

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enable them to reach this goal. As Secretary of Education Margaret Spellings has stated, “[The

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NCLB] recognizes that teacher quality is one of the most important factors in improving student 26

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achievement and eliminating [] achievement gaps.” Exhibit 1, Letter from Margaret Spellings to

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Chief State School Officers (Oct. 21, 2005), available at

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http://www.ed.gov/policy/elsec/guid/secletter/o51021.html.

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3. Accordingly, NCLB contains numerous provisions relating to “highly qualified”

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teachers. Underlying all provisions are NCLB’s mandates that every child be taught by a “highly

5 qualified” teacher in his or her core classes and that poor and minority students not be taught by
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inexperienced, non-“highly qualified” teachers at higher rates than other students. To meet these 7

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mandates, the Act requires that every state and local school district develop plans to deliver

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“highly qualified” teachers in all core academic classes and to provide for equitable distribution of

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these teachers.

11 4. The Act also sets forth several reporting requirements to ensure that parents, students,
12 policy makers, and the public have accurate information regarding the numbers and distribution of
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“highly qualified” teachers. Schools receiving Title I funds must inform individual parents when a

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non-“highly qualified” teacher teaches his/her child for more than four weeks. Moreover, every

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year, states and school districts are required to report to the public accurate information regarding

17 the progress that schools, districts, and states are making towards meeting NCLB’s “highly
18 qualified” requirements and the numbers of teachers who are not “highly qualified.” States, in
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turn, must provide this information to the U.S. Department of Education, which then reports to

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Congress the nationwide statistics on “highly qualified” teachers.

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5. Defendants’ conduct, in undermining the standard of a “highly qualified” teacher,

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contravenes the Congressional mandates that all students receive “highly qualified” teachers and

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that non-“highly qualified” teachers are distributed equitably. In addition, Defendants’ regulation 25

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frustrates Congress’s intent that schools, districts, and states provide relevant, meaningful

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information concerning the experience and qualifications of the teachers of the nation’s children.

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6. The text of NCLB defines the term “highly qualified” teacher as a teacher who “has

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obtained full State certification. . . or passed the State teacher licensing examination and holds a

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license to teach. . . .” 20 U.S.C. § 7801(23)(A)(i). Defendants’ regulation, however, flouts the

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letter and spirit of the Act by deeming as “highly qualified” those teachers who are still

5 “participating in an alternative route to certification” (34 C.F.R. § 200.56(a)(2)(ii) (emphasis
6
added)) and who have not yet obtained their full teaching credential. Congress did not intend that 7

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an individual with no prior training in how to teach would be labeled “highly qualified” on her first

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day in the classroom merely because she is “participating” in an alternative route to certification.

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Yet Defendants’ regulation permits individual schools, school districts, and states to present these

11 untrained teachers as “highly qualified” to parents, students, policy makers, and the public.
12 7. The burden of Defendants’ conduct falls hardest on those served least by the
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educational system. A disproportionate number of teachers still in training whom Defendants

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mischaracterize as “highly qualified” teach in schools with a preponderance of poor and/or

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minority students. Defendants’ regulation labeling “intern” teachers as “highly qualified” makes a

17 mockery of Congress’s mandate to ensure that poor and minority students are not more likely than
18 their more affluent, white peers to be taught by inexperienced, non-“highly qualified” teachers. By
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allowing schools, districts, and states to mask the true picture of teacher qualifications, these

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entities may continue disproportionately to place untrained, inexperienced teachers in schools

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serving large numbers of poor and minority students, without consequence.

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8. States such as California have relied heavily on Defendants’ watered-down definition,

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and labeled thousands of current teachers who are merely participating in “alternative route[s] to 25

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certification” as “highly qualified.” In California, these teachers—still on the road to full state

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certification—are most commonly in university or district-based intern programs and are known

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generically as intern teachers. Intern teachers in California are disproportionately assigned to

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teach in low-performing schools serving high numbers of low-income and minority students.

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9. Student Plaintiffs Candice Johnson, Jose Aldana, B. Doe, Danielle Rubio, Stephanie

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Rubio, Daisy Gonzalez, Jazmine Johnson, Adriana Ramirez, and Jane Doe, along with members of

5 organizational Plaintiffs Californians for Justice (“CFJ”) and California ACORN, attend schools in
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which they are taught by an intern teacher and/or have been taught by an intern and/or in which 7

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there are significant numbers of interns creating a substantial likelihood that they will be taught by

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intern teachers again. Defendants’ regulation, undermining the standard for “highly qualified”

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teachers, permits the continued concentration of intern teachers at the schools Plaintiffs and their

11 members attend and deprives the public and parents—including parent Plaintiffs Sonya Renee,
12 Maribel Heredia, N. Doe, Mariel Rubio, and Guadalupe Gonzalez—of accurate information about
13

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non-“highly qualified” teachers teaching in their schools and school districts. Moreover, the

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misrepresentation and misreporting of “highly qualified” teachers permitted by Defendants’

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regulation frustrates CFJ’s and ACORN’s efforts to provide access to qualified teachers for all

17 students.
18 10. For these reasons, as described more fully below, Defendants’ regulation defining the
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term “highly qualified” teacher is arbitrary, capricious, contrary to law, and exceeds the agency’s

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scope of statutory authority in violation of the Administrative Procedure Act, 5 U.S.C. §§ 701-06.

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The regulatory provision permitting alternative preparation program participants to be considered

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“highly qualified” should be deemed null and void. Moreover, Defendants should be enjoined

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from continuing to utilize the improper regulation, whether in enforcing compliance by schools, 25

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school districts, and/or states with NCLB’s “highly qualified” teacher provisions or in applying the

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unlawful standard for “highly qualified” teachers when fulfilling Defendants’ reporting obligations

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to Congress.

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JURISDICTION

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11. This Court has jurisdiction over this action pursuant to 5 U.S.C. § 706 (actions under

5 the Administrative Procedure Act) and 28 U.S.C. § 1331 (federal question).
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12. The Court has authority to grant the relief sought pursuant to 28 U.S.C. § 2201 7

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(declaratory judgment) and 28 U.S.C. § 2202 (injunctive relief). The Court has authority to review

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the actions of Defendants and to grant the relief requested pursuant to 5 U.S.C. §§ 701-706

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(Administrative Procedure Act).

11 13. The Court has jurisdiction to award costs and attorneys’ fees pursuant to the Equal
12 Access to Justice Act, 28 U.S.C. § 2412 et seq.
13

14

VENUE

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14. Venue is proper in this judicial district under 28 U.S.C. § 1391(b) because this is a civil

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action, and a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in

17 this district. Venue is also proper under 28 U.S.C. § 1391(e) because this is a civil action in which
18 Defendant Secretary Spellings is an officer of an agency of the United States acting in her official
19

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capacity and also Defendant ED is an agency of the United States, and: (1) a substantial part of the

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events or omissions giving rise to Plaintiffs’ claims occurred in this district, and also (2) one or

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more Plaintiffs reside in this district.

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15. Individual Plaintiffs Johnson, Ramirez, and Jane Doe reside and attend school in Contra

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Costa County. Individual Plaintiffs Heredia, Aldana, N. Doe, and B. Doe reside in, and Plaintiffs 25

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Aldana and B. Doe attend school in, Alameda County. Plaintiff CFJ has an office in Oakland,

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California within the county of Alameda and has members who live in the county of Alameda and

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are adversely affected there by Defendants’ regulation. Plaintiff California ACORN has its office

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in Oakland, California within the county of Alameda and has members who live in Alameda and

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Contra Costa counties and are adversely affected there by Defendants’ regulation.

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16. Pursuant to Local Rule 3-2(d), intradistrict assignment to the San Francisco or Oakland

5 division is proper because a substantial part of the acts or omissions giving rise to this action
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occurred in the counties of Alameda and Contra Costa. 7

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PARTIES

9

Plaintiffs

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17. Plaintiff SONYA RENEE and Plaintiff CANDICE JOHNSON are residents of Los

11 Angeles County, California. Sonya Renee is a member of Plaintiff CALIFORNIA ACORN’S Los
12 Angeles chapter. Sonya Renee is the mother of four children, including daughter Candice.
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Candice is a sophomore at Washington Prep High School, in Los Angeles Unified School District

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(“LAUSD”). Pursuant to Defendants’ definition of “highly qualified” teachers, Washington Prep

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High School and LAUSD report intern teachers as “highly qualified” when responding to

17 California and NCLB teacher reporting requirements. According to a summary of teachers’
18 credentials at Washington Prep High School, obtained from the California Department of
19

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Education’s online “Dataquest” database, a true and correct copy of which is attached hereto as

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Exhibit 2 and incorporated herein by this reference, during the 2006-2007 school year, 11% of the

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teachers at Washington Prep—more than one in ten—were intern teachers. During her freshman

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year, the 2006-2007 school year, Candice had an intern teacher deemed “highly qualified”

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according to Defendants’ regulation, for English and Algebra 1. Although Washington Prep 25

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receives Title I funds, Plaintiff Sonya Renee received no notice from Washington Prep or LAUSD

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stating that Candice was being taught, during the 2006-2007 school year, by a teacher who is not

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“highly qualified.”

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18. Defendants’ regulation regarding “highly qualified” teachers adversely affects Sonya

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Renee’s and Candice Johnson’s interests by (1) allowing the continued concentration of non-

5 “highly qualified” intern teachers at Washington Prep High School and in LAUSD, (2) creating a
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substantial likelihood that Candice will be taught personally again by intern teachers whom 7

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Congress has deemed, in fact, not to be “highly qualified,” (3) depriving Sonya and Candice of the

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benefit of state and local district plans to redress the hiring and placement of non-“highly

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qualified” teachers, including interns, and (4) depriving Sonya and Candice of accurate

11 information about non-“highly qualified” teachers teaching at Candice’s school and within
12 LAUSD. Candice Johnson brings suit through her parent and guardian ad litem, Sonya Renee.
13

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19. Plaintiff MARIBEL HEREDIA and Plaintiff JOSE “Joey” ALDANA are residents of

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Alameda County, California. Maribel is the mother of two children, including son Joey. Joey is a

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first grade student at East Avenue Elementary School, in Hayward Unified School District

17 (“HUSD”). Pursuant to Defendants’ definition of “highly qualified” teachers, East Avenue
18 Elementary School and HUSD report intern teachers as “highly qualified” when responding to
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California and NCLB teacher reporting requirements. An intern teacher is assigned to teach Joey’s

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first grade class for the 2007-2008 school year.

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20. Defendants’ regulation regarding “highly qualified” teachers adversely affects Maribel

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Heredia’s and Joey Aldana’s interests by: (1) allowing Joey’s current first grade intern teacher to

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be hired and assigned to him and mislabeled as “highly qualified,” (2) depriving Maribel and Joey 25

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of the benefit of state and local district plans to redress the hiring and placement of non-“highly

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qualified” teachers, including interns, and (3) depriving Maribel and Joey of accurate information

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about non-“highly qualified” teachers teaching at Joey’s school and within HUSD. Jose “Joey”

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Aldana brings suit through his parent and guardian ad litem, Maribel Heredia.

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21. Plaintiff N. DOE and Plaintiff B. DOE are residents of Alameda County, California. B.

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Doe is the daughter of N. Doe. B. Doe is a second grade student at Longwood Elementary School,

5 in Hayward Unified School District (“HUSD”). Pursuant to Defendants’ definition of “highly
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qualified” teachers, Longwood Elementary School and HUSD report intern teachers as “highly 7

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qualified” when responding to California and NCLB teacher reporting requirements. Longwood

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Elementary receives Title I funds. An intern teacher is assigned to teach B. Doe’s second grade

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class during the 2007-2008 school year, and has been teaching B. Doe for more than four weeks.

11 Plaintiff N. Doe has received no notice from Longwood Elementary or HUSD stating that daughter
12 B. Doe is being taught, during the 2007-2008 school year, by a teacher who is not “highly
13

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qualified.”

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22. Defendants’ regulation regarding “highly qualified” teachers adversely affects N. Doe’s

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and B. Doe’s interests by: (1) allowing B. Doe’s current second grade intern teacher to be hired

17 and assigned to her and mislabeled as “highly qualified,” (2) depriving N. Doe and B. Doe of the
18 benefit of state and local district plans to redress the hiring and placement of non-“highly
19

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qualified” teachers, including interns, and (3) depriving N. Doe and B. Doe of accurate

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information about non-“highly qualified” teachers teaching at B. Doe’s school and within HUSD,

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including a letter informing N. Doe that B. Doe has been taught for four or more consecutive

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weeks by a teacher who is not “highly qualified.” B. Doe brings suit through her parent and

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guardian ad litem, N. Doe. 25

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23. Plaintiff MARIEL RUBIO and Plaintiffs DANIELLE RUBIO and STEPHANIE

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RUBIO are residents of Los Angeles County, California. Mariel is the mother of four children,

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including daughters Danielle and Stephanie. Danielle is a junior at Hawthorne High School, in

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Centinela Valley Union High School District (“CUHSD”); Stephanie is a freshman at Hawthorne.

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24. From October 2006-June 2007, Plaintiff Danielle Rubio attended Lawndale High

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School. For the 2005-2006 school year, and from September 2006-October 2006, Danielle

5 attended Hawthorne High School. On information and belief, pursuant to Defendants’ definition
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of “highly qualified” teachers, Hawthorne High School, Lawndale High School and CUHSD 7

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report intern teachers as “highly qualified” when responding to California and NCLB teacher

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reporting requirements. According to a summary of teachers’ credentials for CUHSD, obtained

10

from the California Department of Education’s online “Dataquest” database, a true and correct

11 copy of which is attached hereto as Exhibit 3 and incorporated herein by this reference, during the
12 2006-2007 school year, 11% of the teachers at Lawndale High School and 15% of the teachers at
13

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Hawthorne High School were intern teachers.

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25. During her sophomore year at Lawndale High School, the 2006-2007 school year,

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Plaintiff Danielle Rubio had an intern teacher deemed “highly qualified” according to Defendants’

17 regulation, for English and Spanish. Lawndale High School received Title I funds during the
18 2006-2007 school year. Plaintiff Mariel Rubio received no notice from Lawndale High School or
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CUHSD stating that Danielle was being taught, during the 2006-2007 school year, by a teacher

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who is not “highly qualified.” According to Dataquest, during the 2005-2006 school year, 19% of

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the teachers at Hawthorne High School—24 out of 125—were intern teachers. During her

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freshman year at Hawthorne High School, the 2005-2006 school year, Danielle had an intern

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teacher deemed “highly qualified” according to Defendants’ regulation, for Spanish. Hawthorne 25

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High School received Title I funds during the 2005-2006 school year. Plaintiff Mariel Rubio

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received no notice from Hawthorne High School or CUHSD stating that Danielle was being

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taught, during the 2005-2006 school year, by a teacher who is not “highly qualified.”

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26. Defendants’ regulation regarding “highly qualified” teachers adversely affects Mariel

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Rubio’s and Danielle Rubio’s interests by (1) allowing the continued concentration of non-“highly

5 qualified” intern teachers at Lawndale and Hawthorne High Schools and in CUHSD, (2) creating a
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substantial likelihood that Danielle will be taught personally again by intern teachers whom 7

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Congress has deemed, in fact, not to be “highly qualified,” (3) depriving Mariel and Danielle of the

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benefit of state and local district plans to redress the hiring and placement of non-“highly

10

qualified” teachers, including interns, and (4) depriving Mariel and Danielle of accurate

11 information about non-“highly qualified” teachers teaching at Lawndale and Hawthorne High
12 Schools and within CUHSD. Danielle Rubio brings suit through her parent and guardian ad litem,
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Mariel Rubio.

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27. Plaintiff STEPHANIE RUBIO is a resident of Los Angeles County, California, another

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daughter of Plaintiff Mariel Rubio. Stephanie is a freshman at Hawthorne High School, in

17 CUHSD. During the 2006-07 school year, the last year for which data are available, 15% of the
18 teachers at Hawthorne were interns. The likelihood that Stephanie will be taught by at least one
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intern teacher in one of her core classes during her remaining seven semesters of high school is

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statistically high, as she will enroll in at least five core classes during each semester.

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28. Defendants’ regulation regarding “highly qualified” teachers adversely affects

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Stephanie Rubio’s interests by (1) allowing the continued concentration of non-“highly qualified”

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intern teachers at Hawthorne High School and in CUHSD, (2) creating a substantial likelihood that 25

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Stephanie will be taught in the future by intern teachers whom Congress has deemed, in fact, not to

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be “highly qualified,” (3) depriving Stephanie of the benefit of state and local district plans to

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redress the hiring and placement of non-“highly qualified” teachers, including interns, and (4)

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depriving Stephanie and her parents of accurate information about non-“highly qualified” teachers

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teaching at her school and within CUHSD. Stephanie Rubio brings suit through her parent and

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guardian ad litem, Mariel Rubio.

5 29. Plaintiff GUADALUPE GONZALEZ and Plaintiff DAISY GONZALEZ are residents
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of Los Angeles County, California. Guadalupe Gonzalez is a member of Plaintiff CALIFORNIA 7

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ACORN’S Los Angeles chapter. Guadalupe is the mother of four children, including daughter

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Daisy. Daisy is a sophomore at New Tech High School, a small learning community within

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Jefferson High School in LAUSD. Pursuant to Defendants’ definition of “highly qualified”

11 teachers, Jefferson High School and LAUSD report intern teachers as “highly qualified” when
12 responding to California and NCLB teacher reporting requirements. According to a summary of
13

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teachers’ credentials at Jefferson High School, obtained from the California Department of

15

Education’s online “Dataquest” database, a true and correct copy of which is attached hereto as

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Exhibit 2 and incorporated herein by this reference, during the 2006-2007 school year, 12.4% of

17 the teachers at Jefferson were intern teachers who were deemed “highly qualified” according to
18 Defendants’ regulation. (Separate data for New Tech High School, which is within Jefferson High
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School, is not available from Dataquest.) The likelihood that Daisy will be taught by at least one

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intern teacher in one of her core classes during her remaining five semesters of high school is

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statistically high, as she will enroll in at least five core classes during each semester.

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30. Defendants’ regulation regarding “highly qualified” teachers adversely affects

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Guadalupe’s and Daisy Gonzalez’s interests by (1) allowing the continued concentration of non25

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“highly qualified” intern teachers at Jefferson High School and in LAUSD, (2) creating a

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substantial likelihood that Daisy will be taught in the future by intern teachers whom Congress has

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deemed, in fact, not to be “highly qualified,” (3) depriving Guadalupe and Daisy of the benefit of

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state and local district plans to redress the hiring and placement of non-“highly qualified” teachers,

3

including interns, and (4) depriving Guadalupe and Daisy of accurate information about non-

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“highly qualified” teachers teaching at Daisy’s school and within LAUSD.

5 31. Plaintiff JAZMINE JOHNSON is a resident of Contra Costa County, California. She is
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a junior at Richmond High School, in the West Contra Costa Unified School District 7

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(“WCCUSD”). Pursuant to Defendants’ regulatory standard of “highly qualified” teachers,

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Richmond High School and WCCUSD report intern teachers as “highly qualified” when

10

responding to California and NCLB teacher reporting requirements. Based on information

11 provided by WCCUSD in response to a public records request, as well as a school staff roster
12 cross-referenced with individual teachers’ credential information from the online database of the
13

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California Commission on Teacher Credentialing (true and correct copies of which are attached

15

hereto as Exhibit 4 and incorporated herein by this reference), during the 2006-2007 school year,

16

approximately 1 in 8 teachers at Richmond High School were intern teachers. During her

17 sophomore year, the 2006-2007 school year, Jazmine had an intern teacher deemed “highly
18 qualified” according to Defendants’ regulation, for English. During the 2005-2006 school year,
19

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Jazmine’s freshman year, she had intern teachers, who were deemed “highly qualified” according

21

to Defendants’ regulation, for English, Spanish, and Geography.

22

32. Defendants’ regulation regarding “highly qualified” teachers adversely affects Jazmine

23

Johnson’s interests by: (1) allowing the continued concentration of non-“highly qualified” intern

24
teachers at Richmond High School and in WCCUSD, (2) creating a substantial likelihood that 25

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Jazmine will be taught personally again by intern teachers whom Congress has deemed, in fact, not

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to be “highly qualified,” (3) depriving Jazmine of the benefit of state and local district plans to

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1

redress the hiring and placement of non-“highly qualified” teachers, including interns, and (4)

2

depriving Jazmine and her parents of accurate information about non-“highly qualified” teachers

3

teaching at her school and within WCCUSD. Jazmine Johnson brings suit through her parent and

4

guardian ad litem, Deanna Bolden.

5 33. Plaintiff ADRIANA RAMIREZ is a resident of Contra Costa County, California. Like
6
Plaintiff Jazmine Johnson, Adriana is a junior at Richmond High School, in WCCUSD. During 7

8

the 2006-2007 school year, Adriana’s sophomore year, she had intern teachers, who were deemed

9

“highly qualified” according to Defendants’ regulation, for English and Spanish.

10

34. Defendants’ regulation regarding “highly qualified” teachers adversely affects Adriana

11 Ramirez’s interests by: (1) allowing the continued concentration of non-“highly qualified” intern
12 teachers at Richmond High School and in WCCUSD, (2) creating a substantial likelihood that she
13

14

will be taught personally again by intern teachers whom Congress has deemed, in fact, not to be

15

“highly qualified,” (3) depriving Adriana of the benefit of state and local district plans to redress

16

the hiring and placement of non-“highly qualified” teachers, including interns, and (4) depriving

17 Adriana and her parents of accurate information about non-“highly qualified” teachers teaching at
18 her school and within WCCUSD. Adriana Ramirez brings suit through her parent and guardian ad
19

20

litem, Arcelia Trinidad Ramirez.

21

35. Plaintiff JANE DOE is a resident of Contra Costa County, California. Like Plaintiffs

22

Jazmine Johnson and Adriana Ramirez, Plaintiff Jane Doe is a junior at Richmond High School, in

23

WCCUSD. Jane Doe currently has an intern teacher, deemed “highly qualified” according to

24
Defendants’ regulation, teaching her Biology class for the 2007-2008 school year. During the 25

26

2006-2007 school year, Plaintiff Jane Doe’s sophomore year, one of Plaintiff Jane Doe’s two

27

English classes was taught by an intern teacher deemed “highly qualified” according to

28
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1

Defendants’ regulation. This English class focused on California’s English-Language Arts content

2

standards and was intended to help Plaintiff Doe prepare for the California High School Exit Exam

3

(“CAHSEE”), a test she must pass in order to graduate from high school. To date, Plaintiff Jane

4

Doe has been unable to pass the CAHSEE.

5 36. Defendants’ regulation regarding “highly qualified” teachers adversely affects Plaintiff
6
Jane Doe’s interests by: (1) allowing Jane Doe’s current Biology teacher, an intern, to be hired 7

8

and assigned to her and mislabeled as “highly qualified;” (2) allowing the continued concentration

9

of non-“highly qualified” intern teachers at Richmond High School and in WCCUSD; (3) creating

10

a substantial likelihood that Jane Doe will be taught personally again by intern teachers whom

11 Congress has deemed, in fact, not to be “highly qualified,” (4) depriving Jane Doe of the benefit of
12 state and local district plans to redress the hiring and placement of non-“highly qualified” teachers,
13

14

including interns, and (5) depriving Jane Doe and her parents of accurate information about non-

15

“highly qualified” teachers teaching at her school and within WCCUSD. Plaintiff Jane Doe brings

16

suit through her parent and guardian ad litem, John Doe.

17 37. Plaintiff Californians for Justice Education Fund (“CFJ”) is a non-profit, grassroots
18 membership organization dedicated to empowering youth, communities of color, and poor people.
19

20

The current primary efforts of CFJ and its members are focused on improving the educational

21

opportunities in California’s public schools for all students, including furthering an education

22

system that provides qualified and diverse teaching staff and fighting for the rights of students of

23

color, low-income students, and immigrant students and their families so that CFJ and its members

24
can achieve justice in their schools. A primary focus of CFJ’s education work has been to 25

26

mobilize public support for significant policy changes around the issue of students’ access to

27

qualified teachers. CFJ has expended funds and resources in its attempt to monitor and remedy

28
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1

teacher quality issues. Among other efforts, CFJ has supported major legislative initiatives to

2

increase students’ access to qualified teachers in California, including SB 1209 (Scott) (2006), a

3

bill which increased training and support for intern teachers and the Quality Education Investment

4

Act which, inter alia, requires participating districts to equalize the distribution of experienced,

5 qualified teachers across their schools. CFJ’s membership includes four regional networks with
6
offices in Oakland, Long Beach, Fresno, and San Jose. Overall, CFJ has a total of over 1,500 7

8

members across the state. Comprised primarily of youth from low-income communities and

9

communities of color, CFJ’s members meet bi-weekly to discuss educational issues that arise in

10

their local communities, identify issues having a statewide impact, and strategize for effective

11 solutions.
12 38. CFJ brings this action on its own behalf and on behalf of its members, including
13

14

various members who are currently taught by intern teachers. One such member is Sayra Reyes, a

15

junior at Oakland Technical High School in Oakland Unified School District, who has an intern

16

teacher teaching her Chemistry class for the 2007-2008 school year. Defendants’ regulation

17 regarding “highly qualified” teachers adversely affects CFJ’s organizational interests as well as the
18 interests of CFJ’s members, including, inter alia, Sayra Reyes. The mislabeling and misreporting
19

20

of “highly qualified” teachers permitted by Defendants’ regulation hinders CFJ’s goal of

21

improving access to qualified teachers for all students and its members’ interests in having fully

22

qualified teachers. This misreporting also deprives CFJ and its members of accurate information

23

regarding the qualifications of the teachers throughout California as well as in school districts

24
where CFJ carries out its work and/or its members reside. Moreover, Defendants’ regulation 25

26

labeling teachers participating in alternative routes as “highly qualified” perpetuates the

27

disproportionate placement of untrained, inexperienced teachers in schools serving large numbers

28
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1

of low-income and minority students, contrary to CFJ’s goals and its members’ interests. CFJ

2

works specifically on behalf of such students, and many of its members are low-income students of

3

color.

4

39. The national Association of Community Organizations for Reform Now (“ACORN”) is

5 the nation’s largest community organization of low- and moderate-income families, with more
6
than 350,000 member families, organized in 850 neighborhood chapters in over 100 cities across 7

8

the United States. Since 1970, ACORN’s priorities have included better housing, schools,

9

neighborhood safety, health care, and job conditions. Plaintiff CALIFORNIA ACORN, the

10

statewide affiliate of national ACORN, was formed in 1996 and has more than 37,000 members

11 across California. California ACORN, based in Oakland, organizes communities across the state
12 through outreach from its thirteen chapters, including Chula Vista, Contra Costa, Fresno, Long
13

14

Beach, Los Angeles, Oakland, Orange County, Sacramento, San Bernardino, San Diego, San

15

Fernando Valley, San Francisco, and San Jose. One of California ACORN’s four major current

16

campaigns is “Great Schools NOW!,” a campaign to improve the quality of public schools for

17 ACORN members and their families, including ensuring qualified teachers. California ACORN
18 has expended funds and resources in its attempts to address teacher quality issues. Among other
19

20

efforts, California ACORN has supported major legislative initiatives to increase students’ access

21

to qualified teachers in California, including SB 1209 (Scott) (2006), a bill which increased

22

training and support for intern teachers and the Quality Education Investment Act which, inter

23

alia, requires participating districts to equalize the distribution of experienced, qualified teachers

24
across their schools. In addition, California ACORN and its members have participated in 25

26

trainings on teacher quality issues, advocated for improvements in teacher quality before state

27

28
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1

legislators and other officials, and conducted and disseminated research on teacher quality issues

2

within individual school districts.

3

40. California ACORN brings this action on its own behalf and on behalf of its members,

4

including Plaintiffs Sonya Renee and Guadalupe Gonzalez. Defendants’ regulation regarding

5 “highly qualified” teachers adversely affects California ACORN’s organizational interests as well
6
as the interests of California ACORN’s members. The mislabeling and misreporting of “highly 7

8

qualified” teachers permitted by the challenged regulation hinders California ACORN’s goal of

9

improving access to qualified teachers for all students and its members’ interests in having fully

10

qualified teachers. The misreporting also deprives California ACORN and its members of

11 accurate information regarding the qualifications of the teachers throughout the state as well as in
12 school districts where California ACORN carries out its work and/or its members reside.
13

14

Moreover, Defendants’ regulation labeling teachers participating in alternative routes as “highly

15

qualified” perpetuates the disproportionate placement of untrained, inexperienced teachers in

16

schools serving large numbers of low-income and minority students, contrary to California

17 ACORN’s goals and its members’ interests. California ACORN works specifically on behalf of
18 such students and their families, and many of its members are low-income families of color.
19

20

Defendants

21

41. Defendant MARGARET SPELLINGS is the Secretary of the United States Department

22

of Education. She serves as the chief administrative officer of the Department and is responsible

23

for overseeing implementation and enforcement of NCLB, including issuing such regulations as

24
are necessary to ensure reasonably that there is compliance with the Act (20 U.S.C. §§ 6571, 25

26

6578). Secretary Spellings is sued in her official capacity.

27

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42. Defendant UNITED STATES DEPARTMENT OF EDUCATION is the federal agency

2

responsible for implementing NCLB, including issuing such regulations as are necessary to ensure

3

reasonably that there is compliance with NCLB (20 U.S.C. §§ 6571, 6578).

4

LEGAL FRAMEWORK

5 The No Child Left Behind Act
6
43. In January 2002, President Bush signed into law the No Child Left Behind Act of 2001, 7

8

Pub. L. No. 107-110, 115 Stat. 1425, a sweeping piece of legislation that serves as the current

9

foundation for federal education policy. Congress is currently considering a reauthorization of the

10

Act.

11 44. The ultimate goal of NCLB is for all students to be “proficient” in reading and math by
12 2014. 20 U.S.C. § 6311(b)(2)(F). To reach this goal, the Act requires that states test students
13

14

regularly to assess their progress, 20 U.S.C. § 6311(b)(3)(A), and that states and districts be held

15

accountable when students are not making “Adequate Yearly Progress” according to test results,

16

see 20 U.S.C. §§ 7325, 6316(b)(5). In particular, NCLB holds states accountable for closing the

17 achievement gap between low-income and minority students and their more affluent, white peers.
18 20 U.S.C. § 6311(b)(2)(B).
19

20

45. A cornerstone of NCLB’s accountability scheme is that in order for students to learn

21

and to make steady academic progress, they must be taught by “highly qualified” teachers. In a

22

letter to the nation’s chief state school officers, a true and correct copy of which is attached hereto

23

as Exhibit 1 and incorporated herein by this reference, Defendant Spellings described the

24
importance of teacher quality as follows: 25

26

On January 8, 2002, President George W. Bush and the U.S. Congress agreed to a plan to eliminate our Nation’s significant academic achievement gaps, especially in

27

mathematics and reading. This plan, embodied in the No Child Left Behind Act of 2001

28
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(NCLB), recognizes that teacher quality is one of the most important factors in improving student achievement and eliminating these achievement gaps. As a result,

2

the law set the important goal that all students be taught by a “highly qualified teacher”

(HQT) who holds at least a bachelor’s degree, has obtained full State certification, and

3

has demonstrated knowledge in the core academic subjects he or she teaches.

4

Exhibit 1, Letter from Margaret Spellings to Chief State School Officers (Oct. 21, 2005) (emphasis

5 added).
6
The NCLB’s “Highly Qualified” Teacher Requirement 7

8

46. NCLB defines the term “highly qualified” as follows:

9

(i) the teacher has obtained full State certification as a teacher (including certification

obtained through alternative routes to certification) or passed the State teacher licensing

10

examination, and holds a license to teach in such State, except that when used with

11

respect to any teacher teaching in a public charter school, the term means that the

teacher meets the requirements set forth in the State’s public charter school law; and

12

(ii) the teacher has not had certification or licensure requirements waived on an

13

emergency, temporary, or provisional basis.

14 20 U.S.C. § 7801(23)(A).
15 47. Under NCLB, states must satisfy minimum qualifications for new and current teachers.
16

17

Beginning with the 2002-03 school year, all new teachers hired in schools with low-income

18

students receiving federal Title I funds were to be “highly qualified.” 20 U.S.C. § 6319(a)(1-2).

19

By the end of the 2005-06 school year, all students were to be taught by “highly qualified”

20 teachers in core academic classes. 20 U.S.C. § 6319(a)(2). “Core academic subjects” are English,

21 reading or language arts, mathematics, science, foreign languages, civics and government,
22

23

economics, arts, history, and geography. 34 C.F.R. § 200.55(c).

24

48. During the time it takes to provide all students with “highly qualified” teachers in core

25

academic classes, NCLB further mandates that teachers who are not “highly qualified” may not be

26

27

28
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1

disproportionately concentrated in schools with high percentages of low-income and minority

2

students. 20 U.S.C. § 6311(b)(8)(C).

3

49. To ensure that the states make progress toward the goal of providing all students with

4

“highly qualified” teachers, NCLB also requires that:

5 a. States establish a statewide plan for carrying out activities to make sure that
6
students are taught by “highly qualified” teachers, “including steps the State 7

8

educational agency will take to ensure that poor and minority children are

9

not taught at higher rates than other children by inexperienced, unqualified,

10

or out-of-field teachers, and the measures that the State educational agency

11 will use to evaluate and publicly report the progress of the State educational
12 agency with respect to such steps.” 20 U.S.C. §§ 6311(b)(8)(C), 6319(a)(2).
13

14

b. States seeking Title I money must submit a detailed plan as to how the state

15

will ensure that schools receiving Title I funding will provide “highly

16

qualified” instructional staff. See 20 U.S.C. §§ 6311(a)(1), 6311(b)(8).

17 c. Each school district must establish a district-level plan for how it will meet
18 the NCLB’s mandate that all students be taught by a “highly qualified”
19

20

teacher by the end of the 2005-2006 school year, 20 U.S.C. §§

21

6312(b)(1)(N), 6319(a)(3), and provide assurances in the plan that it will

22

meet this goal, 20 U.S.C. § 6312(c)(1)(I).

23

50. Further, NCLB establishes several reporting requirements at the school, district, state,

24
and national levels to ensure parents, students, policy makers, and the public have accurate 25

26

information regarding students’ access to “highly qualified” teachers.

27

28
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1

a. Schools receiving Title I funds must provide “timely notice” to parents of a child

2

who has, for more than four consecutive weeks, been taught by a teacher who is not

3

“highly qualified.” 20 U.S.C. § 6311(h)(6)(B)(ii).

4

b. Districts must prepare and publicly disseminate an “annual report card” that

5 includes district-level data regarding (i) the percentage of teachers teaching with
6
emergency or provisional credentials, and (ii) the percentage of classes not taught 7

8

by “highly qualified” teachers, in the aggregate and disaggregated by high-poverty

9

compared to low-poverty schools. 20 U.S.C. § 6311(h)(2).

10

c. Districts must also report to the public annually district- and school-level data

11 regarding progress made towards meeting the “highly qualified” teacher goal. 20
12 U.S.C. § 6319(b)(1)(A).
13

14

d. States must prepare an “annual state report card” that includes state-level data

15

regarding: (i) the percentage of teachers teaching with emergency or provisional

16

credentials, and (ii) the percentage of classes not taught by “highly qualified”

17 teachers, in the aggregate and disaggregated by high-poverty compared to low-
18 poverty schools. 20 U.S.C. § 6311(h)(1)(C).
19

20

e. States must submit annual reports to the U.S. Secretary of Education on “the quality

21

of teachers and the percentage of classes taught by highly qualified teachers in the

22

State, local educational agency, and school,” (20 U.S.C. § 6311(h)(4)(G)), and

23

make this report “widely available within the State,” (id.). This report must include

24
data regarding progress made towards meeting the “highly qualified” teacher goal. 25

26

20 U.S.C. § 6319(b)(1)(B).

27

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1

f. The Secretary of Education annually must submit a report to Congress that presents

2

national- and State-level data regarding “the quality of teachers and the percentage

3

of classes taught by highly qualified teachers.” 20 U.S.C. § 6311(h)(4)-(5).

4

51. Not a single state met the deadline for ensuring that all students are taught by a “highly

5 qualified” teacher in their core classes by the end of the 2005-2006 school year. See Exhibit 10,
6
Letter from Margaret Spellings to Chief State School Officers (July 23, 2007), available at 7

8

http://www.ed.gov/policy/elsec/guid/secletter/070723.html. In October 2005, Defendant

9

Spellings, on a state-by-state basis, extended until the end of the 2006-2007 school year the

10

deadline by when all students were to be taught by a “highly qualified” teacher in their core

11 classes. See Exhibit 1, Letter from Margaret Spellings to Chief State School Officers (Oct. 21,
12 2005).
13

14

52. In order to receive an extension, states were required to demonstrate a “good faith

15

effort” to reach the “highly qualified” teacher goal and submit a revised state plan for meeting the

16

goal by the end of 2006-2007. Defendants analyzed four elements in deciding whether to grant

17 individual state extensions: (1) the State’s definition of a “highly qualified teacher,” (2) how the
18 State reports to parents and the public on classes taught by “highly qualified” teachers, (3) the
19

20

completeness and accuracy of “highly qualified” teacher data reported to the U.S. Department of

21

Education, and (4) the steps the State has taken to ensure that experienced and qualified teachers

22

are equitably distributed among classrooms with poor and minority children and those with their

23

peers. Exhibit 1, Letter from Margaret Spellings to Chief State School Officers (Oct. 21, 2005).

24
53. According to a press release issued by Defendants on August 16, 2006, a true and 25

26

correct copy of which is attached hereto as Exhibit 5 and incorporated herein by this reference, all

27

50 states—plus the District of Columbia and Puerto Rico—received extensions, including

28
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1

California. Exhibit 5, U.S. Department of Education Releases Results of State Plans for Highly

2

Qualified Teachers in Every Classroom (Aug. 16, 2006), available at

3

http://www.ed.gov/teachers/nclbguide/improve-quality.html.

4

54. To date, it is unclear if any state has met the 2006-2007 extended deadline. On July 23,

5 2007, Defendant Secretary Spellings issued a letter to Chief State School Officers informing them
6
that “[i]n the fall, we will also begin a new round of monitoring in all States; this monitoring will 7

8

focus intensively on State implementation of the HQT plans. . . .” Exhibit 10, Letter from

9

Margaret Spellings to Chief State School Officers (July 23, 2007), available at

10

http://www.ed.gov/policy/elsec/guid/secletter/070723.html. In this letter, the Secretary assured

11 States that they would not be sanctioned for failing to meet the 100% “highly qualified teacher”
12 extended 2006-2007 deadline:
13

14

. . . I intend to maintain the policy of not penalizing States financially solely because

they have not reached 100 percent HQT. In the course of monitoring, however, if the

15

Department finds that any particular State is not making an adequate effort to reach the

goal of having all core academic classes taught by highly qualified teachers, the

16

Department may take appropriate actions. Such actions may include, but are not

17

limited to, imposition of grant conditions or high-risk status, compliance agreements, or

withholding of funds. All decisions about sanctions will be made on a case-by-case

18

basis, taking the circumstances of and conditions in individual States into account.

19

55. To date, no state has been sanctioned for failing to meet the “highly qualified teacher”

20 (“HQT”) goal. The Secretary’s letter notes that, as of July 23, 2007, one state still did not have an

21 approved “HQT” plan setting forth the actions the State and districts would take to reach the HQT
22

23

goal by the end of the 2006-2007 school year—nearly one year after the Department first requested

24

additional revisions and one month after the 2006-2007 school year had ended. On information

25

and belief, Defendants have not sanctioned this state for failing to submit, by the end of the 2006-

26

27

28
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1

2007 school year, a valid plan setting forth the actions the State and districts would take to reach

2

the HQT goal by the end of the 2006-2007 school year.

3

56. Although data is not yet available for the 2006-2007 school year, Secretary Spellings’s

4

correspondence, dated July 23, 2007, suggests that the Department anticipates that most, if not all

5 states, were unable to meet the goal of having “highly qualified” teachers in all core classes by the
6
2006-2007 extended deadline, and unlikely will meet this goal in the near future. Thus, the many 7

8

other NCLB provisions relating to “highly qualified” teachers are even more important. Indeed, it

9

is essential that states and districts establish real plans for ensuring that all students are taught by

10

“highly qualified” teachers and that poor and minority children are not disproportionately taught

11 by non-“highly qualified” teachers. It is also just as important that accurate information on
12 students’ access to “highly qualified” teachers be reported to parents, students, policymakers, and
13

14

the public.

15

FACTUAL ALLEGATIONS

16

Defendants’ Regulatory Definition of “Highly Qualified” Teacher Conflicts With NCLB

17 57. On December 2, 2002, then Secretary of Education Rod Paige issued final regulations,
18 which became effective January 2, 2003, defining the term “highly qualified teacher.” These
19

20

regulations conflict with NCLB’s statutory definition of “highly qualified” teacher. Specifically,

21

the regulations provide:

22

(a) In general

23

(1) Except as provided in paragraph (a)(3) of this section, a teacher covered under § 200.55 must –

24

i. Have obtained full State certification as a teacher, which may include

certification obtained through alternative routes to certification; or

25

ii. (A) Have passed the State teacher licensing examination; and (B) Hold a

26

license to teach in the State. (2) A teacher meets the requirement in paragraph (a)(1) of this section if the teacher –

27

28
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1

i. Has fulfilled the State’s certification and licensure requirements applicable to the years of experience the teacher possesses; or

2

ii. Is participating in an alternative route to certification program under

which –

3

(A) The teacher –

4

(1) Receives high-quality professional development that is sustained, intensive, and classroom-focused in order to

5

have a positive and lasting impact on classroom instruction,

before and while teaching;

6

(2) Participates in a program of intensive supervision that

consists of structured guidance and regular ongoing support

7

for teachers or a teacher mentoring program;

8

(3) Assumes functions as a teacher only for a specified

period of time not to exceed three years; and

9

(4) Demonstrates satisfactory progress toward full

certification as prescribed by the State; and

10

(B) The State ensures, through its certification and licensure

11

process, that the provisions in paragraph (a)(2)(ii) of this section

are met.

12

(3) A teacher teaching in a public charter school in a State must meet the certification

and licensure requirements, if any, contained in the State’s charter school law.

13

(4) If a teacher has had certification or licensure requirements waived on an emergency,

14

temporary, or provisional basis, the teacher is not highly qualified.

15

34 C.F.R. § 200.56(a) (emphasis added).

16

58. Although the NCLB statute defines a “highly qualified” teacher as one who “has

17 obtained full State certification as a teacher (including certification obtained through alternative
18 routes to certification) or passed the State teacher licensing examination, and holds a license to
19

20

teach in such State,” (20 U.S.C. § 7801(23)(A)(i) (emphasis added)), Defendants’ regulation also

21

includes as “highly qualified” teachers those individuals who are merely “participating in an

22

alternative route to certification program” and who have not yet completed full state certification,

23

(34 C.F.R. § 200.56(a)(2)(ii) (emphasis added)).

24
59. NCLB also provides that any teacher who has “had certification or licensure 25

26

requirements waived on an emergency, temporary, or provisional basis” may not be considered

27

28
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1

“highly qualified.” 20 U.S.C. § 7801(23)(A)(ii). Contrary to this statutory provision, Defendants’

2

regulation permits “participant[s] in an alternative route to certification program” (34 C.F.R.

3

§200.56(a)(2)(ii)) who are serving on a provisional basis “not to exceed three years” (id.) to satisfy

4

the definition of “highly qualified.”

5 California Has Implemented Defendants’ Unlawful Regulation
6
60. The California State Board of Education has adopted “highly qualified” teacher 7

8

regulations in order to implement NCLB in California. In doing so, the California State Board of

9

Education has taken full advantage of the scope of Defendants’ “highly qualified” teacher

10

regulations and, as such, has deemed intern teachers in California to constitute “highly qualified”

11 teachers for purposes of NCLB for as long as three years. See 5 C.C.R. §§ 6101, 6110.
12 Effect of Defendants’ Unlawful Regulation
13

14

61. As a result of Defendants’ regulation permitting teachers participating in alternative

15

certification programs to be deemed “highly qualified” (as opposed to only those alternative route

16

teachers who have completed their programs):

17 a. states and school districts are able to skirt NCLB’s provisions by hiring and then
18 not prohibiting the concentration of non-“highly qualified” teachers in schools
19

20

serving large numbers of poor and minority students (see 20 U.S.C. §§

21

6311(b)(8)(C), 6319(a)(2);

22

b. schools receiving Title I funds do not have to inform parents when their child is

23

taught for more than four consecutive weeks by an intern or other alternative route

24
teacher even though that teacher does not have a full state credential (see 20 U.S.C. 25

26

§ 6311(h)(6(B)(ii));

27

28
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1

c. states’ plans regarding how they will meet NCLB’s mandates for “highly qualified”

2

teachers are based on inaccurate data and improper premises where teachers

3

participating in alternative routes are counted as “highly qualified” teachers (see 20

4

U.S.C. §§ 6311(b)(8)(C), 6319(a)(2), 6311(a)(1), 6311(b)(8));

5 d. school districts’ plans regarding how they will meet NCLB’s mandates for “highly
6
qualified” teachers are based on inaccurate data and improper premises where 7

8

teachers participating in alternative routes are counted as “highly qualified”

9

teachers (see 20 U.S.C. §§ 312(b)(1)(N), 6319(a)(3), 6312(c)(1)(1));

10

e. states’ annual report cards and annual reports containing information on the

11 percentages of classes being taught by “highly qualified” teachers misreport such
12 percentages where teachers participating in alternative routes are counted as “highly
13

14

qualified” teachers (see 20 U.S.C. §§ 6311(h)(1)(C), 6319(b)(1)(B));

15

f. school districts’ annual report cards and annual reports regarding “highly qualified”

16

teachers in the districts misreport such percentages where teachers participating in

17 alternative routes are counted as “highly qualified” teachers (see 20 U.S.C. §§
18 6311(h)(2), 6319(b)(1)(A)); and
19

20

g. the U.S. Secretary of Education’s annual report to Congress with national- and

21

state-level data regarding “the quality of teachers and the percentage of classes

22

taught by highly qualified teachers,” (20 U.S.C. § 6311(h)(4)-(5)), is based on

23

inaccurate, inflated numbers regarding the number of “highly qualified” teachers as

24
states and school districts are labeling teachers participating in alternative 25

26

certification programs as “highly qualified” in accord with Defendants’ improper

27

regulation.

28
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1

62. Nationally, an estimated 59,000 individuals obtained their teaching credentials in 2005-

2

2006 through alternative route certification programs. See Emily Feistritzer, Alternative Teacher

3

Certification: A State-by-State Analysis, Introduction (National Center for Alternative Certification

4

2007), available at http://www.teach-now.org/intro.cfm. On information and belief, pursuant to

5 Defendants’ unlawful regulation, these 59,000 individuals were mislabeled as “highly qualified”
6
while participating in alternative route to certification programs. 7

8

63. The effect of Defendants’ regulation defining participants in “alternative route[s] to

9

certification” as “highly qualified” is particularly dramatic in California. Since Defendants issued

10

the challenged regulation in 2002, the number of intern teachers in California has risen by

11 approximately 50%. According to a statewide summary of teachers’ credentials obtained from the
12 California Department of Education’s online “Dataquest” database, a true and correct copy of
13

14

which is attached hereto as Exhibit 6 and incorporated herein by this reference, in 2001-2002 when

15

NCLB was initially adopted, 7,251 California teachers served on university and district intern

16

credentials. According to the statewide summary report for 2006-2007, a true and correct copy of

17 which is attached hereto as Exhibit 7 and incorporated herein by this reference, by 2006-2007 the
18 number of university and district interns increased by approximately 50% to a total of 10,716, all
19

20

of whom are considered “highly qualified.” This significant increase in the number of intern

21

teachers in California has coincided with a significant decrease in the number of emergency-

22

credentialed teachers, who are not considered “highly qualified” under the NCLB or its

23

implementing regulations. See Center for the Future of Teaching and Learning, The Status of the

24
Teaching Profession 2005, at 31, available at 25

26

http://www.cftl.org/documents/2005/stp05fullreport.pdf.

27

28
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1

64. This increase in the number of interns in California has been visited precisely upon the

2

very students for whom Congress has taken special care to ensure access to “highly qualified”

3

teachers. In California, low-income and minority students are disproportionately taught by intern

4

teachers, when compared with their more affluent, white peers. Forty-four percent (44%) of all

5 interns are placed in schools serving the highest proportion of minority students, while only 7% of
6
interns serve in schools serving the lowest proportion of minority students. See Center for the 7

8

Future of Teaching and Learning, Teaching and California’s Future: California’s Teaching Force

9

2006, at 21, available at http://www.cftl.org/documents/2006/TCF2006FINAL.pdf.

10

65. The distribution of intern teachers by school achievement shows a similar pattern in

11 California. Fifty-eight percent of interns teach in schools that fall in the lowest achievement
12 quartile on California’s Academic Performance Index (“API”), while only 6% teach in schools in
13

14

the highest achievement quartile. See Center for the Future of Teaching and Learning, The Status

15

of the Teaching Profession 2005, at 73.

16

66. Plaintiff Candice Johnson, daughter of Plaintiff Sonya Renee, attends Washington Prep

17 High School, a low-performing school in Los Angeles Unified School District (“LAUSD”) with a
18 student population comprised primarily of low-income minority students. Washington Prep is
19

20

ranked “1” on California’s Academic Performance Index (“API”), which means it is among the

21

bottom 10% of schools in California in terms of academic achievement. It is a Year 5 “Program

22

Improvement” school under NCLB, which means it has failed to meet Adequate Yearly Progress

23

(“AYP”) benchmarks and must implement additional services and interventions to increase student

24
achievement. Nearly all of the students at Washington Prep are African-American or Latino. 25

26

Two-thirds of the students qualify for the free or reduced price school lunch program, the indicator

27

typically used to determine the socioeconomic status of a public school population. During the

28
29

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1

2006-2007 school year, 11% of teachers at Washington Prep High School were “intern” teachers.

2

See Exhibit 2. Defendants—as well as the State of California and LAUSD—labeled these interns

3

as “highly qualified” even though they were still in training to obtain their full California teaching

4

credential.

5 67. Plaintiff B. Doe, daughter of Plaintiff N. Doe, attends Longwood Elementary School, a
6
low-performing school in HUSD with a student population comprised primarily of low-income 7

8

minority students. Longwood Elementary is ranked a “2” on the API. It is a Year 2 “Program

9

Improvement” school under NCLB. Ninety-three percent of the students at Longwood are

10

students of color. Over three-quarters qualify for free or reduced price lunch. During the 2006-

11 2007 school year, 3% of teachers at Longwood were “intern” teachers; data for the 2007-2008
12 school year are not yet available. See Exhibit 11. Defendants—as well as the State of California
13

14

and HUSD—labeled these interns as “highly qualified” even though they are still in training to

15

obtain their full California teaching credential.

16

68. Plaintiffs Danielle Rubio and Stephanie Rubio, daughters of Plaintiff Mariel Rubio,

17 attend Hawthorne High School in CUHSD, a low-performing school with a student population
18 comprised primarily of low-income minority students. Hawthorne is ranked “2” on California’s
19

20

API. It is a Year 5 “Program Improvement” school under NCLB. Over 90% of the students at

21

Hawthorne are African-American or Latino. Over two-thirds of students qualify for the free or

22

reduced price school lunch program. During the 2006-2007 school year, 15% of teachers at

23

Hawthorne High School were “intern” teachers; data for the 2007-2008 school year are not yet

24
available. See Exhibit 3. Defendants—as well as the State of California and CUHSD—labeled 25

26

these interns as “highly qualified” even though they were still in training to obtain their full

27

California teaching credential.

28
30

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1

69. During most of the 2006-2007 school year, Plaintiff Danielle Rubio attended Lawndale

2

High School in CUHSD. Over 90% of Lawndale students are students of color. Nearly two-thirds

3

qualify for the free or reduced price school lunch program. During the 2006-2007 school year,

4

11% of teachers at Lawndale High School were “intern” teachers. See Exhibit 3. Defendants—as

5 well as the State of California and CUHSD—labeled these interns as “highly qualified” even
6
though they were still in training to obtain their full California teaching credential. 7

8

70. Plaintiff Daisy Gonzalez, daughter of Plaintiff Guadalupe Gonzalez, attends New Tech

9

High School, a small learning community within Jefferson High School in LAUSD, a low-

10

performing school with a student population comprised primarily of low-income minority students.

11 (Separate data for New Tech High School, which is within Jefferson High School, is not available
12 from the California Department of Education’s “Dataquest” database.) Jefferson is ranked “1” on
13

14

California’s API. It is a Year 5 “Program Improvement” school under NCLB. Nearly all of the

15

students at Jefferson are African-American or Latino. Eighty-six percent of the students qualify

16

for the free or reduced price school lunch program. During the 2006-2007 school year, 12.4% of

17 teachers at Jefferson High School were “intern” teachers. See Exhibit 2. Defendants—as well as
18 the State of California and LAUSD—labeled these interns as “highly qualified” even though they
19

20

were still in training to obtain their full California teaching credential.

21

71. Plaintiffs Jazmine Johnson, Adriana Ramirez, and Jane Doe attend Richmond High

22

School, a low-performing school in WCCUSD with a student population comprised primarily of

23

low-income minority students. Richmond High School is ranked as a “1” on the API. It is a Year

24
5 “Program Improvement” school under NCLB. Ninety-seven percent of the students at 25

26

Richmond High School are students of color. Nearly three-quarters qualify for the free or reduced

27

price school lunch program. During the 2006-2007 school year, at least one in eight teachers at

28
31

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1

Richmond High School was an “intern” teacher. See Exhibit 4. Defendants—as well as the State

2

of California and WCCUSD—labeled these interns as “highly qualified” even though they were

3

still in training to obtain their full California teaching credential.

4

72. Plaintiff CFJ’s members attend schools in districts with large numbers of intern

5 teachers who are mislabeled as “highly qualified” under Defendants’ regulation. For example,
6
according to a district summary of teachers’ credentials, obtained from the California Department 7

8

of Education’s online “Dataquest” database, a true and correct copy of which is attached hereto as

9

Exhibit 8 and incorporated herein by this reference, in the Oakland Unified School District—

10

where many CFJ members reside and attend school—10.7% of teachers (278 teachers total) were

11 “intern” teachers during the 2006-2007 school year. According to a district summary of teachers’
12 credentials, a true and correct copy of which is attached hereto as Exhibit 9 and incorporated
13

14

herein by this reference, in the East Side Union High School District—where many CFJ members

15

reside and attend school—9.3% of teachers (103 teachers total) were “intern” teachers during the

16

2006-07 school year.

17 73. At Oakland Technical High School (“Tech”) in OUSD, where CFJ member Sayra
18 Reyes attends school and is taught by an intern teacher, 6% of teachers were interns during the
19

20

2006-2007 school year. See Exhibit 8. Oakland Tech is ranked “2” on the API. It is a Year 3

21

“Program Improvement” school under NCLB. Over 90% of the students at Tech are students of

22

color. Nearly half qualify for the free or reduced price school lunch program. Defendants—as

23

well as the State of California and OUSD—label intern teachers at Tech “highly qualified” even

24
though they are still in training to obtain their full California teaching credential. 25

26

74. Plaintiff California ACORN’s members and/or children of members attend schools in

27

districts with large numbers of intern teachers who are mislabeled as “highly qualified” under

28
32

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1

Defendants’ regulation, such as Oakland Unified School District, East Side Union High School

2

District in San Jose and LAUSD. In LAUSD—where many California ACORN members reside

3

and attend school, including Plaintiffs Sonya Renee, Candice Johnson, Guadalupe Gonzalez, and

4

Daisy Gonzalez—7.3% of teachers, or 2,538 teachers, were “interns” during the 2006-2007 school

5 year. See Exhibit 2. LAUSD exemplifies the inequitable distribution of intern teachers, as many
6
schools in LAUSD had over 25% intern teachers during the 2006-2007 school year. See Exhibit 2. 7

8

PLAINTIFFS’ CLAIMS FOR RELIEF

9

First Claim

10

(5 U.S.C. § 706 – Violation of Administrative Procedure Act)

11 75. Plaintiffs reallege and incorporate by reference paragraphs 1 to 74, above.
12 76. Defendants’ final regulation defining “highly qualified” teachers (34 C.F.R. §
13

14

200.56(a)(2)(ii)) constitutes an “agency action” (5 U.S.C. § 551(13)) under the APA. Defendants’

15

regulatory standard, which deems “participant[s]” in alternative routes to certification programs as

16

“highly qualified” (34 C.F.R. § 200.56(a)(2)(ii)) even though they have not yet completed a

17 teacher training program and obtained “full State certification” (20 U.S.C. § 7801(23)(A)),
18 conflicts with the definition of the term “highly qualified” under the NCLB statute. Defendants
19

20

have, thus, acted in a manner that is arbitrary, capricious, an abuse of discretion, and otherwise not

21

in accordance with law, and have acted in excess of their statutory authority, in violation of the

22

APA, 5 U.S.C. § 706(2)(A) and (D).

23

77. Defendants’ adoption and promulgation of this regulation adversely affects and

24
aggrieves Plaintiffs as described above. 25

26

Second Claim

27

(28 U.S.C. § 2201 – Declaratory Relief)

28
33

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1

78. Plaintiffs reallege and incorporate by reference paragraphs 1 to 77, above.

2

79. An actual and substantial controversy exists between Plaintiffs and Defendants as to

3

their respective legal rights and duties. Plaintiffs contend that Defendants’ regulation is unlawful

4

and in excess of Defendants’ statutory authority. Plaintiffs are informed and believe, and thereby

5 allege, that Defendants contend to the contrary.
6
80. A declaration of legal rights and duties is needed from this Court to resolve the 7

8

controversy between the parties.

9

Third Claim

10

(28 U.S.C. § 2202 – Injunctive Relief)

11 81. Plaintiffs reallege and incorporate by reference paragraphs 1 to 80, above.
12 82. If an injunction does not issue enjoining Defendants from further use of their unlawful
13

14

standard of “highly qualified” teachers set forth at 34 C.F.R. § 200.56(a)(2)(ii) which deems

15

teachers participating in alternative preparation programs as “highly qualified,” Plaintiffs will

16

continue to suffer by not receiving the full benefit of the “highly qualified” teacher provisions of

17 NCLB intended by Congress. As a result of Defendants’ unlawful regulation, states (including
18 California), districts and schools will continue to mislabel intern teachers and other alternative
19

20

preparation program teachers as “highly qualified” and will not thereby plan to deliver, ultimately

21

deliver, and accurately report delivery of teachers to Plaintiffs’ classrooms who have received full

22

state certification and who are truly “highly qualified” as Congress intended.

23

83. In addition, if an injunction does not issue from this Court, Defendants themselves will

24
submit to Congress, pursuant to NCLB (see 20 U.S.C. § 6311(h)(5)), their inaccurate and 25

26

misleading 2005-2006 report—as well as all future such reports—on teacher quality and the

27

percentage of classes nationwide taught by “highly qualified” teachers. Using these reports,

28
34

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1

Congress will make decisions regarding national education policy and the reauthorization of the

2

No Child Left Behind Act based on an inaccurate, falsely-inflated percentage of classes nationwide

3

taught by “highly qualified” teachers.

4

84. Plaintiffs will be irreparably harmed by these injuries.

5 85. Plaintiffs have no plain, speedy, and adequate remedy at law.
6
86. Defendants, if not enjoined by the Court, will continue to authorize states, districts, and 7

8

schools to utilize a watered-down standard of a “highly qualified” teacher contrary to

9

Congressional intent and will continue to issue reports to Congress based on the substandard

10

definition of “highly qualified” set forth in Defendants’ regulation, in derogation of the rights of

11 Plaintiffs.
12
13

PRAYER FOR RELIEF

14 WHEREFORE, Plaintiffs respectfully request that this Court:

15

1. Enter a declaratory judgment that Defendants’ regulation set forth at 34 C.F.R. §

16

200.56(a)(2)(ii), defining a “highly qualified” teacher as one who “is participating in an

17 alternative route to certification program,” is unlawful and void pursuant to the APA (5
18 U.S.C. § 706) for the reason that Defendants’ regulation contravenes the definition of
19

20

“highly qualified” established by Congress in the No Child Left Behind Act (20 U.S.C.

21

§ 7801(23)(A));

22

2. Enjoin defendants from utilizing, enforcing, or relying upon 34 C.F.R. §

23

200.56(a)(2)(ii) in any way, including revising official guidance issued to third parties

24
to reflect the fact that alternative route participants are not to be considered “highly 25

26

qualified” teachers;

27

28
35

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1

3. Enjoin Defendants from submitting the 2005-2006 report to Congress on teacher

2

quality and the percentage of classes nationwide taught by “highly qualified” teachers,

3

pursuant to 20 U.S.C. § 6311(h)(5)—as well as any further outstanding reports or future

4

reports due to Congress relating to “highly qualified” teachers under NCLB—that fail

5 to designate teachers participating in alternative certification programs as not “highly
6
qualified”; 7

8

4. Order Defendants to notify Congress that the 2002-2003 report provided to Congress

9

pursuant to 20 U.S.C. § 6311(h)(5) relied on an unlawful definition of “highly

10

qualified” teacher and was therefore inaccurate;

11 5. Order Defendants to notify states that: (a) Defendants’ regulation defining a “highly
12 qualified” teacher as one who “is participating in an alternative route to certification
13

14

program” (34 C.F.R. § 200.56(a)(2)(ii)) is unlawful and void; and (b) states should use

15

the definition of “highly qualified” provided in the No Child Left Behind Act (20

16

U.S.C. § 7801(23)(A)) and in 34 C.F.R. § 200.56(a) absent 34 C.F.R. § 200.56(a)(2)(ii)

17 in complying with their “highly qualified” teacher obligations under NCLB and in
18 enforcing compliance by individual districts and schools, including, but not limited to,
19

20

obligations pursuant to 20 U.S.C. § 6319(a) (students’ right to be taught by a “highly

21

qualified” teacher), 20 U.S.C. §§ 6311(a)(1), 6311(b)(8) (state plan ensuring that

22

schools receiving Title I funding will provide “highly qualified” instructional staff), 20

23

U.S.C. § 6311(h)(4)(G) (annual report to Secretary on teacher quality), 20 U.S.C. §

24
6311(b)(8)(C) (statewide plan for meeting the “highly qualified” teacher mandate, 25

26

including for “ensur[ing] that poor and minority children are not taught at higher rates

27

than other children by inexperienced, unqualified, or out-of-field teachers. . . ”), 20

28
36

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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1

U.S.C. § 6311(h)(1)(C) (state annual report card), 20 U.S.C. §§ 6312(b)(1)(N),

2

6312(c)(1)(I) (district plan), 20 U.S.C. § 6311(h)(2) (district annual report card), and 20

3

U.S.C. § 6311(h)(6)(B)(ii) (four week letter to parents);

4

6. Award Plaintiffs their costs, attorneys’ fees, and other disbursements in this action

5 pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d); and
6
7. Grant Plaintiffs such other and further relief as the Court may deem just and proper. 7

8

9

10 Dated: November 27, 2007 11
12

Respectfully submitted,

13

14

15

16

17

_________________________________ JOHN T. AFFELDT

18

JENNY PEARLMAN

TARA KINI

19

PUBLIC ADVOCATES, INC.

20

Attorneys for Plaintiffs

21

22

23

24

25

26

27

28
37

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

 
 Case4:07-cv-04299-PJH Document52 Filed01/18/08 Page1 of 30

1 JOHN T. AFFELDT (SBN 154430)

JENNY PEARLMAN (SBN 224879) 2 TARA KINI (SBN 239093)

3

PUBLIC ADVOCATES, INC. 131 Steuart Street, Suite 300

4 San Francisco, California 94105 Tel. (415) 431-7430

5 Fax (415) 431-1048

6

Email: jaffeldt@publicadvocates.org jpearlman@publicadvocates.org

7

tkini@publicadvocates.org

8 JEFFREY SIMES (NY SRN 2813533), appearing pro hac vice

9

GOODWIN PROCTER LLP 599 Lexington Avenue

10 New York, New York 10022

Tel: (212) 813-8879 11 Fax: (212) 355-3333

12 Email: jsimes@goodwinprocter.com

13 Attorneys for PLAINTIFFS 14 (Additional attorneys listed on following page)

15

16

UNITED STATES DISTRICT COURT

17

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION
18

19 SONYA RENEE et al.,

Case No. 07-04299 PJH

20
Plaintiffs, 21
v. 22

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND EXHIBITS IN SUPPORT

23 MARGARET SPELLINGS, in her official capacity;

24

UNITED STATES DEPARTMENT OF EDUCATION, Time: 9:00

25

Defendants.

Date: April 23, 2008

Courtroom: 3, 17th Floor

26

27

28

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND EXHIBITS IN SUPPORT
CASE NO. 07-04299 PJH

Case4:07-cv-04299-PJH Document52 Filed01/18/08 Page2 of 30
1 PATRICK THOMPSON (SBN 160804) NICOLE E. PERROTON (SBN 233121)
2 ELIZABETH F. STONE (SBN 239285) GOODWIN PROCTER LLP
3 101 California Street # 1850 4 San Francisco, California 94111
Tel: (415) 733-6000 5 Fax: (415) 677-9041
Email: pthompson@goodwinprocter.com 6 7 DAVID B. COOK (DC BN 113522), appearing pro hac vice
GOODWIN PROCTER LLP 8 901 New York Avenue, N.W.
Washington, D.C. 20001 9 Tel: (202) 346-4000 10 Fax: (202) 346-4444
Email: dcook@goodwinprocter.com 11 Attorneys for PLAINTIFFS 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND EXHIBITS IN SUPPORT
CASE NO. 07-04299 PJH

Case4:07-cv-04299-PJH Document52 Filed01/18/08 Page3 of 30

1

TABLE OF CONTENTS

2 STATEMENT OF ISSUES PRESENTED............................................................................................1
3 INTRODUCTION AND SUMMARY OF ARGUMENT ....................................................................1
4 5 STATEMENT OF FACTS ....................................................................................................................2

6

A. NO CHILD LEFT BEHIND’S “HIGHLY QUALIFIED” TEACHER PROVISIONS. ...............................2

7

1. NCLB Defines a “Highly Qualified” Teacher as One Who Has Obtained Full

State Certification. ...................................................................................................3 8

9

2. NCLB’s “HQT” Requirements and Enforcement Provisions Seek to Provide

All Students with “Highly Qualified” Teachers. .....................................................3

10

B. THE U.S. DEPARTMENT OF EDUCATION’S REGULATION DEFINES THE TERM “HIGHLY

11

QUALIFIED” TEACHER TO INCLUDE TEACHERS PARTICIPATING IN ALTERNATIVE

12

CERTIFICATION PROGRAMS AND WORKING TOWARDS FULL CERTIFICATION. ........................4

13

C. DEFENDANTS’ REGULATION SUBSTANTIALLY AFFECTS THE IMPLEMENTATION OF

NCLB’S “HIGHLY QUALIFIED” TEACHER PROVISIONS, ESPECIALLY IN CALIFORNIA

14

WHERE ALTERNATIVE ROUTE TEACHERS DISPROPORTIONATELY TEACH IN

15

UNDERPERFORMING, LOW-INCOME, HIGH MINORITY SCHOOLS. .............................................6

16

1. Defendants’ Regulation Substantially Impacts NCLB Implementation..................6

17

2. The Growth and Disproportionate Distribution of Alternate Route Teachers in

18

California.. ...............................................................................................................8

19 ARGUMENT.......................................................................................................................................10

20

I. CHEVRON SETS FORTH THE APPLICABLE LEGAL STANDARD. ................................................10

21 II. ED’S REGULATION DEFINING THE TERM “HIGHLY QUALIFIED” TEACHER IS CONTRARY

22

TO CONGRESS’ UNAMBIGUOUS INTENT SET FORTH IN NCLB’S PLAIN LANGUAGE. .............10

23

A. The Plain Language of the NCLB Act Defines the Term “Highly Qualified”

24

Teacher as One Who Has Already Completed the Credentialing Process and “Obtained” Full Certification.................................................................................11

25

26
i
27

28

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLANTIFFS’ MOTION FOR

SUMMARY JUDGMENT AND EXHIBITS IN SUPPORT

CASE NO. 07-04299 PJH

Case4:07-cv-04299-PJH Document52 Filed01/18/08 Page4 of 30

1

B. ED’s Regulation Conflicts With NCLB By Defining “Highly Qualified” To Include Teachers Still Working Toward Full Certification. ..................................11

2

C. ED’s Regulation Also Conflicts With Congress’ Explicit Exclusion of

3

Provisionally-Certified Teachers From the “Highly Qualified” Definition. .........14

4

D. The Statute Creates No Ambiguity. .......................................................................15

5 III. ED’S INTERPRETATION OF THE STATUTE IS INCONSISTENT WITH THE LEGISLATIVE

6

HISTORY AND PURPOSE OF THE NCLB ACT AND THUS IS NOT ENTITLED TO DEFERENCE

UNDER THE CHEVRON TEST. ..................................................................................................15 7

8

A. The Legislative History Reflects Congressional Intent That Only Fully

Certified Teachers Should Be Considered “Highly Qualified.” ............................15

9

B. ED’s Proffered Reasons for Its “Highly Qualified” Definition are Without

10

Merit.......................................................................................................................17

11 C. ED’s Regulation is Inconsistent With the Statutory Scheme and Undermines

12

NCLB’s Goals of Ensuring Access to High Quality Teachers—Particularly for

Poor and Minority Students—and of Public Transparency. ..................................18 13

14

IV. BECAUSE ED’S REGULATION CONFLICTS WITH THE NCLB ACT, THE COURT SHOULD

INVALIDATE IT AND ISSUE AN INJUNCTION TO ENSURE COMPLIANCE. ..................................20

15

CONCLUSION..............................................................................................................................23 16

17

18

19

20

21

22

23

24

25

26
ii
27

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1

TABLE OF AUTHORITIES

2

Cases

3

Bresgal v. Brock,

4

843 F.2d 1163 (9th Cir. 1987) ....................................................................................................22

5

Brown v. Harris,

491 F. Supp. 845 (N.D. Cal. 1980) .............................................................................................21 6

7

California Cosmetology Coalition v. Riley,

110 F.3d 1454 (9th Cir. 1997) ..................................................................................10, 12, 13, 21

8

Chevron U.S.A. v. Echazabal,

9

536 U.S. 73 (2002)......................................................................................................................12

10 Chevron, U.S.A. v. Natural Resources Defense Council,

11

467 U.S. 837 (1984)..............................................................................................................10, 15

12

Citizens for Better Forestry v. U.S. Dept. of Agric.,

13

490 F. Supp. 2d 1059 (N.D. Cal. 2007) ......................................................................................21

14

Earth Island Institute v. Ruthenbeck,

490 F.3d 687 (9th Cir. 2007) ................................................................................................21, 22 15

16

Eisinger v. Fed. Labor Relations Auth.,

218 F.3d 1097 (9th Cir. 2000) ....................................................................................................13

17

FEC v. Democratic Senatorial Campaign Comm.,

18

454 U.S. 27 (1981)......................................................................................................................18

19 Gorbach v. Reno,

20

219 F.3d 1087 (9th Cir. 2000) ....................................................................................................21

21

Int’l Bhd. Of Teamsters, Chauffers, Warehousemen & Helpers of Am. v. Daniel,

22

439 U.S. 551 (1979)....................................................................................................................15

23

Kaiser Aluminum & Chem. Corp. v. Bonneville Power Admin.,

261 F.3d 843 (9th Cir. 2001) ......................................................................................................18

24

25

Koshland v. Helvering, 298 U.S. 441 (1936)....................................................................................................................12

26
iii
27

28

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1

Manhattan Gen. Equip. Co. v. Comm’r of Internal Revenue, 297 U.S. 129 (1936)....................................................................................................................20

2

MCI Telecomms. Corp. v. AT & T Co.,

3

512 U.S. 218 (1994)....................................................................................................................10

4

Miller v. AT & T Corp.,

5

250 F.3d 820 (4th Cir. 2001) ......................................................................................................13

6

Nat’l Ass’n of Home Builders v. Defenders of Wildlife,

127 S. Ct. 2518 (2007)................................................................................................................19 7

8

Nat’l Muffler Dealers Ass’n v. United States,

440 U.S. 472 (1979)....................................................................................................................15

9

Natural Res. Def. Council v. EPA,

10

966 F.2d 1292 (9th Cir. 1992) ....................................................................................................21

11 Northwest Envtl. Advocates v. EPA,

12

2005 U.S. Dist. LEXIS 5373 (N.D. Cal. 2005) ..........................................................................21

13

Robinson v. Shell Oil Co.,

14

519 U.S. 337 (1997)..............................................................................................................10, 11

15

Schneider v. Chertoff,

450 F.3d 944 (9th Cir. 2006) ......................................................................................................21 16

17

Shivaraman v. Ashcroft,

360 F.3d 1142 (9th Cir. 2004) ....................................................................................................13

18

United States v. Calamaro,

19

354 U.S. 351 (1957)....................................................................................................................12

20 United States Term Limits v. Thornton,

21

514 U.S. 779 (1995)....................................................................................................................12

22

Ventana Wilderness Alliance v. Bradford,

23

2007 U.S. Dist. LEXIS 48366, *7 (N.D. Cal. 2007) ........................................................................13

24

Federal Statutes

25

5 U.S.C. § 706...................................................................................................................................21

26
iv
27

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1

20 U.S.C. § 6301...............................................................................................................................19

2

20 U.S.C. §§ 6311-6312 ...........................................................................................................2, 4, 19

3

20 U.S.C. § 6319.............................................................................................................................3, 4

4

20 U.S.C. § 6672...............................................................................................................................18

5 20 U.S.C. § 6674...............................................................................................................................18
6
20 U.S.C. § 6681...............................................................................................................................18 7

8

20 U.S.C. § 7801....................................................................................................................... passim

9

Federal Regulations

10

34 C.F.R. § 200.56. ................................................................................................................... passim

11 34 C.F.R. § 200.55. .........................................................................................................................4, 5
12 Other Authorities
13

14

147 CONG. REC. H2611-01, at *H2626 (May 23, 2001)....................................................................16

15

147 CONG. REC. H4121-01, at *H4127-H4128 (July 18, 2001) ........................................................16

16

147 CONG. REC. S13365 (Dec. 18, 2001)..........................................................................................16

17 148 CONG. REC. S5341-S5343 (June 11, 2002) ..........................................................................16, 17
18 CONF. REP. NO. 107-334 to accompany HR 1 (Dec. 12, 2001) .........................................................16
19

20

CAL. EDUC. CODE § 44251................................................................................................................14

21

CAL. EDUC. CODE § 44274.2.............................................................................................................14

22

CAL. EDUC. CODE § 44325 et seq........................................................................................................8

23 CAL. EDUC. CODE § 44450 et seq,.......................................................................................................8

24
CAL. CODE REGS. tit.5, § 6101............................................................................................................6 25

26

CAL. CODE REGS. tit.5, § 6110............................................................................................................6

v

27

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STATEMENT OF ISSUES PRESENTED

1

(Civ. L.R. 7-4)

2

1. Where Congress defined a “highly qualified” teacher under the No Child Left Behind Act

3

as one who has “obtained full state certification,” does Defendants’ challenged regulation

4

exceed the scope of the NCLB Act and thereby violate the Administrative Procedure Act

5

by defining a “highly qualified” teacher to include individuals who are still participating

6

in alternative certification programs and only making progress toward full certification?

7

2. If Defendants’ regulation exceeds the scope of the NCLB statute and thereby violates the

8

APA, what relief is appropriate to remedy the continuing effects of Defendants’ unlawful

9

regulation?

10

11

INTRODUCTION AND SUMMARY OF ARGUMENT

12

In enacting the No Child Left Behind Act (“NCLB” or the “Act”), Congress was explicit

13 that children in the public schools of this country should receive their instruction from “highly

14 qualified” teachers, a term that Congress essentially defined to include only those teachers who

15 have completed their teacher preparation programs and obtained full state certification.

16 Defendants U.S. Department of Education and Secretary of Education Margaret Spellings

17 (together “ED” or “Defendants”) are thwarting this unambiguous mandate by implementing a

18 regulation that abrogates this definition of “highly qualified” teacher in favor of one that is the

19 opposite of what Congress directed. According to Defendants, teachers who are merely

20 participating in alternative preparation programs and only progressing toward full certification

21 are, by Defendants’ regulation, “highly qualified.” As a result, individuals with no prior teacher

22 training or experience—over 10,000 in California alone—are now deemed “highly qualified” the

23 day they enter an alternative route certification program and take full responsibility for a

24 classroom. This mislabeling of under prepared teachers perverts Congress’s carefully laid out

25 statutory vision and disserves the children and parents whom the Act sought to benefit.

26

Delivering “highly qualified” teachers to every student in every core course is a

27 cornerstone of NCLB, which seeks to improve academic achievement for all children. The

28 “highly qualified” teacher definition also plays a vital role in Congress’s requirement that parents

1
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1 should receive accurate information about the qualifications of their children’s teachers.

2 Defendants’ evasion of this critical Congressional standard by regulatory fiat has undermined the

3 promise of No Child Left Behind for Plaintiffs, for hundreds of thousands of California public

4 school students, and for the nation as a whole. The consequences of Defendants’ actions are

5 particularly severe in California where alternative route teachers-in-training are concentrated in

6 low-performing, low-income, high minority schools like Plaintiffs’—in direct contradiction of

7 Congress’ mandate under NCLB that poor and minority students not be taught by non-“highly 8 qualified” teachers at disproportionate rates.1 Because Defendants’ regulation conflicts with the

9 unambiguous, plain language of NCLB as well as with its underlying goals and purposes, 10 Plaintiffs ask this Court to void the regulation as violative of the Administrative Procedure Act

11 and enjoin its further use.

12

13

STATEMENT OF FACTS

14

A. No Child Left Behind’s “Highly Qualified” Teacher Provisions.

15

Since 2002, the No Child Left Behind Act has served as the current version of the

16 Elementary and Secondary Education Act, first enacted in 1965, and the foundation for federal

17 education policy. The ultimate goal of NCLB is for all students to attain proficiency in reading

18 and math by 2014, eliminating the significant academic achievement gaps between students of

19 different socioeconomic and racial/ethnic groups. 20 U.S.C. § 6311(b)(2)(F). An essential

20 component of NCLB’s promotion of academic achievement and accountability is that students

21 must be taught by “highly qualified” teachers. Defendant Spellings’ official correspondence to

22 states acknowledges the importance of teacher quality in meeting the goals of NCLB:

23

[NCLB] recognizes that teacher quality is one of the most important factors in

24

improving student achievement and eliminating these achievement gaps. As a

result, the law set the important goal that all students be taught by a “highly

25

qualified teacher” (HQT) who holds at least a bachelor’s degree, has obtained full

26

27 1 In California, these individuals are known as intern teachers and are typically employed and 28 paid as full-time teachers while they take teacher preparation classes at night or on weekends.

2
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1

State certification, and has demonstrated knowledge in the core academic subjects he or she teaches.

2 Exh. 1, Spellings Letter to Chief State School Officers (Oct. 21, 2005) (emphasis added).

3

Accordingly, as discussed below, NCLB contains over a dozen provisions relating to

4 “highly qualified” teachers, including a definition of the term and numerous provisions

5 establishing specific “highly qualified” teacher (“HQT”) requirements.

6

1. NCLB Defines a “Highly Qualified” Teacher as One Who Has Obtained Full

State Certification. 7
In the “Definitions” section of the NCLB Act, Congress defined what it meant by the

8

term “highly qualified” “when used with respect to any public elementary school or secondary

9 school teacher teaching in a State:”

10 (i) the teacher has obtained full State certification as a teacher (including

11

certification obtained through alternative routes to certification) or passed the

State teacher licensing examination, and holds a license to teach in such State,

12

except that when used with respect to any teacher teaching in a public charter

13

school, the term means that the teacher meets the requirements set forth in the

State’s public charter school law; and

14

(ii) the teacher has not had certification or licensure requirements waived on an

emergency, temporary, or provisional basis. 15

16 20 U.S.C. § 7801(23)(A) (emphasis added). On its face, the statute requires that a teacher have

17

already “obtained full state certification” to be deemed “highly qualified.” Id.2

18

2. NCLB’s “HQT” Requirements and Enforcement Provisions Seek to Provide

All Students with “Highly Qualified” Teachers. 19

20

NCLB’s “highly qualified” teacher provisions can be divided into four major categories:

21 (1) the “highly qualified” teacher requirement, (2) equitable distribution requirements, (3) HQT

22 “plan” requirements, and (4) public reporting and accountability requirements.

23

First, beginning with the 2002-03 school year, new hires in schools with low-income

24 students receiving federal Title I funds are to meet the “highly qualified” standard. 20 U.S.C.

25 § 6319(a)(1)-(2). For all schools, NCLB mandates that, by the end of the 2005-20063 academic

26 year, all students be taught by an HQT in core academic classes.4 20 U.S.C. § 6319(a)(2).

27 2 California (like most states) does not have a single, summative “state teacher licensing 28 examination.” Thus, the second option in § 7801(23)(A)(i) is of little relevance.
3 Defendants later extended this deadline until the end of the 2006-2007 school year. 3
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1

Second, during the time it takes to provide all students with HQTs in core academic

2 classes, NCLB mandates that poor and minority students not be taught by inexperienced, non-

3 HQTs at higher rates than other students. 20 U.S.C. § 6311(b)(8)(C).

4

Third, to meet these mandates, the Act requires that every state and local school district

5 develop specific plans to provide “highly qualified” teachers in all core academic classes and to

6 arrange for the equitable distribution of these teachers. 20 U.S.C. §§ 6311(b)(8)(C), 6319(a)(2),

7 6311(a)(1) (state plans); §§ 6312(b)(1)(N), §6319(a)(3), 6312(c)(1)(I) (district plans). See also

8 1st Am. Compl. ¶ 49 (for further description of the state and district plan requirements).

9

Fourth, the Act sets forth several reporting requirements to ensure that parents, students,

10 policy makers, and the public have accurate information regarding the presence, the number and

11 the distribution of “highly qualified” teachers. Schools receiving Title I funds must inform

12 individual parents when a non-“highly qualified” teacher teaches his/her child for more than four

13 weeks. 20 U.S.C. § 6311(h)(6)(B)(ii). Moreover, every year, states and school districts are

14 required to report to the public accurate information regarding the progress that schools, districts,

15 and states are making towards meeting NCLB’s HQT requirements and the numbers of teachers

16 who are not “highly qualified.” 20 U.S.C. § 6311(h)(1)(C)(viii); §§ 6311(h)(2), 6319(b)(1)(A).

17 States, in turn, must provide this information to the U.S. Department of Education, (20 U.S.C.

18 §§ 6311(h)(4)(G), 6319(b)(1)(B)), which then reports to Congress the nationwide statistics on

19 “highly qualified” teachers (20 U.S.C. § 6311(h)(4)-(5)).

20

21

B. The U.S. Department of Education’s Regulation Defines the Term “Highly

Qualified” Teacher to Include Teachers Participating in Alternative Certification

22

Programs and Working Towards Full Certification.

23

On December 2, 2002, then Secretary of Education Rod Paige issued final regulations,

24 which became effective January 2, 2003, redefining the term “highly qualified” teacher. These

25 regulations permit individuals who are merely “participating in an alternative route to

26

27 4 “Core academic subjects” are English, reading/language arts, math, science, foreign languages, 28 civics and government, economics, arts, history, and geography. 34 C.F.R. § 200.55(c).

4
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1 certification program” (34 C.F.R. § 200.56(a)(2)(ii) (emphasis added)) and who have not yet

2 “obtained full state certification” (20 U.S.C. § 7801(23)(A)) to be deemed “highly qualified.”

3 Indeed, the regulations expressly state that individuals can only be certified to teach on a

4 temporary basis and need only “demonstrate[] satisfactory progress toward full certification.” 34

5 C.F.R. § 200.56(a)(2)(ii)(3)-(4). Specifically, the regulation provides:

6

(a) In general

7

(1) Except as provided in paragraph (a)(3) of this section, a teacher covered under

§ 200.55 must –

8

i. Have obtained full State certification as a teacher, which may

9

include certification obtained through alternative routes to certification; or

10

ii. (A) Have passed the State teacher licensing examination; and (B)

Hold a license to teach in the State.

11

(2) A teacher meets the requirement in paragraph (a)(1) of this section if the

teacher –

12

i. Has fulfilled the State’s certification and licensure requirements

13

applicable to the years of experience the teacher possesses; or

ii. Is participating in an alternative route to certification program

14

under which –

(A) The teacher –

15

(1) Receives high-quality professional development

16

that is sustained, intensive, and classroom-focused in

order to have a positive and lasting impact on

17

classroom instruction, before and while teaching;

(2) Participates in a program of intensive supervision

18

that consists of structured guidance and regular

19

ongoing support for teachers or a teacher mentoring

program;

20

(3) Assumes functions as a teacher only for a

specified period of time not to exceed three years; and

21

(4) Demonstrates satisfactory progress toward full

22

certification as prescribed by the State; and

(B) The State ensures, through its certification and

23

licensure process, that the provisions in paragraph (a)(2)(ii)

of this section are met.

24

(3) A teacher teaching in a public charter school in a State must meet the

25

certification and licensure requirements, if any, contained in the State’s charter

school law.

26

(4) If a teacher has had certification or licensure requirements waived on an

emergency, temporary, or provisional basis, the teacher is not highly qualified. 27

28

5
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1 34 C.F.R. § 200.56(a) (emphases added). Under these regulations, a teacher-in-training with no

2 prior training nor any prior experience teaching is deemed “highly qualified” on the day she

3 enters an alternative certification program and begins to serve as a full-time classroom teacher.

4

5

C. Defendants’ Regulation Substantially Affects the Implementation of NCLB’s

“Highly Qualified” Teacher Provisions, Especially in California Where Alternative

6

Route Teachers Disproportionately Teach in Underperforming, Low-income, High

7

Minority Schools.

8

1. Defendants’ Regulation Substantially Impacts NCLB Implementation.

9

Defendants’ regulation seriously impairs the implementation of the numerous provisions

10 of NCLB designed to ensure that all children have access to “highly qualified” teachers, both

11 nationwide and in California. All four categories of HQT provisions are impacted.

12

In California, the State Board of Education has adopted “highly qualified” teacher

13 regulations in order to implement NCLB in the state. In doing so, the State Board has adopted

14 the “highly qualified” teacher definition as set forth in Defendants’ regulation—including

15 defining participants in alternative route credentialing programs as “highly qualified” teachers

16 for purposes of NCLB. See CAL. CODE REGS. tit. 5, §§ 6101, 6110. As a result of Defendants’

17 regulation, California, its districts and schools currently place over 10,000 alternative route

18 program participants in core classrooms—including in the schools and classrooms that Plaintiffs

19 attend—and count them as “highly qualified” teachers. Id.; Exh. 12; Renee Decl. ¶ 6, 10;

20 Heredia Decl. ¶ 4; N. Doe Decl. ¶ 4; Rubio Decl. ¶¶ 5-6, 10; Gonzalez Decl. ¶ 7; Johnson Decl.

21 ¶¶ 4, 7; Ramirez Decl. ¶¶ 4, 6; J. Doe Decl. ¶¶ 4-5, 7; Rivera Decl. ¶¶ 9, 11; Mehrens Decl.

22 ¶¶ 10-11. Other states, districts and schools nationwide are given the same authority to label

23

their alternative route teachers as “highly qualified” by Defendants’ regulation.5

24

5 Defendants do not maintain data on how many “highly qualified” teachers nationally qualify as

25 such by virtue of their participation in alternative route certification programs. Based on an

annual graduation rate of 59,000 teachers from alternative route programs nationally, see 1st Am. 26 Compl. ¶ 54, and the fact that alternative route participants typically take two (and sometimes as

27

long as three) years to complete their programs, Plaintiffs estimate that over 100,000 individuals are participating in alternative route programs nationally at any one time and are considered

28 “highly qualified.”

6
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1

Secondly, because teachers still participating in alternative route programs are labeled

2 “highly qualified,” California and its districts are able to place interns disproportionately in low-

3 income and high minority schools without regard to NCLB provisions requiring the equitable

4 distribution of non-HQTs. See, e.g., Renee Decl. ¶ 10; Rubio Decl. ¶ 10; Gonzalez Decl. ¶ 7;

5 Johnson Decl. ¶ 7; Ramirez Decl. ¶ 6; J. Doe Decl. ¶ 7; Shields Decl. ¶¶ 11-13, Exh. B. See also

6 Exh. 2-7 (containing data from the California Department of Education website demonstrating

7 the percentage of intern teachers at Plaintiffs’ schools as well as the disproportionate

8 concentration of poor and minority students at those schools); Exh. 2, 8-9 (demonstrating the

9 percentage of intern teachers at schools and in districts attended by members’ of organizational 10 plaintiffs). Similar results are permitted nationwide as a result of Defendants’ regulation.

11

Thirdly, state and school district plans for meeting the HQT requirement are substantially

12 altered when teachers-in-training through alternative certification programs are counted as

13 “highly qualified.” The data and the premises upon which these plans are based ignore the

14 significantly greater objectives that must be met were alternative route program participants not

15 counted as “highly qualified.” In particular, Defendants’ regulation deprives the Plaintiffs, the

16 Plaintiff organizations and their members and the public of the benefit of state and local district

17 plans to redress the hiring and placement of non-“highly qualified” teachers, including interns.

18 Renee Decl. ¶ 11; Heredia Decl. ¶ 7; N. Doe Decl. ¶ 9; Rubio Decl. ¶ 11; Gonzalez Decl. ¶ 8;

19 Johnson Decl. ¶ 9; Ramirez Decl. ¶ 8; J. Doe Decl. ¶ 9; Rivera Decl. ¶ 11; Mehrens Decl. ¶ 11.

20

Finally, as a result of Defendants’ regulation, parents, students, policymakers and the

21 public receive much different information about students’ access to HQTs. In particular, parents

22 in schools receiving Title I funds for low-income student assistance—over half of all public 23 schools in California6—do not receive a letter notifying them when their child has been taught

24 for four or more weeks by a teacher-in-training through an alternative certification program, as

25 would otherwise be required under NCLB. See, e.g., N. Doe Decl. ¶¶ 7, 9. District and state

26 “annual report cards” containing information on the percentages of classes being taught by HQTs

27 6 See Ed Source, California’s School Accountability System Under the Federal No Child Left 28 Behind Act (NCLB) (August 2007), available at: http://www.edsource.org/pub_edfct_ayp.cfm.

7
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1 and progress towards meeting the HQT goal report misleadingly higher numbers of HQTs

2 because of Defendants’ regulation. Similarly, Secretary Spellings’s annual report to Congress

3 regarding the progress made towards meeting the HQT goal is based on HQT numbers inflated

4 by district and state counts of alternative route teachers-in-training as HQTs. All of the

5 individual Plaintiffs in this action—as well as Californians for Justice and California ACORN

6 and their members—are among those deprived of accurate information about non-“highly

7 qualified” teachers teaching in their school, district, state, and nation, thereby inhibiting their

8 ability to hold schools accountable for delivering fully prepared teachers. See Renee Decl. ¶ 11;

9 Heredia Decl. ¶ 7; N. Doe Decl. ¶ 9; Rubio Decl. ¶ 11; Gonzalez Decl. ¶ 8; Johnson Decl. ¶ 9;

10 Ramirez Decl. ¶ 8; J. Doe Decl. ¶ 9; Rivera Decl. ¶ 11; Mehrens Decl. ¶ 11.

11

As a result of Defendants’ major alteration of the type of teacher that is considered

12 “highly qualified,” Defendants’ regulation substantially alters the operation of NCLB.

13 Accordingly, Congress’, the public’s, and Plaintiffs’ goal of improving the quality of teachers in

14 our nation’s public schools is adversely affected. See Rivera Decl. ¶¶ 5, 10; Mehrens Decl. ¶¶ 6,

15 9.

16

2. The Growth and Disproportionate Distribution of Alternate Route Teachers

17

in California.

18

In California, the most common alternative teacher certification programs are university

19 or school district-based intern programs. There are 10,000 such “intern teachers” in California

20 working toward their full (i.e., a preliminary or professional clear) teaching credential. See, e.g.,

21 Exh. 10, California Internship Teacher Preparation: Frequently Asked Questions, downloaded

22 from http://www.ctc.ca.gov/educator-prep/intern/intern-FAQ.html. See also CAL. EDUC. CODE 23 §§ 44325–44329.5 (district interns); §§ 44450–44468 (university interns). All of these intern

24 teachers, regardless of how inexperienced or unprepared, are automatically deemed “highly

25 qualified” under Defendants’ regulation.

26

Since Defendants issued the challenged regulation in 2002, the number of intern teachers

27 in California has risen by approximately 50%. See Exh. 11-12 (indicating that the number of 28 intern teachers in California jumped from 7,251 in 2001-2002 to 10,716 in 2006-2007). This

8
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1 significant increase in the number of intern teachers in California has coincided with a significant

2 decrease in the number of emergency-credentialed teachers, who are not considered “highly

3 qualified” under NCLB or its implementing regulations. See Exh. 13 (Center for the Future of

4 Teaching and Learning, The Status of the Teaching Profession 2005, at 31).

5

Nearly a quarter of interns (23%) across the state teach in the 10% of schools serving the

6 highest concentrations of minority students (98-100% non-white), while less than 2% teach in

7 the 10% of schools with the lowest concentration of minority students. Shields Decl. ¶ 13, Exh. 8 B. Whereas, on average, less than 1% of the teaching staff are interns in schools with the lowest

9 concentration of minority students, the 10% of schools which are nearly entirely minority 10 students have over five times as many interns. Id. at Exh. B. The distribution of intern teachers

11 by school achievement shows a similar pattern in California. Sixty percent of interns serve in the

12 lowest-performing 30% of schools in the state based on California’s Academic Performance

13 Index (“API”), while only 10% serve in the highest-performing 30% of schools in the state. Id.at

14 ¶ 13, Exh. B. Students in the lowest-performing decile of schools see six times more interns on

15 their school’s teaching staff than students in the highest-performing decile. Id. at Exh. B.

16 Interns are also disproportionately concentrated in schools serving predominantly poor students. 17 Sixty-two percent of interns are concentrated in the poorest half of the state’s schools, whereas

18 only 13% of interns are in the least poor quartile. Id. at ¶ 11; Exh. 14 at 76 (Center for the

19 Future of Teaching and Learning, Teaching and California’s Future: The Status of the Teaching

20 Profession 2007). See also Shields Decl. ¶ 13, Exh. B. Plaintiffs, Plaintiffs’ children, and

21 Plaintiffs’ members attend California public schools which exemplify these statistics. Exhs 2-7,

22 16.

23

In short, Defendants’ inclusion of teachers still working towards full certification as

24 “highly qualified” has significantly increased the number of underprepared, under-certified

25 teachers, particularly in poor, poor-performing and minority-dominated schools. 26

27 28

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1

ARGUMENT

I. CHEVRON SETS FORTH THE APPLICABLE LEGAL STANDARD. 2

Administrative agencies may not, as Defendants have here, implement regulations that 3

are contrary to the “unambiguously expressed intent of Congress.” Chevron, U.S.A. v. Natural 4

Res. Def. Council, 467 U.S. 837, 842-43 (1984). In Chevron, the Supreme Court set forth a two5

part test for judicial review of an administrative agency’s construction of a statute it administers. 6

First, a court must consider “whether Congress has directly spoken to the precise question at 7

issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the 8
agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-843.7 9

Second, and only if the statute is silent or ambiguous on the question at issue, courts must defer 10

to the agency’s reasonable interpretation of the statute as long as the interpretation is consistent 11

with the purpose of the statute. Chevron, 467 U.S. at 843-45. However, “an agency’s 12

interpretation of a statute is not entitled to deference when it goes beyond the meaning that the 13

statute can bear.” MCI Telecomms. Corp. v. AT & T Co., 512 U.S. 218, 229 (1994). 14

As set forth below, ED’s regulation defining the term “highly qualified” teacher is flatly 15

contrary to the plain language Congress used in NCLB. Thus, the court need reach only the first 16

step of the Chevron test to decide in favor of Plaintiffs. Nonetheless, even were the court to 17

conclude that NCLB’s definition of “highly qualified” teacher is somehow ambiguous, the court 18

must still reject ED’s regulation under step two of the Chevron test. Because the regulation is 19

inconsistent with the legislative history and purpose of the NCLB Act—indeed, it is “manifestly 20

contrary to the statute” (Chevron, 467 U.S. at 844)—it is not entitled to judicial deference. 21

22

II. ED’S REGULATION DEFINING THE TERM “HIGHLY QUALIFIED” TEACHER IS CONTRARY

23

TO CONGRESS’ UNAMBIGUOUS INTENT SET FORTH IN NCLB’S PLAIN LANGUAGE.

24

25 7 See also Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (“[The] first step in interpreting a
26 statute is to determine whether the language at issue has a plain and unambiguous meaning with

27

regard to the particular dispute in the case. [The] inquiry must cease if the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent’”); California Cosmetology

28 Coal. v. Riley, 110 F.3d 1454, 1458 (9th Cir. 1997).

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1

A. The Plain Language of the NCLB Act Defines the Term “Highly Qualified” Teacher as One Who Has Already Completed the Credentialing Process and

2

“Obtained” Full Certification.

3

In determining the “plainness or ambiguity of the statutory language,” a court looks to

4 “the language itself, the specific context in which that language is used, and the broader context

5 of the statute as a whole.” Robinson, 519 U.S. at 341. Here, the NCLB Act, in pertinent part,

6 defines a “highly qualified” teacher as follows:

7

(i)

the teacher has obtained full State certification as a teacher (including

8

certification obtained through alternative routes to certification) or passed the

9

State teacher licensing examination, and holds a license to teach in such State . . .; and

10

(ii)

the teacher has not had certification or licensure requirements waived on an

emergency, temporary, or provisional basis.

11 20 U.S.C. § 7801(23)(A) (emphasis added). This language could not be clearer. A teacher is

12 “highly qualified” only if she “has obtained full State certification” or has “passed the State

13 teacher licensing examination, and hold[s] a license to teach in such State.” Id. Thus, Congress

14 here has explicitly set forth two and only two potential avenues to earn the label “highly

15 qualified.”

16

17

B. Ed’s Regulation Conflicts With NCLB By Defining “Highly Qualified” To

18

Include Teachers Still Working Toward Full Certification.

19

ED’s regulation defining “highly qualified” teacher restates the statute’s two avenues for

20 obtaining “highly qualified” status in 34 C.F.R. § 200.56(a)(1)(i) and (ii). However, the

21 regulation introduces an unauthorized third means to be deemed “highly qualified” in subsection

22 (a)(2)(ii) that flatly contradicts 20 U.S.C. § 7801(23)(A)(i)—i.e., teachers “participating in an

23 alternative route to certification program.” 34 C.F.R. § 200.56(a) (emphasis added). Thus,

24 under the regulation, teachers-in-training who are merely “participating in an alternative route to

25 certification program,” id., but who have not yet “obtained full State certification” or “passed the

26 State teacher licensing examination and [earned] a license to teacher,” 20 U.S.C. § 7801(23)(A),

27 are now deemed “highly qualified.” Indeed, there is no requirement that alternative route

28 program participants pass “the State teacher licensing examination” where a state might have

11
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1 such. (See note 2, supra.) Even more clearly evidencing a direct conflict with the statute, the

2 regulation grants HQT status to alternative route participants who demonstrate only that they are

3 making “progress toward full certification,” 34 C.F.R. § 200.56(a)(2)(ii)(A)(4), rather than that

4 they have “obtained full state certification,” as the statute requires, 20 U.S.C. § 7801(23)(A)(i).

5

The conflict between the statute and regulation is glaring. Congress unmistakably

6 demonstrated its intent by using the present perfect tense which indicates an action has been

7 completed: “has obtained full State certification” or “[has] passed the State teacher licensing

8 examination, and holds a license to teach.” 20 U.S.C. § 7801(23)(A) (emphasis added).

9 Congress included no other means to earn the label “highly qualified,” and, by unequivocal 10 implication, excluded any other potential avenue–-particularly any other method that did not 11 require completion of the teacher certification or licensing process.8 ED’s regulation, which uses

12 the present progressive verb tense to allow an individual who “is participating” in an alternative

13 certification program to be deemed “highly qualified” (34 C.F.R. § 200.56(a)) stands in stark

14 contrast to the two routes which Congress articulated in its statutory definition of “highly

15 qualified” teacher. This contrast, along with the regulation’s granting HQT status to teachers-in-

16 training making “progress toward full certification” versus teachers who have “obtained full

17 State certification,” makes plain the irreconcilable conflict between Congress’ and ED’s

18 definitions of a “highly qualified” teacher.

19

“A regulation may not serve to amend a statute, Koshland v. Helvering, 298 U.S. 441,

20 447 (1936), nor add to the statute ‘something which is not there.’ United States v. Calamaro, 354

21 U.S. 351 (1957).” California Cosmetology Coalition v. Riley, 110 F.3d 1454, 1460 (9th Cir.

22 1997). But that is exactly what Defendants have done here, by adding to the category of “highly

23 qualified” those individuals who have not yet “obtained full State certification,” (20 U.S.C.

24 § 7801(23)(A)(i)), who are merely “participating in an alternate route to certification program,”

25

26 8 The maxim expressio unius exclusio alterius—the expression of one item of an associated

27

group or series excludes another left unmentioned—is apt here. See, e.g, United States Term Limits v. Thornton, 514 U.S. 779, 793 (1995); Chevron U.S.A. v. Echazabal, 536 U.S. 73, 81

28 (2002) (citations omitted).

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1 (34 C.F.R. § 200.56(a)). Congress could easily have chosen to add additional or more lenient

2 means to obtain the status of “highly qualified” but it elected not to do so. It could have blessed

3 the use of teachers merely working towards certification but it did the exact opposite. ED,

4 therefore, exceeded its authority when it issued the regulation defining a “highly qualified”

5 teacher. See California Cosmetology Coalition, 110 F.3d at 1457-59 (holding that Secretary of

6 Education’s regulations governing the amount of money schools could retain from student

7 financial aid programs when students withdrew from schools were inconsistent with Congress’s 8 amendments to the Higher Education Act and in excess of the Secretary’s authority.)

9

In fact, courts are particularly reluctant to condone regulatory tinkering with Congress’

10 statutory definitions, such as the one involved here. As the Ninth Circuit has warned, where a

11 statute provides an unambiguous definition, “no deference is due to the [agency’s] construction

12 of the statutory term.” Shivaraman v. Ashcroft, 360 F.3d 1142, 1146 (9th Cir. 2004). See also

13 Eisinger v. Fed. Labor Relations Auth., 218 F.3d 1097, 1105 (9th Cir. 2000); Miller v. AT & T

14 Corp., 250 F.3d 820, 834 (4th Cir. 2001); Ventana Wilderness Alliance v. Bradford, 2007 U.S.

15 Dist. LEXIS 48366, *7 (N.D. Cal. 2007) (court must first consider whether “statutory or

16 regulatory provision expressly defines the meaning of the term at issue”).

17

In Eisinger, 218 F.3d 1097, 1104-05 (9th Cir. 2000), for example, the Ninth Circuit

18 invalidated a labor regulation denying individuals standing to file certain petitions, where the

19 underlying statute explicitly permitted “any person” to file such a petition and defined the term

20 “person” to include an individual. In reaching its decision, the court noted:

21

As a rule, [a] definition which declares what a term “means”. . .

22

excludes any meaning that is not stated. We conclude that the

intent of Congress was unambiguous. Congress has permitted

23

“any person” to file a § 7111 petition and specifically defined a

24

“person” as an “individual.” Given the clarity of Congress’s intent in this case, we will not inquire beyond the first step of the

25

Chevron test.

26 Id. at 1105 (citations omitted). Here, as in Eisinger, Congress’s intent regarding what is meant

27 by the term “highly qualified” teacher is unambiguously expressed in the Act’s definition and

28 excludes any other meaning not stated therein.

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1

C. ED’s Regulation Also Conflicts With Congress’ Explicit Exclusion of Provisionally-Certified Teachers From the “Highly Qualified” Definition.

2

3

The regulation runs afoul of the statute in another respect. The NCLB Act specifically

4 excludes from the definition of “highly qualified” those teachers who have had “certification or

5 licensure requirements waived on an emergency, temporary, or provisional basis.” 20 U.S.C.

6 § 7801(23)(A)(ii). This provision emphasizes the clear congressional declaration in section

7 7801(23)(A)(i) that teachers must have already “obtained full State certification” or licensure to

8 be deemed “highly qualified.” Id. (emphasis added). Yet, ED’s regulation permits participants

9 in alternative route teacher certification programs to be deemed “highly qualified” only on a

10 provisional basis “not to exceed three years” 34 C.F.R. § 200.56(a)(2)(ii)(A)(3). The notion that

11 a temporary or provisional certification “not to exceed three years” is equivalent to “full State

12

certification” is refuted merely by stating it.9

13

ED itself admits this irreconcilable conflict between its regulation—certifying alternative

14 route participants as “highly qualified” for a limited period of only three years—and Congress’s

15 exclusion of “emergency, temporary, or provisional[ly]” certified teachers from the definition of

16 “highly qualified.” In the rulemaking history surrounding ED’s regulation, in response to

17 comments made regarding the proposed definition of a “highly qualified” teacher, ED concedes

18 that its regulation permitting alternative route participants to be labeled “highly qualified” for up

19 to three years is the “one exception” to the statutory exclusion of “emergency, temporary, or

20 provisional[ly]” credentialed teachers from the definition of “highly qualified.” See 67 Fed. Reg.

21 71710, 71764-71765 (Dec. 25, 2002) found in Administrative Record filed with the Court

22 December 14, 2007 (hereinafter referred to by “AR” bates number) at AR0000099-100.

23 Unfortunately for Defendants, there is no statutory basis for creating this “one exception.”

24

25

26

27

9 In California, full certification comes in the form of preliminary, professional clear and/or life credentials. See CAL. EDUC. CODE § 44274.2 (requirements for preliminary and professional

28 clear credentials); CAL. EDUC. CODE § 44251 (length of time for which credentials are valid).

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1

D. The Statute Creates No Ambiguity.

2

The statute’s one explicit reference to alternative certification routes creates no ambiguity

3 sufficient to justify ED’s adding a third avenue for “highly qualified” status. The reference

4 comes in a parenthetical—“(including certification obtained through alternative routes to

5 certification)”—that modifies “has obtained full State certification as a teacher,” 20 U.S.C.

6 § 7801(23)(A)(i). This parenthetical merely describes a way in which the required “full State

7 certification” might be obtained, clarifying that traditional teacher preparation programs and

8 alternative certification programs are both equally regarded methods of obtaining “full State

9 certification.” Whichever route an individual pursues, however, the Act clearly states that the

10 teacher must already have “obtained” full certification to be labeled “highly qualified.” It does

11 not, as ED’s regulation does, permit an individual still “participating in an alternative route to

12 certification program,” 34 C.F.R. § 200.56 (a)(2)(ii) (emphasis added), to be considered “highly

13 qualified.”

14

15

III. ED’S INTERPRETATION OF THE STATUTE IS INCONSISTENT WITH THE LEGISLATIVE

16

HISTORY AND PURPOSE OF THE NCLB ACT AND THUS IS NOT ENTITLED TO DEFERENCE UNDER THE CHEVRON TEST.

17

According to Chevron, given the clarity of NCLB’s HQT definition the Court need look

18 no further to reject ED’s overbroad regulation. Nonetheless, even were the Court to find some

19 ambiguity in Congress’s definition of “highly qualified” teacher, ED’s regulation should not be

20 accorded deference under part two of the Chevron analysis because it is “manifestly contrary to

21 the statute.” Chevron, 467 U.S. at 843-44. In addition to the text of a statute, courts look to a

22 statute’s history and purpose to determine whether deference is due. Int’l Bhd. of Teamsters,

23 Chauffeurs, Warehousemen & Helpers of Am. v. Daniel, 439 U.S. 551, 566 n.20 (1979); Nat’l

24 Muffler Dealers Ass’n v. United States, 440 U.S. 472 (1979).

25 A. The Legislative History Reflects Congressional Intent That Only Fully

26

Certified Teachers Should Be Considered “Highly Qualified.”

27

There is relatively little legislative history because the adoption of the precise definition

28 chosen by Congress was quick and uncontroversial. In the Conference Report, in which

15
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1 Congress settled on the requirement that teachers be “highly qualified,” the Conference

2 Committee agreed, with no debate or disagreement, on the statute’s current definition, being

3 clear to insert “full” before “state certification” and adding the provision excluding individuals

4 teaching on an emergency or temporary basis from HQT status. CONF. REP. NO. 107-334 to

5 accompany HR 1 (Dec. 12, 2001). In approving the language in the Act, Congress expressed no

6 hesitation or concern about the heightened standard being set for teacher qualification. That

7 Congress viewed this requirement as essential, unambiguous and unyielding is confirmed by

8 both the absence of debate, amendments or controversy concerning the statute’s “highly

9 qualified” definition and by statements of support for raising teacher quality standards, including

10 from California members.

11

Congresswoman Solis (Los Angeles) criticized the “overabundance of teachers who do

12 not have credentials” in her district and urged the conferees “to remember those low income

13 students, the new face of California and the country.” 147 CONG. REC. H4121-01, at *H4127-

14 H4128 (July 18, 2001). Congressman Miller (Martinez), the senior Democrat on the House

15 Education and Labor Committee and a key player in securing the passage of NCLB, highlighted

16 the promise of the Act in urging his colleagues to pass the bill:

17

. . . the poorest school districts with the poorest children, as the President will

18

point out, and the poorest performing children, under this legislation, within 4

years they are going to have to have a qualified teacher in every classroom. Today

19

they have teachers on emergency credentials. Today they have teachers on

provisional credentials. They are going to have to get those teachers trained,

20

certified and qualified to teach in the subject matter in which they are teaching.

21 147 CONG. REC. H2611-01, at *H2626 (May 23, 2001). Senator Lieberman, in directly praising

22 the Conference Committee’s “highly qualified” definition explained that the “high state

23 standard” qualification requirements “ensure that all teachers have the crucial knowledge

24 necessary to ensure that students may meet the state’s challenging academic achievement

25 standards in all core subjects.” 147 CONG. REC. S13365 (Dec. 18, 2001).

26

In fact, some of the strongest legislative statements confirming what the “highly

27 qualified” definition intended arose after the Act’s passage when ED joined the issue by

28 circulating draft guidance on June 6, 2002, 148 CONG. REC. S5341, 5342-43 (June 11, 2002), and

16
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1 then noticing its proposed regulation defining “highly qualified” two months later. See 67 Fed.

2 Reg. 51018 (Aug. 6, 2002) at AR0000034. Both the House and Senate education committees

3 strongly opposed ED’s proposed “highly qualified” definition. Senator Kennedy, chairman of

4 the Health, Education, Labor and Pensions Committee (“HELP”) and another NCLB leader,

5 remarked: “In the draft guidance. . . .[a]lternate route teachers can be considered highly qualified

6 while holding a provisional certification while they are working to obtain full certification. This

7 is inconsistent with the definition in [NCLB] which holds the same standards for all teachers.”

8 148 CONG. REC. S 5341, 5342-43 (June 11, 2002) (emphasis added). Comments to ED’s

9 proposed regulations by the majority members of the Senate HELP Committee stated that: “[t]he

10 provision exempts teachers with alternative certification from the certification requirement. This

11 directly contradicts the statute. The statutory language is clear that all teachers must be

12 certified. This should be struck.” AR0000136 (emphasis added). The House Democratic

13 Committee Staff made similar comments:

14

This provision. . . specifically exempts teachers in alternative certification

15

programs from obtaining certification if a State deems they are permitted to teach

in the classroom. This would allow uncertified teachers to be considered highly

16

qualified. This contradicts the statute. . . .

17 AR0000110 (emphasis in original).

18

19

B. ED’s Proffered Reasons for Its “Highly Qualified” Definition are Without

20

Merit.

21

In response to these comments from both the House and Senate sub-committees on

22 education—as well as comments from numerous other interested organizations critical of the 23 proposed regulation10—ED proffered two reasons to justify the “exception” (67 Fed. Reg.

24 71764-71765 (Dec. 2, 2002) (AR0000099)) it made in including alternative route participants

25 within the definition of “highly qualified” teacher:

26

27

10 Among those who criticized the proposed regulation were the National Educational Association (AR0000155), Education Trust (AR0000196), the Citizens’ Commission on Civil

28 Rights (AR0000272), and the Center for Law and Education (AR0000336).

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1

First, Congress has chosen both to authorize and fund two alternative route programs, Troops-to-Teachers and Transition to Teaching, in Title II, part C of

2

the ESEA, and has permitted States and LEAs to use Title II, part A formula grant

funds to hire teachers in alternative route programs. Hence, we do not believe that

3

Congress intended that teachers in alternative route program would be unable to

4

teach until they had obtained full State certification. Beyond this, we believe that the LEAs [e.g., districts] can and should be able to continue to effectively use

5

alternative routes to certification as a mechanism for increasing the numbers of

teachers who are capable of providing effective instructions, and, indeed, that

6

these alternative routes can also serve as models for the certification system as a

whole. 7

8 Id. In fact, nowhere do the statutes authorizing these programs alter the Act’s HQT definition,

9 nor do they state that participants instantaneously become “highly qualified” the day they join

10 the alternative route program, nor, conversely, do they prohibit participants from teaching before

11 they earn HQT designation. To the contrary, these two programs are designed to help

12 participants “to become highly qualified teachers.” See, e.g., 20 U.S.C. §§ 6672(b)(1),

13 6674(f)(1)(A) (Troops-to-Teachers) (emphasis added); see also 20 U.S.C. § 6681 (Transition to

14 Teaching programs use funds “to develop a teacher corps. . . as highly qualified teachers”

15 (emphasis added)).

16

ED’s second stated rationale—that “alternative routes can also serve as models for the

17 certification system as a whole” (67 Fed. Reg. 71764 (Dec. 2, 2002); AR0000099)—reflects a

18 policy judgment, one the statute permits ED no room to make. The legislative history, statutory

19 framework and administrative record confirm what the statutory language already makes clear:

20 Congress meant exactly what it said in demanding that only fully certified teachers earn the label

21 of “highly qualified.”

22

23

C. ED’s Regulation is Inconsistent With the Statutory Scheme and Undermines

NCLB’s Goals of Ensuring Access to High Quality Teachers—Particularly

24

for Poor and Minority Students—and of Public Transparency.

25

The Supreme Court has long recognized that administrative regulations that are

26 inconsistent with their statutory mandate or that frustrate the policies that Congress sought to

27 implement must be rejected. FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 32

28 (1981); see also Kaiser Aluminum & Chem. Corp. v. Bonneville Power Admin., 261 F.3d 843,

18
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1 848-49 (9th Cir. 2001). In determining the meaning, or ambiguity, of a term and thus whether

2 Chevron deference is due to an agency’s interpretation of that term, “the words of a statute must

3 be read in their context and with a view to their place in the overall statutory scheme.” Nat’l

4 Ass’n of Home Builders v. Defenders of Wildlife, 127 S. Ct. 2518, 2534 (2007). Here, ED’s

5 regulation labeling teachers participating in alternative certification programs as “highly

6 qualified” undermines the overall statutory scheme and legislative purposes of NCLB by

7 frustrating the numerous provisions of the Act designed to ensure all students—and especially

8 poor and minority students—have full and equal access to high quality, fully trained and certified

9 teachers in order to promote universal proficiency in academic subjects.

10

The primary goals of NCLB are to make all students “proficient” in reading and math by

11 2014 and to close the achievement gap between low-income and minority students and their

12 more affluent, white peers. See 20 U.S.C. §§ 6301, 6311(b)(2)(F), 6311(b)(2)(B). As stated by

13 Defendant Secretary of Education Margaret Spellings (see Exh. 1), a cornerstone of NCLB’s

14 accountability scheme for ensuring that these ambitious goals are met is that all children must be

15 taught by “highly qualified” teachers, defined in the statute as teachers with “full state

16 certification” who have “not had certification or licensure requirements waived on an

17 emergency, temporary, or provisional basis” (20 U.S.C. § 7801(23)(A)).

18

Thus, ensuring that all students, particularly poor and minority students, have high

19 quality teachers is central to fulfilling the purposes of the Act. Defendants’ regulation runs

20 counter to these purposes by permitting states, districts, and schools to lower the standard of

21 quality of the teacher all students are owed under NCLB. Rather than ensuring that all students

22 have a teacher who has at least obtained full state certification and/or (where a state has such)

23 passed the state’s summative teacher licensing examination, ED’s regulation permits students to

24 be taught by teachers who are still in training in alternative route programs—perhaps just

25 beginning them—who are only making “satisfactory progress toward full certification,” and who

26 are only certified on a provisional basis not to exceed three years. 34 C.F.R. § 200.56(a)(2)(ii).

27 Whatever ambiguity one might possibly find in the Act could not justify such a dramatic

28 reduction in the standard of teacher all students are owed.

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1

By so significantly reducing the minimum standard of a “highly qualified” teacher, ED

2 substantially undermines all the various purposes of the Act’s teacher quality provisions, see

3 Facts A.2., supra. Namely: (1) the core requirement that all students receive a “highly qualified”

4 teacher in core subjects is radically watered down; (2) the requirement that poor and minority

5 students not receive disproportionately more teachers who are underprepared—as evidenced by

6 the dramatic data in California concerning the distribution of interns, see Facts C.2., supra—is

7 abandoned; (3) the requirement that states and districts develop plans to ensure all students have

8 fully prepared and certified teachers is ignored with respect to teachers-in-training in alternative

9 route programs; and (4) the public accountability requirements—from the 4-week letters to

10 parents of students taught by not-“highly qualified” teachers, to school, district, state, and federal

11 reports on the distribution of fully prepared and certified teachers—are seriously undercut when

12 teachers-in-training are treated the same as those who are fully prepared and certified.

13

In sum, because ED’s regulation frustrates Congress’ goals of assuring all students access

14 to high quality teachers and of transparency in and accountability for providing all students with

15 such teachers, it is owed no deference and must be struck down even under the second Chevron

16 test should the Court ever reach the question.

17

18

IV. BECAUSE ED’S REGULATION CONFLICTS WITH THE NCLB ACT, THE COURT SHOULD

19

INVALIDATE IT AND ISSUE AN INJUNCTION TO ENSURE COMPLIANCE.

Because ED has exceeded its authority in adopting the challenged regulation defining the 20

term “highly qualified” teacher, the Court should deem the regulation void and unenforceable, and 21

grant the declaratory and injunctive relief that Plaintiffs seek. 22

It is well-established that an agency regulation conflicting with a statute is null. In 23

Manhattan Gen. Equip. Co. v. Comm’r of Internal Revenue, 297 U.S. 129 (1936), the Supreme Court 24

stated: 25

26

The power of an administrative officer or board to administer a federal statute and to

prescribe rules and regulations to that end is not the power to make law, for no such

27

power can be delegated by Congress, but the power to adopt regulations to carry into

effect the will of Congress as expressed by the statute. A regulation which does not

28

do this, but operates to create a rule out of harmony with the statute, is a mere nullity.

20
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND EXHIBITS IN SUPPORT
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1 Id. at 134.

2

The Ninth Circuit has consistently prohibited the enforcement of agency regulations where

3 such regulations were an improper exercise of rulemaking authority and conflicted with the

4 underlying statute. See, e.g., California Cosmetology Coalition, 110 F.3d at 1456-58, 1461

5 (affirming summary judgment and permanent injunction as to regulations that failed to “effect[] the

6 statutory scheme” and “add[ed] ‘something which is not there’ to the explicit language of the

7 [statute] and exceed[ed] the Secretary’s authority.”); accord Gorbach v. Reno, 219 F.3d 1087, 1099

8 (9th Cir. 2000) (affirming district court’s grant of injunctive relief prohibiting the INS from

9 proceeding with denaturalization proceedings under unlawful regulation).11

10

Under the Administrative Procedure Act, a court is authorized to “set aside agency

11 action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or

12 otherwise not in accordance with the law.” 5 U.S.C. § 706. As set forth in Sections II and III

13 above, ED’s regulation defining the term “highly qualified” teacher to include a teacher who is

14 currently participating in an alternative teacher preparation program is manifestly contrary to the

15 definition provided by Congress in the NCLB statute itself. Thus, pursuant to the APA, the

16 reviewing court “shall hold unlawful and set aside” (5 U.S.C. § 706) ED’s regulation. See

17 Natural Res. Def. Council v. EPA, 966 F.2d 1292, 1297, 1304 (9th Cir. 1992); Citizens for Better

18 Forestry v. U.S. Dept. of Agric., 481 F. Supp. 2d 1059 (N.D. Cal. 2007); Northwest Envtl.

19 Advocates v. EPA, 2005 U.S. Dist. LEXIS 5373 (N.D. Cal. 2005).

20

Moreover, this Court has authority to grant injunctive relief that is nationwide in scope,

21 where, as here, a federal agency’s misinterpretation of a federal statute has a nationwide effect.

22 In Earth Island Institute v. Ruthenbeck, 490 F.3d 687 (9th Cir. 2007), for example,

23 environmental organizations challenged United States Forest Service regulations that excluded

24

11 See also Schneider v. Chertoff, 450 F.3d 944 (9th Cir. 2006) (affirming declaratory and

25 injunctive relief where the Department of Homeland Security issued regulations that were

inconsistent with, and ultra vires to, the Nursing Relief Act); Brown v. Harris, 491 F. Supp. 845, 26 847-48 (N.D. Cal. 1980) (on summary judgment, enjoining Department of Housing and Urban

27

Development from “further enforcement and dissemination for purposes of enforcement” of Section 8 regulation where regulation permitted property owner to play a role in evictions,

28 “contrary to the clear and definite words of the statute”).

21
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Case4:07-cv-04299-PJH Document52 Filed01/18/08 Page29 of 30

1 from notice, comment, and administrative appeal any agency decision that does not require an

2 environmental assessment or impact statement. The Ninth Circuit held that the regulations

3 conflicted with the Appeals Reform Act, which does not provide for any exemptions or

4 exclusions from the USFS’s mandatory duty to provide notice, comment, and administrative

5 appeal for decisions implementing Forest Plans, and affirmed the district court’s nationwide

6 injunction precluding any enforcement and implementation of the invalidated regulations. Id. at

7 697-699. In doing so, the court noted that the nationwide injunction was not discretionary, but

8 rather was “compelled by the text of the Administrative Procedure Act.” Id. at 699; cf. Bresgal

9 v. Brock, 843 F.2d 1163 (9th Cir. 1987) (holding that Secretary of Labor’s definition of 10 “agricultural employment” conflicted with the Migrant and Seasonal Agricultural Workers

11 Protection Act and affirming declaratory relief nationwide in scope).

12

While the relief Plaintiffs seek is necessarily nationwide in nature, it will not unduly

13 disrupt the public school system or impose undue burdens on states, districts or schools. The

14 Court’s order should not displace any teachers presently under contract for the current school

15 year. Moreover, it is unclear how, if at all, the Court’s order would affect near-term hiring, given

16 Defendants’ current enforcement practices that only require states and districts to make “an

17 adequate effort” toward the HQT goal and that thereby continue to permit the hiring of non18 “highly qualified” teachers.12 In addition to pressuring states and districts to make this “adequate

19 effort,” what the Court’s order would achieve is precisely what Congress intended: (1) public

20

21

12 Not a single state met the deadline for ensuring that all students are taught by a “highly

qualified” teacher in their core classes by the end of the 2005-06 school year. Exh. 15 (Spellings

22 Letter, July 23, 2007); 1st Am. Compl. at ¶ 51; Answer to 1st Am. Compl. at ¶ 51. In October

2005, Defendant Spellings, on a state-by-state basis, extended until the end of the 2006-07 23 school year the deadline by when all students were to be taught by a “highly qualified” teacher.

24

Exh. 1 (Spellings Letter, Oct. 21, 2005). Due to a lack of current data, it is unclear whether any state met the 2006-07 extended deadline. Answer to 1st Am. Compl. at 54. In a public letter

25 dated July 23, 2007, Secretary Spellings assured States that they would not be sanctioned for
failing to meet the 100% “highly qualified teacher” 2006-07 deadline provided they make “an 26 adequate effort” towards meeting the HQT goal. Exh. 15.

27

28

22
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1 reporting of accurate data regarding the true numbers of “highly qualified” teachers, (2) a more

2 equitable distribution of non-“highly qualified” teachers, including participants in alternative

3 preparation programs, and (3) state and district plans for meeting the “highly qualified” teacher

4 goal that are based on accurate data and definitions for “highly qualified” teachers.

5

6

CONCLUSION

7

For all of the reasons stated above, Plaintiffs respectfully request that this Court grant

8 Plaintiffs’ Motion for Summary Judgment in all respects.

9

10 Dated: January 18, 2008 11

Respectfully submitted,

12

___________________________

13

JOHN T. AFFELDT

14

15

___________________________

16

TARA KINI

17

JENNY PEARLMAN

PUBLIC ADVOCATES, INC.

18

Attorneys for Plaintiffs

19

20

21

22

23

24

25 26

27 28

23
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND EXHIBITS IN SUPPORT
CASE NO. 07-04299 PJH

 
 Case 3:07-cv-04299-PJH Document 76 Filed 06/17/2008 Page 1 of 12

United States District Court For the Northern District of California

1

2

3

4

5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7

8

9 SONYA RENEE, et al.,
10 Plaintiffs,
11 v.
12 MARGARET SPELLINGS, Secretary,
13 United States Department of Education, et al.,
14 Defendants.
15 _______________________________/

No. C 07-4299 PJH
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

16

The parties’ cross-motions for summary judgment came on for hearing before this

17 court on April 23, 2008. Plaintiffs appeared by their counsel John T. Affeldt, Tara Kini, and

18 Jeffrey A. Simes, and defendants appeared by their counsel Michael Q. Hyde and Richard

19 B. Mellman. Having read the parties’ papers and carefully considered their arguments and

20 the relevant legal authority, and good cause appearing, the court hereby GRANTS

21 defendants’ motion and DENIES plaintiffs’ motion.

22

INTRODUCTION

23

This is a case brought under the Administrative Procedures Act, 5 U.S.C. § 701, et

24 seq. (“APA”), challenging the implementation of the “highly qualified” teacher provisions of

25 the federal No Child Left Behind Act of 2001, 20 U.S.C. §6301, et seq. (“NCLB Act”).

26 Plaintiffs allege that defendant Secretary of the United States Department of Education has

27 promulgated a regulation that violates the NCLB Act’s standard for “highly qualified”

28 teachers by “relabeling” more than 10,000 “novice teachers” still in training in California and

Case 3:07-cv-04299-PJH Document 76 Filed 06/17/2008 Page 2 of 12

United States District Court For the Northern District of California

1 tens of thousands of such teachers nationwide as “highly qualified.”

2

Plaintiffs are students and parents of students who attend California public schools,

3 and two organizations – Californians for Justice Education Fund, and the California

4 Association of Community Organizations for Reform Now.

5

Each side now seeks summary judgment.

6

BACKGROUND

7

The NCLB Act, which was signed into law in 2002, required that, in schools receiving

8 Title I funds, all teachers hired to teach “core academic subjects”1 after the 2002-2003

9 school year be “highly qualified,” and that by the end of the 2005-2006 school year, all

10 school districts have achieved a result of 100% “highly qualified” teachers. 20 U.S.C.

11 § 6319(a)(1), (2), (3). The NCLB Act defines “highly qualified” as follows:

12

“[H]ighly qualified”

13

(A) when used with respect to any public elementary school or secondary

school teacher teaching in a State, means that –

14

(i) the teacher has obtained full State certification as a teacher

15

(including certification obtained through alternative routes to

certification) or passed the State teacher licensing examination, and

16

holds a license to teach in such State, except that when used with respect to

any teacher teaching in a public charter school, the term means that the

17

teacher meets the requirements set forth in the State's public charter school

law; and

18

(ii) the teacher has not had certification or licensure requirements

19

waived on an emergency, temporary, or provisional basis;

20

(B) when used with respect to –

21

(i) an elementary school teacher who is new to the profession, means that the

teacher

22

(I) holds at least a bachelor's degree; and

23

(II) has demonstrated, by passing a rigorous State test, subject

24

knowledge and teaching skills in reading, writing, mathematics,

and other areas of the basic elementary school curriculum

25

(which may consist of passing a State-required certification or

licensing test or tests in reading, writing, mathematics, and other

26

27

1 “Core academic subjects” are “English, reading or language arts, mathematics,

28

science, foreign languages, civics and government, economics, arts, history, and geography.” 20 U.S.C. § 7801(11).

2

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United States District Court For the Northern District of California

1

areas of the basic elementary school curriculum); or

2

(ii) a middle or secondary school teacher who is new to the profession, means

that the teacher holds at least a bachelor's degree and has demonstrated a high

3

level of competency in each of the academic subjects in which the teacher teaches

by –

4

(I) passing a rigorous State academic subject test in each of the

5

academic subjects in which the teacher teaches (which may consist of

a passing level of performance on a State-required certification or

6

licensing test or tests in each of the academic subjects in which the

teacher teaches); or

7

(II) successful completion, in each of the academic subjects in

8

which the teacher teaches, of an academic major, a graduate

degree, coursework equivalent to an undergraduate academic

9

major, or advanced certification or credentialing; and

10

(C) when used with respect to an elementary, middle, or secondary school teacher

who is not new to the profession, means that the teacher holds at least a bachelor's

11

degree and –

12

(i) has met the applicable standard in clause (i) or (ii) of subparagraph (B),

which includes an option for a test; or

13

(ii) demonstrates competence in all the academic subjects in which the

14

teacher teaches based on a high objective uniform State standard of

evaluation that

15

(I) is set by the State for both grade appropriate academic subject

16

matter knowledge and teaching skills;

17

(II) is aligned with challenging State academic content and student

academic achievement standards and developed in consultation with

18

core content specialists, teachers, principals, and school

administrators;

19

(III) provides objective, coherent information about the teacher's

20

attainment of core content knowledge in the academic subjects in

which a teacher teaches;

21

(IV) is applied uniformly to all teachers in the same academic subject

22

and the same grade level throughout the State;

23

(V) takes into consideration, but not be based primarily on, the time the

teacher has been teaching in the academic subject;

24

(VI) is made available to the public upon request; and

25

(VII) may involve multiple, objective measures of teacher

26

competency.

27 20 U.S.C.A. § 7801(23) (emphasis added).

28

On December 2, 2002, the Secretary issued final regulations implementing the

3

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United States District Court For the Northern District of California

1 NCLB Act. Those regulations became effective January 2, 2003. The regulation at issue in

2 the present dispute provides as follows:

3

To be a "highly qualified teacher," a teacher . . . must meet the requirements

in paragraph (a) and either paragraph (b) or (c) of this section.

4

(a) In general.

5

(1) Except as provided in paragraph (a)(3) of this section, a teacher covered

6

under § 200.55 must –

7

(i) Have obtained full State certification as a teacher, which

may include certification obtained through alternative

8

routes to certification; or

9

(ii) (A) Have passed the State teacher licensing

examination; and

10

(B) Hold a license to teach in the State.

11

(2) A teacher meets the requirement in paragraph (a)(1) of this section if

12

the teacher –

13

(i) Has fulfilled the State's certification and licensure

requirements applicable to the years of experience the teacher

14

possesses; or

15

(ii) Is participating in an alternative route to certification

program under which –

16

(A) The teacher –

17

(1) Receives high-quality professional

18

development that is sustained, intensive, and

classroom-focused in order to have a positive

19

and lasting impact on classroom instruction,

before and while teaching;

20

(2) Participates in a program of intensive

21

supervision that consists of structured

guidance and regular ongoing support for

22

teachers or a teacher mentoring program;

23

(3) Assumes functions as a teacher only for a

specified period of time not to exceed three years;

24

and

25

(4) Demonstrates satisfactory progress toward full

certification as prescribed by the State; and

26

(B) The State ensures, through its certification and

27

licensure process, that the provisions in paragraph (a)(2)(ii)

of this section are met.

28

4

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United States District Court For the Northern District of California

1

(3) A teacher teaching in a public charter school in a State must meet the

certification and licensure requirements, if any, contained in the State's charter

2

school law.

3

(4) If a teacher has had certification or licensure requirements waived on an

emergency, temporary, or provisional basis, the teacher is not highly qualified.

4

(b) Teachers new to the profession. A teacher covered under § 200.55 who is new to

5

the profession also must –

6

(1) Hold at least a bachelor's degree; and

7

(2) At the public elementary school level, demonstrate, by passing a

rigorous State test (which may consist of passing a State certification or

8

licensing test), subject knowledge and teaching skills in reading/language

arts, writing, mathematics, and other areas of the basic elementary school

9

curriculum; or

10

(3) At the public middle and high school levels, demonstrate a high level of

competency by –

11

(i) Passing a rigorous State test in each academic subject in which the

12

teacher teaches (which may consist of passing a State certification or

licensing test in each of these subjects); or

13

(ii) Successfully completing in each academic subject in which the

14

teacher teaches –

15

(A) An undergraduate major;

16

(B) A graduate degree;

17

(C) Coursework equivalent to an undergraduate major; or

18

(D) Advanced certification or credentialing.

19

(c) Teachers not new to the profession. A teacher covered under § 200.55

who is not new to the profession also must –

20

(1) Hold at least a bachelor's degree; and

21

(2) (i) Meet the applicable requirements in paragraph (b)(2) or (3) of this

22

section; or

23

(ii) Based on a high, objective, uniform State standard of evaluation in

accordance with section 9101(23)(C)(ii) of the ESEA, demonstrate

24

competency in each academic subject in which the teacher teaches.

25 34 C.F.R. § 200.56 (emphasis added).

26

Plaintiffs claim that this regulation permits individuals who are merely “participating

27 in an alternative route to certification program,” 34 C.F.R. § 200.56(a)(2)(ii), and who have

28 not yet “obtained full state certification” (as required under 20 U.S.C. § 7801(23)(A)) to be

5

Case 3:07-cv-04299-PJH Document 76 Filed 06/17/2008 Page 6 of 12

United States District Court For the Northern District of California

1 deemed “highly qualified.” Thus, plaintiffs assert, a teacher-in-training with no prior training

2 and no prior teaching experience may be deemed “highly qualified” the very day he or she

3 enters an “alternative certification program” and begins to serve as a classroom teacher.

4 Plaintiffs argue that this interpretation of “highly qualified” conflicts with the definition of

5 “highly qualified” in the NCLB Act, because the NCLB Act requires “full State certification.”

6

Plaintiffs bring three causes of action. First, they allege a claim under the APA,

7 asserting that 34 C.F.R. § 200.56(a)(2)(ii) (“the challenged regulation”) is contrary to the

8 plain language of the NCLB Act, and is inconsistent with the intent of Congress. Second,

9 they assert a claim for declaratory relief under 28 U.S.C § 2201, seeking a judicial

10 declaration that the challenged regulation is unlawful and in excess of defendants’ statutory

11 authority. Third, they allege a claim for injunctive relief under 28 U.S.C. § 2202, seeking an

12 order enjoining defendants from further use of the unlawful “highly qualified” standard set

13 forth in the challenged regulation.

14

DISCUSSION

15 A. Legal Standard

16

1. Motions for Summary Judgment

17

Summary judgment is appropriate when there is no genuine issue as to material

18 facts and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56.

19 Material facts are those that might affect the outcome of the case. Anderson v. Liberty

20 Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is “genuine” if there

21 is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id.

22

A party seeking summary judgment bears the initial burden of informing the court of

23 the basis for its motion, and of identifying those portions of the pleadings and discovery

24 responses that demonstrate the absence of a genuine issue of material fact. Celotex Corp.

25 v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof

26 at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other

27 than for the moving party. Southern Calif. Gas. Co. v. City of Santa Ana, 336 F.3d 885,

28 888 (9th Cir. 2003).

6

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United States District Court For the Northern District of California

1

On an issue where the nonmoving party will bear the burden of proof at trial, the

2 moving party can prevail merely by pointing out to the district court that there is an absence

3 of evidence to support the nonmoving party’s case. Celotex, 477 U.S. at 324-25. If the

4 moving party meets its initial burden, the opposing party must then set forth specific facts

5 showing that there is some genuine issue for trial in order to defeat the motion. See Fed.

6 R. Civ. P. 56(e); Anderson, 477 U.S. at 250.

7

2. Challenges Under the APA

8

The APA authorizes courts to “set aside agency action, findings, and conclusions

9 found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

10 with the law.” 5 U.S.C. § 706. In reviewing an administrative agency’s construction of a

11 statute it administers, the court must first consider whether Congress “has directly spoken

12 to the precise question at issue.” If the intent of Congress is clear, “that is the end of the

13 matter; for the court, as well as the agency, must give effect to the unambiguously

14 expressed intent of Congress.” Chevron, U.S.A., Inc. v. Natural Res. Defense Council,

15 Inc., 467 U.S. 837, 842-43 (1984).

16

If, however, the statute is silent or ambiguous on the issue, the court must defer to

17 the agency’s reasonable interpretation of the statute so long as the interpretation is

18 consistent with the purposes of the statute. Id. at 843-45. The construction of a statute by

19 those charged with its administration is entitled to substantial deference. See United States

20 Rutherford, 442 U.S. 544, 553 (1979); McKart v. United States, 395 U.S. 185, 193-94

21 (1969) (an agency is created for purpose of applying a statute in the first instance).

22

Thus, if the agency’s interpretation is reasonable and not contrary to the discernable

23 intent of Congress, it should be approved even though it is not the only reasonable

24 interpretation or the one the reviewing court would make if deciding the issue in the first

25 instance. See Unemployment Compensation Comm'n of Alaska v. Aragon, 329 U.S. 143,

26 153-54 (1946); see also Chevron, 467 U.S. at 842-43. However, an agency’s interpretation

27 of a statute is not entitled to deference when it goes beyond the meaning that the statute

28 can bear. MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218, 229 (1994).

7

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United States District Court For the Northern District of California

1 B. The Cross-Motions

2

As indicated above, the NCLB Act defines a “highly qualified” teacher as one who

3 “has obtained full State certification as a teacher (including certification obtained through

4 alternative routes to certification) or passed the State teacher licensing examination.” 20

5 U.S.C. § 7801(23)(A)(i). A “highly qualified” teacher must also satisfy two additional

6 requirements. First, whatever a particular state’s certification or licensure requirements

7 may be, the teacher must not have had them “waived on an emergency, temporary, or

8 provisional basis.” Id. § 7801(23)(A)(ii). Second, to be “highly qualified,” new teachers

9 must have at least a bachelor’s degree and demonstrate subject matter knowledge in a

10 statutorily-defined manner. Id. § 7801(23)(B)(i) (new elementary school teachers);

11 § 7801(23)(B)(ii) (new middle or secondary school teachers).

12

The NCLB Act is silent with regard to any other requirements for “highly qualified”

13 teachers. Congress did not define “full State certification as a teacher (including

14 certification obtained through alternative routes to certification.” Nor did Congress establish

15 standards for determining which teachers will be considered to have “full State

16 certification,” or unambiguously state that a teacher who is participating in an “alternative

17 route” program cannot be highly qualified because he/she has not yet completed that

18 program. Thus, Congress has not “directly spoken to the precise question at issue.”

19 Chevron, 467 U.S. at 842. Because it is not clear what is meant by “full State certification,”

20 the court must proceed to the second step of the Chevron analysis. That is, the court must

21 consider whether the challenged regulation is reasonable and not contrary to the

22 discernable intent of Congress.

23

Plaintiffs argue that the challenged regulation conflicts with the NCLB Act and

24 exceeds its scope, and that it is inconsistent with the legislative history and purpose of the

25 Act; and that it is therefore not entitled to deference. They assert that in allowing teachers

26 who are participating in “alternative route programs” to be considered “fully qualified

27 teachers,” the Department of Education has acted in contravention of the provision in the

28 NCLB Act that “fully qualified teachers” have “full State certification.”

8

Case 3:07-cv-04299-PJH Document 76 Filed 06/17/2008 Page 9 of 12

United States District Court For the Northern District of California

1

Plaintiffs also contend that the legislative history reflects Congressional intent that

2 only fully certified teachers be considered “highly qualified,” and that the members of

3 Congress were concerned about the fact that the poorest school districts with the poorest

4 children often had numerous teachers who were not fully credentialed. In addition, they

5 assert, members of both the House and Senate Education Committees rejected allowing

6 teachers with “alternative certification” to be considered “highly qualified.”

7

Defendants, on the other hand, argue that the challenged regulation is a proper

8 application of agency expertise and is consistent with Congressional intent.2 They assert

9 that the regulation resolves the ambiguity in the NCLB Act’s definition of “highly qualified

10 teacher,” addresses the concerns expressed by Congress in enacting the NCLB Act, and is

11 based on consideration of factors discussed in the administrative record.

12

Defendants dispute plaintiffs’ claim that the challenged regulation permits teachers

13 with no prior training or experience to be deemed “highly qualified.” They contend that the

14 regulation merely defines one way that a teacher may be deemed, for purposes of the

15 NCLB Act’s “highly qualified” teacher requirements, to have “full State certification” to

16 teach, and states when certification may be granted “through” an “alternative route”

17 program.

18

Defendants argue that the regulation is entirely consistent with the minimal other

19 criteria Congress did specify for considering teachers to be “highly qualified” – having at

20 least a bachelor’s degree, and demonstrating relevant subject-matter knowledge – because

21 it includes each of those requirements. Defendants note further that the challenged

22 regulation places additional substantive requirements for teachers in “alternative route”

23 programs considered fully certified under subsection (a)(2)(ii), which would otherwise not

24 be present absent the regulation – that is, a participant in an “alternative route” program

25

26

2 Defendants also contend that plaintiffs lack standing to challenge the regulation because they fail to allege any injury that would be remedied by the proposed relief; that the

27

organizational plaintiffs lack standing to sue on behalf of their members or on their own behalf; and that even if plaintiffs were to succeed, they request relief to which they are not entitled.

28

Because the court finds that the motion can be granted on the merits of the APA claim, the court does not address these additional arguments.

9

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United States District Court For the Northern District of California

1 who has not yet completed the program must also receive high-quality professional

2 development that is sustained, intensive, and classroom-focused; participate in a program

3 of intensive supervision that consists of structured guidance and regular ongoing support;

4 assume functions as a teacher for no more than three years; and demonstrate satisfactory

5 progress toward full certification as prescribed by the state. See 34 C.F.R.

6 § 200.56(a)(2)(ii)(A).

7

Defendants also argue that interpreting § 7801(23)(A) as plaintiffs urge would result

8 in other key provisions of the NCLB Act being disregarded. Defendants assert that a

9 review of the “Transitions to Teaching” programs reauthorized and enacted as part of the

10 NCLB Act, see 20 U.S.C. §§ 6671, et seq., including the “Troops-to-Teachers Program”

11 and the “Transition to Teaching Program,” for which Congress also authorized the

12 Secretary to create a program for the issuance of grants to states for teacher recruitment

13 and retention, demonstrates that Congress could not have meant that “full State

14 certification” requires participants in “alternative route” programs be certified only

15 after completing such programs, and that Congress understood that teachers participating

16 in those programs would also serve as classroom teachers.

17

Defendants contend that Congress created these “alternative route” programs to

18 help local school districts in high-poverty and high-need areas meet their teaching goals by

19 enabling them to recruit capable individuals who had not completed teacher preparation

20 programs and quickly enable those individuals to become teachers in high-need schools.

21 They assert that Congress favored allowing highly-qualified former military personnel with

22 subject-matter knowledge, and mid-career professionals with advanced academic

23 qualifications and work experience, to transition into teaching even though they did not

24 have educational certificates or degrees; and that Congress intended that the qualified

25 participants in these programs would teach in high-need schools.

26

The court finds that the challenged regulation is not arbitrary, capricious, an abuse of

27 discretion, or otherwise not in accordance with the law. First, the regulation does not

28 conflict with the statute. The NCLB Act does not define “full State certification,” except to

10

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United States District Court For the Northern District of California

1 state that it includes “certification obtained through alternative routes to certification.”

2 Plaintiffs apparently assume that the phrase “full State certification as a teacher (including

3 certification obtained through alternative routes to certification)” requires completion of

4 teacher preparation programs prior to certification. However, Congress never stated that

5 teachers must complete any particular program to be considered as having obtained “full

6 State certification” for NCLB Act purposes, or that certification may be obtained only after

7 completion of an “alternative route” to certification. Rather, Congress left undefined what it

8 meant both by “full State certification” and by “certification obtained through alternative

9 routes to certification.”

10

If, as plaintiffs assert, Congress intended that participants in “alternative route”

11 programs have already completed a teacher-training program, that objective could have

12 been accomplished by the words “full State certification.” Such an interpretation would

13 render the parenthetical phrase “(including certification through alternative routes to

14 certification)” superfluous, because participants in “alternative routes” would already be

15 required to complete the teacher training program to have “full State certification.”3

16 Alternatively, if Congress wanted to preclude participants in “alternative route” programs

17 from obtaining “full State certification,” it could have done so by inserting the word “after” in

18 place of “through.”

19

By failing to define the phrase “full State certification as a teacher (including

20 certification obtained through alternative routes to certification),” Congress gave the

21 Secretary the discretion to clarify what the statute permits. Congress empowered the

22 Secretary to “issue such regulations as are necessary to reasonably ensure that there is

23 compliance” with the NCLB Act. 20 U.S.C. § 6571(a). Thus the Secretary has the

24 discretion to determine the meaning of “full State certification” as the Secretary deems

25 necessary.

26

The interpretation of the NCLB Act’s “highly qualified” provision by the Secretary and

27

28

3 Similarly, plaintiffs’ argument that the court should define “full State certification” by looking to the dictionary definition of “full” also ignores the parenthetical in the statute.

11

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United States District Court For the Northern District of California

1 the Department of Education is reasonable. The regulation simply adds the provision that

2 an individual who is “participating in an alternative route to certification program” that fulfills

3 certain requirements may be considered to have “obtained full State certification as a

4 teacher.” The Secretary’s interpretation is also consistent with the other provisions of the

5 NCLB Act – in particular, the provisions regarding the “alternative route” programs.

6 Moreover, as defendants note, Congress’ failure to reverse the Secretary’s regulation after

7 more than five years since its promulgation suggests that Congress does not believe the

8 regulation exceeds the scope of the NCLB Act.

9

CONCLUSION

10

In accordance with the foregoing, the court GRANTS defendants’ motion and

11 DENIES plaintiffs’ motion.

12

The parties shall, within 14 days, submit either a proposed form of judgment or – if

13 further proceedings are necessary – a request for a further case management conference.

14

15 IT IS SO ORDERED.

16 Dated: June 17, 2008 17 18

______________________________ PHYLLIS J. HAMILTON United States District Judge

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23

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12

 
 Case4:07-cv-04299-PJH Document59-1 Filed02/15/08 Page1 of 39

1 JEFFREY S. BUCHOLTZ Acting Assistant Attorney General
2 JOSEPH P. RUSSONIELLO United States Attorney
3 SHEILA M. LIEBER Assistant Branch Director
4 MICHAEL Q. HYDE Trial Attorney
5 Civil Division, Federal Programs Branch United States Department of Justice
6 20 Massachusetts Ave., N.W., Room 7132 P.O. Box 883
7 Washington, D.C. 20044 Tel: (202) 514-2205
8 Facsimile: (202) 616-8470 Email: michael.hyde@usdoj.gov

9 IN THE UNITED STATES DISTRICT COURT

10

FOR THE NORTHERN DISTRICT OF CALIFORNIA

____________________________________

11 SONYA RENEE, et al.,

) Civil Action No. 3:07cv4299-PJH )

12 Plaintiffs,

) DEFENDANTS’ CONSOLIDATED ) MEMORANDUM IN OPPOSITION

13 v.

) TO PLAINTIFFS’ MOTION FOR ) SUMMARY JUDGMENT AND IN

14 MARGARET SPELLINGS, et al.,

) SUPPORT OF THEIR CROSS MOTION ) FOR SUMMARY JUDGMENT

15

)

Defendants.

) Hearing Date: April 23, 2008

16

) Time:

9:00 a.m.

17 Dated: February 15, 2008

Respectfully submitted,

18

JEFFREY S. BUCHOLTZ

Acting Assistant Attorney General

19 JOSEPH P. RUSSONIELLO

20

United States Attorney

21

SHEILA M. LIEBER

Assistant Branch Director

22 /S/

23 Richard Mellman General Attorney

MICHAEL Q. HYDE Trial Attorney

24 Office of the General Counsel U.S. Department of Education

Civil Division, Federal Programs Branch United States Department of Justice

25 400 Maryland Avenue, SW, Rm. 6E314 20 Massachusetts Ave., N.W., Room 7132

Washington, DC 20202

P.O. Box 883

26 Phone: (202) 401-6062 FAX: (202) 205-0524

Washington, D.C. 20044 Tel: (202) 514-2205

27 email: richard.mellman@ed.gov

Facsimile: (202) 616-8470 Email: michael.hyde@usdoj.gov

28

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1

TABLE OF CONTENTS

2 TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

3 INTRODUCTION

...................................................... 1

4 BACKGROUND AND STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

5

A. The No Child Left Behind Act.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

6

B. NCLB Promotes the Hiring of Teachers through

Alternative Routes to Teacher Certification.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

7 C. The Secretary’s Regulation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

8 D. Teacher Certification in California.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

9 STANDARD FOR SUMMARY JUDGMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

10 ARGUMENT

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

11 I.

PLAINTIFFS LACK STANDING TO CHALLENGE ED’S REGULATION.. . . . . . . . . . . . . . . . . . . 10

12 A. All Plaintiffs Lack Standing to Challenge 34 C.F.R.

13

§ 200.56 Because They Fail to Allege Any Injury

that Would Be Remedied by the Requested Relief... . . . . . . . . . . . . . . . . . . . . . . . 10

14 B. Organizational Plaintiffs CFJ and Cal. ACORN Lack

15

Standing to Sue on Behalf of Their Members or on Their

Own Behalf and Should Be Dismissed as Plaintiffs.. . . . . . . . . . . . . . . . . . . . . . . . 12

16 1. CFJ and Cal. ACORN Lack Standing to Sue on

17

Behalf of Their Members.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

18

2. CFJ and Cal. ACORN Lack Standing to Sue On

Their Own Behalf.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

19 a. CFJ and Cal. ACORN Lack Article III Standing

20

to Sue on Their Own Behalf.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

21

b. CFJ and Cal. ACORN Lack Prudential Standing

Because Their Organizational Interests Are Not

22

Within NCLB’s Zone of Interests.. . . . . . . . . . . . . . . . . . . . . . . . . . 14

23 II. 24 25 26

ED’S REGULATION IS NOT ARBITRARY, CAPRICIOUS, OR CONTRARY TO LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
A. Congress Has Not Defined What Is Meant by “Full State Certification as a Teacher (Including Certification Obtained Through Alternative Routes to Certification).” . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

27

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1

B. The Regulation Is a Proper Application of Agency Expertise

and is Consistent with Congressional Intent.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

2 C. Plaintiffs’ Proffered Evidence Is Irrelevant and Cannot Be

3

Considered by This Court because It Is Not Part of the

Administrative Record.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

4 III. EVEN IF PLAINTIFFS WERE TO SUCCEED, THEY REQUEST RELIEF

5

TO WHICH THEY ARE NOT ENTITLED. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

6

A. Plaintiffs Are Not Entitled to the Broad, Sweeping Relief

They Request in Their Complaint... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

7 B. Plaintiffs Are Not Entitled to a Nationwide Injunction.. . . . . . . . . . . . . . . . . . . . . 29

8 CONCLUSION

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

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1

TABLE OF AUTHORITIES

2 CASES

3 Air Courier Conf. v. Am. Postal Workers Union, 498 U.S. 517 (1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

4 Allen v. Wright,

5

468 U.S. 737 (1984).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

6 Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077 (D.C. Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

7 Arizonans for Official English v. Arizona,

8

520 U.S. 43 (1997).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

9 Ashley Creek Phosphate Co. v. Norton, 420 F.3d 934 (9th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

10 Assoc. Gen Contractors,

11

508 U.S. at 663.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 28

12 Bar MK Ranches v. Yeutter, 994 F.2d 735 (10th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

13 Bennett v. Kentucky Dep't of Educ.,

14

470 U.S. 656 (1985).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

15 Boise Cascade Corp. v. EPA, 942 F.2d 1427 (9th Cir. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

16 Brown v. Gardner,

17

513 U.S. 115 (1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

18 Brown & Williamson, 529 U.S. at 133.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

19 Califano v. Yamasaki,

20

442 U.S. 682 (1979).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

21 Celotex Corp. v. Catrett, 477 U.S. 317 (1986).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

22 Chevron U.S.A. v. Natural Resources Defense Council, Inc.,

23

467 U.S. 837 (1984).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

24 Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26

25 Clarke v. Securities Indus. Ass'n,

26

479 U.S. 388 (1987).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

27

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1 Coho Salmon v. Pacific Lumber Co., 61 F. Supp.2d 1001 (N.D. Cal. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

2 Ctr. for Law and Educ. v. Dept. of Educ.,

3

396 F.3d 1152 (D.C. Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

4 Dep't of Defense v. Meinhold, 510 U.S. 939 (1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

5 Deukmejian v. Nuclear Regulatory Comm'n,

6

751 F.2d 1287 (D.C. Cir. 1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

7 Devlin v. Scardelletti, 536 U.S. 1 (2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

8 Earth Island Institute v. Ruthenbeck,

9

490 F.3d 687 (9th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

10 Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

11 FDA v. Brown & Williamson Tobacco Corp.,

12

529 U.S. 120 (2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

13 Fair Housing of Marin v. Combs, 285 F.3d 899 (9th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

14 Florida Power & Light Co. v. Lorion,

15

470 U.S. 729 (1985).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

16 Great Basin Mine Watch v. Hankins, 456 F.3d 955 (9th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

17 Havens Realty Corp. v. Coleman,

18

455 U.S. 363 (1982).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

19 Honig v. Doe, 484 U.S. 305 (1988).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

20 Household Credit Servs., Inc. v. Pfennig,

21

541 U.S. 232 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

22 Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333 (1977).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

23 INS v. Legalization Asst. Proj. of L.A. County Fed. of Labor,

24

510 U.S. 1301 (1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

25 J.L. v. Social Sec. Admin., 971 F.2d 260 (9th Cir. 1992), overruled in part, Lane v. Pena, 518 U.S.

26

187 (1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

27

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1 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

2 Marsh v. Oregon Natural Resources Council,

3

490 U.S. 360 (1989).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

4 Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29 (1983).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

5 Ms. S. v. Vashon Island Sch. Dist.,

6

337 F.3d 1115 (9th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 16, 31

7 Nat'l Cable & Telecommunications Ass'n v. Brand X Internet Servs., 545 U.S. 967 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

8 National Treasury Employees Union v. Hove,

9

840 F.Supp. 165 (D.C. Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

10 National Treasury Employees Union v. United States, 101 F.3d 1423 (D.C. Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

11 Nationsbank v. Variable Annuity Life Ins. Co.,

12

513 U.S. 251 (1995).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

13 Newman v. Apfel, 223 F.3d 937 (9th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

14 Northeastern Fla. Chapter, Assoc. Gen. Contractors v. Jacksonville,

15

508 U.S. 656 (1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

16 Northwest Env't Def. Ctr. v. Bonneville Power Admin., 477 F.3d 668 (9th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

17 Norton v. Southern Utah Wildlife Alliance,

18

42 U.S. 55 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28

19 Resident Councils of Washington v. Thompson, 2005 WL 1027123 (W.D. Wash. 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

20 Sierra Club v. Morton,

21

405 U.S. 727 (1972).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

22 Smith v. Pacific Propertires and Dev. Corp., 358 F.3d 1097 (9th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

23 Spann v. Colonial Village, Inc.,

24

899 F.2d 24 (D.C. Cir.1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

25 Summers v. Earth Island Inst., __ S. Ct. __, 2008 WL 161477 (Jan. 18, 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

26 United Food & Commercial Workers Union Local 751 v. Brown Group, Inc.,

27

517 U.S. 544 (1996).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

28

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1 United States v. Mendoza,

2

464 U.S. 154 (1984).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

3 Univ. Med. Ctr. v. Thompson, 380 F.3d 1197 (9th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

4 Warth v. Seldin,

5

422 U.S. 490 (1975).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

6 Whitmore v. Arkansas, 495 U.S. 149 (1990).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

7 Wilderness Soc'y v. U.S. Fish & Wildlife Serv.,

8

353 F.3d 1051 (9th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

9 Wilson v. Secretary, Dep't of Veteran Affairs, 65 F.3d 402 (5th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

10 Zuni Pub. Sch. Dist. v. Dep't of Educ.,

11

127 S. Ct. 1534 (2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

12 OTHER SOURCES
13 147 Cong. Rec. S4145. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
14 148 Cong. Rec. at S5341. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
15 34 C.F.R. § (b)(2), (3)(i), (3)(ii).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
16 34 C.F.R. § 200.55(c).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
17 34 C.F.R. § 200.56. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
18 5 U.S.C. §706(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 27, 28, 30
19 20 U.S.C. § 1414(d)(1)(B) 16
20 20 U.S.C. § 6301 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
21 20 U.S.C. § 6311. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4, 24, 28
22 20 U.S.C. § 6311(h)(6)(B)(ii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
23 20 U.S.C. § 6319(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 20, 21
24 20 U.S.C. § 6601. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
25 20 U.S.C. §§ 6601 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
26 20 U.S.C. § 6671 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
27

28

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1 20 U.S.C. § 6674(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21 2 20 U.S.C § 6681.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 3 20 U.S.C. § 6681 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 4 20 U.S.C. § 6683(h)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 20 5 20 U.S.C. § 7801(23). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 6 20 U.S.C. § 7801(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 25 7 20 U.S.C. § 7801(23). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 8 42 U.S.C. § 7607(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 9 Cal. Code Regs. tit. 5 § 44454. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 10 Cal. Code Regs. tit. 5 § 44262. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 11 Cal. Code Regs. tit. 5 § 6100(c).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 12 Cal. Code Regs. tit. 5 §§ 6101. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 13 Cal. Code Regs. tit. 5 § 44300(a)(3), (b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 14 Cal. Educ. Code § 44210 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 15 Cal. Educ. Code § 44250. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 18 16 Cal. Educ. Code §44251(b)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 17 Cal. Educ. Code § 44251(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 18 18 Cal. Educ. Code § 44274.2(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 19 Cal. Educ. Code § 44300 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 20 Cal. Educ. Code § 44300(a)93), (b. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 21 Cal. Educ. Code § 44325 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9 22 Cal. Educ. Code § 44380. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 23 Fed. R. Civ. P. 1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 24 Fed. R. Civ. P. 56(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 25 H.R. Rep. No. 107-63 at 317-18. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

26

27

28

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1

INTRODUCTION

2

Though Congress provided no specific definition, plaintiffs ask this Court to impose their

3 interpretation of a provision in the No Child Left Behind Act of 2002 (“NCLB” or the “Act”) defining

4 when states may consider teachers to be “highly qualified,” thereby replacing the interpretation of the

5 Secretary of Education (the “Secretary”). Because plaintiffs lack standing to challenge the Secretary’s

6 interpretation and because the Secretary’s interpretation is a reasonable construction of an ambiguous

7 statute, plaintiffs’ request should be denied.

8

NCLB contains numerous provisions for federal grants intended to improve school and student

9 performance, including requirements that teachers must fulfill to be considered “highly qualified.” In

10 addition to meeting specific standards related to academic study and subject-matter knowledge, NCLB

11 requires that “highly qualified” teachers also have “full State certification as a teacher (including

12 certification obtained through alternative routes to certification)” or have satisfied state licensure

13 requirements. See generally 20 U.S.C. § 7801(23). Congress provided no definition of what it meant

14 by “full State certification as a teacher” nor “obtained through alternative routes to certification.”

15

In the absence of specific congressional instruction, the Secretary promulgated regulations that

16 further specified when a teacher may be considered to have “full State certification” in determining

17 whether the teacher is “highly qualified.” See generally 34 C.F.R. § 200.56. The regulation clarifies

18 the term “full” by stating that a state may consider a teacher fully certified or licensed if the teacher

19 fulfills the certification or licensure requirements applicable to the teacher’s years of experience. See

20 id. § 200.56(a)(2)(i). Further, the Secretary defined the circumstances under which a participant in an

21 alternative route to certification program may be considered fully certified for purposes of being

22 considered highly qualified. See id. § 200.56(a)(2)(ii).

23

Plaintiffs challenge the second paragraph in section 200.56(a)(2). See, e.g., Pls.’ Mem. at 11-

24 12. The court should reject plaintiffs’ claim. First, plaintiffs lack standing to challenge the alternative

25 route provision because California law provides “intern” teachers with a teaching credential giving

26 them authority to be a classroom teacher. Thus, “intern” teachers may be considered to have full state

27 certification to teach under the first part of the Secretary’s regulation, 34 C.F.R. § 200.56(a)(2)(i), and

28 even plaintiffs’ interpretation of the governing statute. 20 U.S.C. § 7801(23)(A). Because plaintiffs

1
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1 do not challenge this provision, they allege no injury that would be remedied by invalidating the

2 provision for alternative route programs. Further, even if the individual plaintiffs have standing, the

3 organizational plaintiffs lack standing and their claims should be dismissed.

4

Second, plaintiffs incorrectly argue that Congress unambiguously requires that states consider

5 only those who have completed “teacher preparation programs” to have full state certification for

6 purposes of NCLB. Congress specified no such requirement and provided no guidance as to what it

7 meant by “full State certification.” Further, NCLB included provisions allowing the Department of

8 Education (“ED”) to provide grants for recruitment of teachers in alternative route programs who had

9 not completed traditional routes to certification in high need schools in an effort to increase the quality

10 of teaching at those schools and address a nationwide shortage of teachers. Accordingly, under the

11 principle announced by the Supreme Court in Chevron U.S.A. v. Natural Resources Defense Council,

12 Inc., 467 U.S. 837, 844 (1984), this court should uphold the reasonable interpretation of the statute and

13 reject plaintiffs’ attempt to replace the Secretary’s interpretation of NCLB with their own.

14

BACKGROUND AND STATEMENT OF FACTS

15

A. The No Child Left Behind Act.

16

NCLB was signed into law on January 8, 2002. See Pub. L. No. 107-110, 115 Stat. 1425

17 (2002) (codified at 20 U.S.C. § 6301 et seq.). The Act reauthorizes Title I of the Elementary and

18 Secondary Education Act of 1965 (“ESEA”), Pub. L. No. 89-10, 79 Stat. 27 (codified as amended at

19 20 U.S.C. § 6301-6578), and in particular its Title I, Part A program (“Title I”), under which ED

20 provides grants to state educational agencies (“SEAs”) and local educational agencies (“LEAs”) to

21 improve the academic achievement of children enrolled in high poverty schools. Key to this goal is

22 the requirement that SEAs receiving Title I funds establish statewide accountability systems based on

23 state academic content and student achievement standards in certain subjects to determine whether

24 students are making adequate yearly progress in meeting state standards. See 20 U.S.C. § 6311.

25

Underscoring the importance of teachers, NCLB requires SEAs receiving Title I funds to

26 ensure that all public school teachers of “core academic subjects” meet certain prescribed standards

27

28

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1 to be considered “highly qualified.”1 Among other things, the Act requires SEAs and LEAs to

2 implement plans ensuring that, by the end of the 2005-06 school year, all teachers of core academic 3 subjects” are “highly qualified.” See 20 U.S.C. § 6319(a).2 NCLB also requires that LEAs ensure that

4 all teachers in Title I programs hired after January 8, 2002 be highly qualified. Id. § 6319(a)(1).

5

Congress defined the term “highly qualified” as it applies to teachers to mean that the teacher

6 has met all of three criteria: full state certification or licensure, possession of at least a bachelor’s

7 degree, and demonstration of subject-matter knowledge in each subject taught. See generally 20

8 U.S.C. § 7801(23). With regard to full state certification, this provision provides:

9

The term “highly qualified”--

(A) when used with respect to any public elementary school or secondary school

10

teacher teaching in a State, means that--

(i) the teacher has obtained full State certification as a teacher (including

11

certification obtained through alternative routes to certification) or passed the State

teacher licensing examination, and holds a license to teach in such State, except that

12

when used with respect to any teacher teaching in a public charter school, the term

means that the teacher meets the requirements set forth in the State's public charter

13

school law; and

(ii) the teacher has not had certification or licensure requirements waived on an

14

emergency, temporary, or provisional basis;

15 Id. § 7801(23)(A).

16

With regard to subject-matter knowledge, NCLB requires that a “highly qualified” elementary

17 school teacher new to the profession must also pass a rigorous state test of subject matter knowledge

18 and teaching skills in reading, writing, mathematics, and other areas of basic elementary education.

19 See id. § 7801(B)(i). Middle and secondary school teachers new to the profession must demonstrate

20 either (1) passing a rigorous state academic subject test in each subject taught, or (2) successfully

21 completing, in each subject taught, an academic major or equivalent undergraduate coursework, a

22 graduate degree, or other advanced certification or credentialing. See id. § 7801(23)(B)(i), (ii).

23

For the time period during which states implement their plans to have all core classes taught

24 by highly qualified teachers, the NCLB also requires that SEAs and LEAs develop plans with specific

25 1 Congress defined “core academic subjects” as English, reading or language arts, mathematics,
26 science, foreign languages, civics and government, economics, arts, history, and geography. 20 U.S.C.
§ 7801(11); see also 34 C.F.R. § 200.55(c). 27
2 By regulation, SEAs and LEAs receiving Title I funds must ensure that by the end of the 2005-06 28
school year these teachers are highly qualified. See 34 C.F.R. § 200.56(b).

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1 steps “to ensure that poor and minority children are not taught at higher rates than other children by

2 inexperienced, unqualified, or out-of-field teachers.” 20 U.S.C. § 6311(b)(8)(C).

3

NCLB also contains reporting requirements to measure progress in implementing the “highly

4 qualified” requirements. In relevant part, schools receiving Title I funds are required to provide

5 individual parents with timely notice that a child “has been assigned, or has been taught for four or

6 more consecutive weeks by, a teacher who is not highly qualified.” 20 U.S.C. § 6311(h)(6)(B)(ii).

7 SEAs and LEAs must prepare and disseminate various reports, including an annual report with

8 information on teachers’ professional qualifications, including “the percentage of such teachers

9 teaching with emergency or provisional credentials” and “the percentage of classes in the State not

10 taught by highly qualified teachers, in the aggregate and disaggregated by high-poverty compared to

11 low-poverty schools.” See 20 U.S.C. § 6311(h)(1)(C)(viii) (state annual report); id. § 6319(b)(1)(A)

12 (SEAs must require LEAs to report annually progress as a whole and by schools); id. § 6311(h)(2)(A),

13 (B) (LEAs to provide same information in annual report). LEAs must “publicly disseminate” this

14 information to schools and parents and to the public in a widely-available means. Id. § 6311(h)(2)(E).

15 SEAs must also provide a widely-available annual report to the Secretary with “information on the

16 quality of teachers and the percentage of classes being taught by highly qualified teachers.” 20 U.S.C.

17 § 6311(h)(4)(G). SEAs must also report their “progress in meeting measurable objectives” to ensure

18 that teachers of core academic subjects are highly qualified. Id. § 6319(b)(1)(B).

19

Finally, NCLB requires the Secretary to submit an annual report to the relevant congressional

20 committees with national and state-level data collected from the states. 20 U.S.C. § 6311(h)(5).

21

B. NCLB Promotes the Hiring of Teachers through Alternative Routes to

Teacher Certification.

22 Programs providing alternative routes to teacher certification are vehicles through which states

23 may encourage mid-career professionals and qualified individuals who are not in a traditional teacher

24 preparation program, but who have other relevant educational and work experience, to become

25 teachers. See Administrative R. (“A.R.”) at AR000404-07, 001801-12.3

26 Federal statutes do not dictate how states are to certify or license teachers. However, in NCLB,

27

28

3 The four-volume Administrative Record was filed on December 18, 2007. See docket no. 38.

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1 Congress authorized three mechanisms designed to assist the states in(1) creating alternative routes

2 to certification to help ameliorate the Nation’s shortage of highly qualified teachers, especially in

3 schools with large numbers of minority and low-income students, and (2) recruiting teachers with

4 relevant, but alternative academic and work experience.

5

NCLB reauthorized the Troops-to-Teachers program, see generally 20 U.S.C. § 6671 et seq.,

6 “to assist eligible members of the Armed Forces . . . to obtain certification or licensing . . . to become

7 highly qualified teachers.” Id. § 6672(b). This program facilitates the hiring of participants by LEAs

8 with high “concentrations of children from low-income families” or that are “experiencing a shortage

9 of highly qualified teachers, in particular a shortage of science, mathematics, special education, and

10 vocational or technical teachers.” Id. § 6672(b)(2)(A). This program uses “alternative approaches .

11 . . , such as innovative methods to gaining field-based teaching experiences” and “assessment of 12 background and experience as related to skills, knowledge, and abilities.”4 Id. § 6676(c)(3).

13

In addition, NCLB’s Transition to Teaching program, see generally 20 U.S.C. § 6681 et seq.,

14 is designed to “recruit and retain highly qualified mid-career professionals” and “recent [college]

15 graduates” to be teachers in high-need schools, including through “alternative routes to certification.”

16 Id. § 6681(1). The program also encourages “development and expansion of alternative routes to

17 certification under state-approved programs that enable individuals to be eligible for teacher

18 certification within a reduced period of time.” Id. § 6681(2). To accomplish this goal, Congress

19 determined that the program would rely “on the experience, expertise, and academic qualifications of

20 an individual or other factors in lieu of traditional course work in the field of education.” Id.

21

Entities that receive grants under the Transition to Teaching program are required to ensure that

22 program participants “are placed in high-need schools operated by high-need local educational

23 agencies,” with priority given to schools in areas “with the highest percentages of students from

24 families with incomes below the poverty line.” 20 U.S.C. § 6683(h)(1)

25

Finally, NCLB created the Improving Teacher Quality State Grants program. See generally

26 4 This program does not require that participants utilize an alternative route program. However,
27 a large percentage of these former members of the military become teachers through alternative route
programs. See, e.g., A.R. at AR0002244 (ED study finding that half of participants utilized alternate 28
route programs and 46% through traditional, college-based programs).

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1 20 U.S.C. §§ 6601 et seq. This program authorizes grants to SEAs and LEAs to increase teacher

2 quality and the number of highly qualified teachers, and, thus, complements efforts of other NCLB

3 programs in helping SEAs and LEAs to improve student academic achievement. 20 U.S.C. § 6601.

4 These funds may be used to “establish, expand, or improve alternative routes for State certification of

5 teachers” by targeting individuals “with a baccalaureate or master’s degree, including mid-career

6 professionals from other occupations, paraprofessionals, former military personnel, and recent college

7 or university graduates with records of academic distinction who demonstrate the potential to become

8 highly effective teachers . . . .” Id. § 6613(c)(3) (grants to states); id. § 6623(a)(2)(C) (grants to LEAs).

9

C. The Secretary’s Regulation.

10

NCLB authorizes the Secretary to issue regulations “as are necessary to reasonably ensure that

11 there is compliance with [Title I].” Id. § 6571(a). On August 6, 2002, the Secretary issued a notice

12 of proposed rulemaking for the newly authorized Title I ESEA programs. See A.R. at AR0000001-43.

13 With respect to NCLB’s definition of a “highly qualified” teacher, the Secretary sought to “clarify

14 unclear areas of the statute.” Among other things, the Secretary proposed that a teacher be considered

15 to have full state certification if the teacher

16

(i) has fulfilled the State’s certification and licensing requirements applicable to the

years of experience the teacher possesses, or

17

(ii) is participating in an alternative route to certification program under which the

teacher is

18

(1) Permitted by the State to assume functions as a teacher; and

(2) Makes satisfactory progress toward full certification as prescribed by the

19

State and the program.

20 Id. at AR0000011; see also id. at AR0000034 (setting forth proposed section 200.56).

21

Following a comment period,5 the Secretary promulgated regulations implementing NCLB,

22 including 34 C.F.R. § 200.56. See generally A.R. at AR0000045-106. The Secretary recognized that

23 “State certification and licensure is a matter of State law and policy, and hence the definition of these

24 terms is left to State decisionmaking.” A.R. at AR0000099.

25

Like the proposed regulation, the final regulation begins by stating:

26

Except as provided in paragraph (a)(3) of this section, a teacher covered under § 200.55

27 5 Public comment related to section 200.56 is included in the Administrative Record in volume 1,
28 pages AR0000107-379.

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1

must--

(i) Have obtained full State certification as a teacher, which may include

2

certification obtained through alternative routes to certification; or

(ii)(A) Have passed the State teacher licensing examination; and (B) Hold a

3

license to teach in the State.

4 34 C.F.R. § 200.56(a)(1). And, as in the proposed regulation, a teacher meets this requirement if the

5 teacher “[h]as fulfilled the State's certification and licensure requirements applicable to the years of

6 experience the teacher possesses.” Id. § 200.56(a)(2)(i). However, in response to public comment,

7 the final regulation significantly revised the second way in which a teacher could be considered fully

8 certified by establishing specific criteria that an alternative route program must satisfy:

9

(A) The teacher--

(1) Receives high-quality professional development that is sustained,

10

intensive, and classroom-focused in order to have a positive and lasting impact

on classroom instruction, before and while teaching;

11

(2) Participates in a program of intensive supervision that consists of

structured guidance and regular ongoing support for teachers or a teacher

12

mentoring program;

(3) Assumes functions as a teacher only for a specified period of time

13

not to exceed three years; and

(4) Demonstrates satisfactory progress toward full certification as

14

prescribed by the State; and

(B) The State ensures, through its certification and licensure process, that the

15

provisions in paragraph (a)(2)(ii) of this section are met.

16 Id. § 200.56(a)(2)(ii).

17

In addition to these requirements, a teacher must meet the education and subject-matter

18 competency requirements of the regulation’s subsection (b) or (c) to be considered “highly qualified.”6

19 Subsection (b), which applies to new elementary and middle or secondary school teachers, requires

20 that new teachers also possess a bachelor’s degree and demonstrate subject-matter knowledge in the

21 manner prescribed by statute.7 Compare 34 C.F.R. § 200.56(b)(2), (3) with 20 U.S.C. § 7801(23)(B).

22

ED considered and rejected concerns that teachers who had not yet completed an alternative

23 route program should not be considered to have full state certification, and, thus also not “highly

24 qualified.” In doing so, the Secretary cited Congress’s specific authorization of federal support for the

25 hiring teachers through alternative route programs such as the three NCLB programs described above,

26

27

6 Section 200.56(a)(3) concerns teachers in public charter schools, which is not germane here.

28

7 Subsection (c) contains similar requirements for veteran teachers. See 34 C.F.R. § 200.56(c).

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1 and the belief that LEAs should be permitted to continue to use alternative routes to certification as

2 a means of increasing the number of effective and capable teachers. See A.R. at AR0000099. Further,

3 the Secretary reasoned that, because the final regulation incorporates statutory requirements that

4 teachers have a bachelor’s degree and demonstrate subject matter knowledge, see 34 C.F.R. §

5 200.56(b), (c), the additional standards for training, supervision and progress ensured by the state

6 through its certification and licensure processes, see 34 C.F.R. § 200.56(a)(1)(ii)(B) would respond

7 to the need for teachers in alternative route programs to be “prepared to teach their students from the

8 moment they step into their classrooms, and receive the follow-up support they need as beginning

9 teachers.” A.R. at AR0000099.

10

D. Teacher Certification in California.

11

The California Legislature has assigned responsibility for teacher accreditation to the

12 Commission on Teacher Accreditation (“Cal. CTA”). See CAL. EDUC. CODE § 44210 et seq. Cal.

13 CTA issues various types of credentials, specifically internship, preliminary, and life or permanent

14 clear credentials, see, e.g., id. 44250 et seq.; see also id. § 44250 (establishing teacher credentials, 15 including“internship teaching” credential).8 Cal. ATA may also issue certain emergency “permits” to 16 teach. See id. § 44300 et seq.9

17

Teachers may obtain a “preliminary” teaching credential upon completion of a baccalaureate

18 degree and a teacher preparation program, in addition to meeting other requirements. See CAL. EDUC.

19 CODE § 44274.2(a). After obtaining an additional two or more years of teaching experience and two

20 satisfactory performance reviews, as well as meeting other statutorily-defined requirements, a teacher

21 may obtain a “professional clear” or life credential. Id. § 44274.2(c); see also id. § 44274.2(d).

22

California law provides for internship credentials in its district internship program, see CAL.

23 8 California also has an “eminence credential,” available to those who have “achieved eminence
24 in a field of endeavor” authorizing them to teach subjects at levels designated in the credential. See 25 CAL. CODE REGS. tit. 5 § 44262.

26

9 California also has different “kinds” of teaching credentials. See generally Id. § 44256. Included

in these are a “single subject instruction” credential permitting the holder to teach specified subject 27 matter courses, typically used in junior high and high schools, id. § 44256(a), and a “multiple subject

instruction” credential, permitting the holder to teach multiple subject matters, as is common in 28
elementary school. Id. § 44256(b).

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1 EDUC. CODE § 44325 et seq., and its university internship program. See id. § 44450 et seq. Both 2 programs predate enactment of NCLB.10 The district internship credential authorizes a teacher to teach

3 in the subject areas for which they have met subject-matter competency. See id. § 44326(a) (district

4 interns). Similarly, the university intern credential authorizes a teacher to teach at the same levels as

5 that authorized by a regular credential. See id. § 44454. Upon completion of the term prescribed for

6 the intern credential, the teacher would apply to receive either a preliminary or a professional cleawr

7 credential. See id. § 44328.

8

For purposes of NCLB’s highly qualified teacher requirements, California, by regulation, has

9 defined the term “credential” to mean “A Preliminary, Professional Clear or Life Credential, or any

10 teaching credential issued under prior statutes, that authorizes a person to teach in California K-12

11 schools.” CAL. CODE REGS. tit. 5 § 6100(c). Teachers meet NCLB requirements if they hold a

12 bachelor’s degree, are enrolled in an approved intern program or hold a credential, and meet other state

13 statutory requirements. See CAL. CODE REGS. tit. 5 §§ 6101 (elementary school teachers), 6110

14 (middle and high school teachers).

15

California law also prescribes the length of time each credential is valid. Internship credentials

16 are valid for two years. CAL. EDUC. CODE § 44251(b)(1). Preliminary credentials are valid for five

17 years “pending completion of a beginning teacher induction program.” Id. § 44251(b)(2). A clear or

18 professional clear teaching credential is valid for life, provided it is renewed every five years and the

19 holder meets certain statutorily-defined professional fitness requirements. Id. § 44251(b)(3).

20

Although any credential and emergency permit authorizes an individual to teach, California

21 restricts the ability to hire teachers with only a permit. See CAL. EDUC. CODE § 44300(a)93), (b). No

22 such limitation is placed on the hiring of teachers with an internship or preliminary credential.

23 Compare id. §§ 44325 et seq. (district interns); id. §§ 44450 et seq. (university interns), Moreover,

24 California’s statutes and regulations establish no preference or priority in favor of either internship or

25 preliminary teaching credentials. Cf. CAL. CODE REGS. tit. 5 § 44454 (“An internship credential

26 authorizes the same service at the same levels a the regular credential authorizes.”).

27 10 The statutes for district internships were first passed in 1983 and for university internships in,
28 See Notes to Cal. Educ. Code Ann. §§ 44325 (district interns); 44450 (university interns).

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1

Finally, California authorizes the use of alternative certification programs, which provides an

2 alternative avenue for those with work experience and who have already obtained a bachelor’s degree

3 to obtain a permanent teaching credential. CAL. EDUC. CODE § 44380.

4

STANDARD FOR SUMMARY JUDGMENT

5

Summary judgment is appropriate where “there is no genuine issue as to any material fact and

6 . . . the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). Summary

7 judgment is properly regarded “not as a disfavored procedural shortcut, but rather as an integral part

8 of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive

9 determination of every action.’” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R.

10 Civ. P. 1). Defendants filed the Administrative Record, and plaintiffs do not dispute it. Since this case

11 may be resolved as a matter of law, summary judgment is appropriate. See Fed. R. Civ. P. 56(c).

12

ARGUMENT

13 I.

PLAINTIFFS LACK STANDING TO CHALLENGE ED’S REGULATION.

14

A. All Plaintiffs Lack Standing to Challenge 34 C.F.R. § 200.56 Because They Fail

to Allege Any Injury that Would Be Remedied by the Requested Relief.

15 To have standing under Article III of the Constitution, plaintiffs must show (1) an injury in fact,

16 meaning the invasion of a legally protected interest that is “concrete and particularized” and “actual

17 or imminent, not conjectural or hypothetical,” (2) a causal relationship between the injury and the

18 challenged activity, and (3) that a favorable court ruling will redress the injury. Northeastern Fla.

19 Chapter, Assoc. Gen. Contractors v. Jacksonville, 508 U.S. 656, 663 (1993). Because standing is

20 jurisdictional, plaintiffs bear the burden to establish each element with the manner and degree of proof

21 required at each stage of litigation. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

22 All of the plaintiffs point to California’s certification of “intern” teachers as the basis for their

23 challenge of 34 C.F.R. § 200.56(c)(2)(ii), arguing that the regulation improperly permits California

24 to consider intern teachers who participate in alternative route programs to have “full” certification and

25 be considered “highly qualified.” See, e.g., Pls.’ Mem. at 6 and exhibits cited therein. Other than

26 these “intern” teachers, plaintiffs do not specify any other teachers assigned to them or in their schools

27 who they claim are improperly considered “highly qualified” under the Secretary’s regulation.

28

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1

Whatever injury they have suffered either from California’s certification of these “intern”

2 teachers or its consideration of them as “highly qualified,” plaintiffs fail to show that the injury results

3 from 34 C.F.R. § 200.56(c)(2)(ii) or would be remedied by its invalidation. As stated above,

4 California statutes provide a teaching credential to intern teachers to teach their subjects and grade

5 levels. See CAL. EDUC. CODE § 44250 (providing for intern teaching credentials); id. § 44326(a)

6 (holders of district intern credentials “authorized to teach in the subject area in which they have met

7 the subject matter requirement”); id. § 44454 (university intern credential “authorizes the same service

8 at the same levels as the regular credential authorizes”). This authority is separate from that

9 establishing emergency teaching permits. See CAL. EDUC. CODE § 44300 et seq.

10

In light of this, plaintiffs have not shown that, under California law, intern teachers are not fully

11 certified to teach. Nor have they provided any basis to conclude that intern teachers lack “full State

12 certification” for purposes of NCLB without considering 34 C.F.R. § 200.56(a)(2)(ii), permitting

13 certain participants in alternative route programs to be considered fully certified. Plaintiffs also do not

14 show that California’s intern credential does not satisfy a separate regulatory provision they do not

15 challenge, which states teachers are considered fully certified if they fulfill State requirements

16 “applicable to the years of experience the teacher possesses.” 34 C.F.R. § 200.56(a)(2)(i).

17

Accordingly, plaintiffs have not demonstrated that the injury in fact they allege is the result of

18 the provision they challenge, 34 C.F.R. § 200.56(a)(2)(ii), rather than California’s considered decision

19 to provide certification to intern teachers. Absent such a showing, plaintiffs fail to satisfy the second

20 prong of the standing analysis – a causal link between the cited injury and the challenged activity. See

21 Assoc. Gen Contractors, 508 U.S. at 663. Moreover, because invalidation of the Secretary’s regulation

22 would not prevent California from considering its intern teachers to be fully certified under these

23 statutory provisions, the remedy plaintiffs request, and, indeed, any remedy against the defendants,

24 would not alter California’s law which provides a teaching credential to intern teachers. Plaintiffs

25 therefore fail to satisfy the third prong of the standing analysis – a showing that a favorable court ruling

26 will redress the injury cited. Id. Thus, plaintiffs lack standing to challenge the legality of section

27 200.56, and their claims must be dismissed in their entirety.

28

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1

B. Organizational Plaintiffs CFJ and Cal. ACORN Lack Standing to Sue on Behalf

of Their Members or on Their Own Behalf and Should Be Dismissed as Plaintiffs.

2 To the extent plaintiffs’ claims are brought by the organizational plaintiffs CFJ and Cal.

3 ACORN, those plaintiffs’ claims must be dismissed for lack of subject matter jurisdiction because

4 each lacks standing. An organization may have standing to sue either on behalf of its members

5 (“representational” standing) or on its own behalf (“organizational” standing). See Smith v. Pacific

6 Propertires and Dev. Corp., 358 F.3d 1097, 1101 (9th Cir. 2004). An organization’s “representational

7 standing is contingent upon the standing of its members to bring suit,” while its “organizational

8 standing is separate from the standing of its members, turning instead on whether the organization

9 itself has suffered an injury in fact.” Id. (citations omitted).

10 1. CFJ and Cal. ACORN Lack Standing to Sue on Behalf of Their Members.

11 To possess standing to sue as a representative of its members, an organization must satisfy

12 three elements. First, it must identify actual members who have suffered an injury “of the sort that

13 would make out a justiciable case had the members themselves brought suit.” Warth v. Seldin, 422

14 U.S. 490, 511 (1975); see also Arizonans for Official English v. Arizona, 520 U.S. 43, 65-66 (1997)

15 (“association has standing to sue” on behalf of members “only if its members would have standing in

16 their own right” on basis of “concrete injury”). Second, it must show that “neither the claim asserted

17 nor the relief requested requires the participation of individual members in the lawsuit.” United Food

18 & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 553 (1996) (quoting

19 Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977)). Finally, it must show that

20 “the interests it seeks to protect are germane to [its organizational] purpose.” Id. (quoting Hunt, 432

21 U.S. at 343); see also Smith, 358 F.3d at 1101-02. Neither CFJ nor Cal. ACORN meet this standard.

22 Though they identify members who they allege would have standing, those members lack

23 standing for the reasons stated above, see, supra, Part I.A., and, thus, so does CFJ and Cal. ACORN.

24 2. CFJ and Cal. ACORN Lack Standing to Sue On Their Own Behalf.

25 Even if CFJ and Cal. ACORN could have standing separate from their members, they still

26 “must, like any other plaintiff, satisfy the constitutional and prudential considerations of standing.”

27 J.L. v. Social Sec. Admin., 971 F.2d 260, 268 n.8 (9th Cir. 1992), overruled in part, Lane v. Pena, 518

28

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1 U.S. 187 (1996). CFJ and Cal. ACORN fail both tests. First, neither alleges any concrete injury fairly

2 traceable to 34 C.F.R. § 200.56 and likely to be redressed by a judgment in its favor. Second, Cal.

3 ACORN’s and CFJ’s interests are not within the zone of interests protected or regulated by NCLB.,

4 and their claims should be dismissed as a prudential matter.

5

a. CFJ and Cal. ACORN Lack Article III Standing to Sue on Their

Own Behalf.

6 An organization may sue on its own behalf only if the challenged conduct directly conflicts

7 with the organization’s mission and has directly harmed its ability to provide its services. The

8 organization’s injury cannot be conjectural, hypothetical, speculative or abstract, but must be

9 “‘certainly impending.’” National Treasury Employees Union v. United States, 101 F.3d 1423, 1427

10 (D.C. Cir. 1996) (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)). Furthermore, the

11 organization’s injury must be “‘fairly traceable to the alleged illegal action and likely to be redressed

12 by a favorable court decision.’” Coho Salmon v. Pacific Lumber Co., 61 F. Supp.2d 1001, 1009 n.3

13 (N.D. Cal. 1999) (quoting Spann v. Colonial Village, Inc., 899 F.2d 24, 27 (D.C. Cir.1990)). A policy

14 interest, regardless of how longstanding the interest in it or the organization’s qualifications to address

15 the problem, is insufficient for standing. Sierra Club v. Morton, 405 U.S. 727, 739 (1972).

16 Organizations may have standing in their own right where government action prevents them

17 from providing services. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 378-79 (1982); see also

18 Smith, 358 F.3d at 1105-06 (organization had standing to sue where it alleged that challenged practices

19 negatively impacted its mission and caused it to redirect resources to challenged practice); Fair

20 Housing of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002) (fair housing organization had direct

21 standing to sue real estate owner where it alleged that defendant’s discriminatory practices frustrated

22 its mission and impaired its ability to provide outreach and education services).

23 Unlike organizations that have been found to have standing, see, e.g., Havens Realty, 455 U.S.

24 at 378-79, Cal. ACORN and CFJ do not allege what specifically, if anything, defendants have done

25 to make them ineffective, especially given their ability to identify, track, and obtain data for the

26 teachers they target in this suit. See, e.g., Pls.’ Ex. 2. Furthermore, as laudable as their efforts may

27 be, the organizations cite policy disputes and disagreements with defendants’ regulation, not actual

28

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1 harm to the organization’s ability to advocate for improvements in public education through lobbying,

2 community organization, or other methods. Such political disputes are insufficient to provide an

3 organization standing. See Sierra Club, 405 U.S. at 739; Ctr. for Law and Educ. v. Dept. of Educ., 396

4 F.3d 1152, 1161-62 (D.C. Cir. 2005) (where organization alleges frustration of policy-oriented goals,

5 injury cited falls under rubric of type of abstract concern insufficient for standing); Resident Councils

6 of Washington v. Thompson, 2005 WL 1027123 at 7 (W.D. Wash. 2005).

7

b. CFJ and Cal. ACORN Lack Prudential Standing Because Their

Organizational Interests Are Not Within NCLB’s Zone of Interests.

8 Finally, CFJ and Cal. ACORN lack standing because their ability to function as advocacy

9 organizations is not within NCLB’s “zone of interests.” See Elk Grove Unified Sch. Dist. v. Newdow,

10 542 U.S. 1, 12 (2004) (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)); see also Ashley Creek

11 Phosphate Co. v. Norton, 420 F.3d 934, 939 (9th Cir. 2005). A plaintiff cannot meet this test by

12 alleging that a regulatory scheme protects or regulates someone else’s interests in a way that might

13 indirectly affect its own. See Air Courier Conf. v. Am. Postal Workers Union, 498 U.S. 517, 522-31

14 (1991); Devlin v. Scardelletti, 536 U.S. 1, 7 (2002) (prudential standing requirements include“‘general

15 prohibition on a litigant’s raising another person’s legal rights. ...’”) (quoting Allen, 468 U.S. at 751).

16 Though the prudential standing requirement is not “especially demanding,” Clarke v. Securities Indus.

17 Ass’n, 479 U.S. 388, 399 (1987), CFJ and Cal. ACORN fail to allege facts sufficient to satisfy it.

18 In relevant part, NCLB establishes minimum standards for highly qualified teachers. 20 U.S.C.

19 § 7801(23). The Act makes no “mention of advocacy organizations’ interests.” Center for Law and

20 Educ., 396 F.3d at 1157 (other part of NCLB does not mention advocacy interests and therefore

21 organization lacked standing). NCLB may create, at most, interests for parents, students, educators

22 and education officials, and though the organizations may represent them, “the interests to be protected

23 are those of the parents and students, not of the organizations.” Id. at 1157. The concerns of CFJ and

24 Cal. ACORN are therefore not within NCLB’s zone of interests. See INS v. Legalization Asst. Proj.

25 of L.A. County Fed. of Labor, 510 U.S. 1301, 1305 (1993) (O’CONNOR, J.) (stay of appellate ruling

26 because Supreme Court likely “would grant certiorari and conclude that [organizations that provide

27 legal help to immigrants] are outside of zone of interests” immigration law sought to protect; “fact that

28

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1 the INS regulation may affect the way an organization allocates its resources . . . does not give standing

2 to an entity which is not within the zone of interests the statute meant to protect”).

3 II.

ED’S REGULATION IS NOT ARBITRARY, CAPRICIOUS, OR CONTRARY TO LAW.

4

Under the Administrative Procedure Act (“APA”), a court may set aside agency action that is

5 “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. §

6 706(2)(A). Whether agency action violates this standard is a legal issue resolved on the basis of the

7 agency’s record, whether presented in the context of a motion under Rule 12(b) or a motion for

8 summary judgment. Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001).

9

Plaintiffs’ claim presents a purely legal issue governed by the well-established principles of

10 Chevron, 467 U.S. at 844. “When a court reviews an agency’s construction of a statute which it

11 administers, it is confronted with two questions.” Id. at 842. The first question is whether Congress

12 has spoken on the precise issue, for if it has, the court and agency “must give effect to the

13 unambiguously expressed intent of Congress.” Id. at 843. If Congress has not spoken unambiguously,

14 then the second question arises: “if the statute is silent or ambiguous with respect to the specific issue,

15 the question for the court is whether the agency’s answer is based on a permissible construction of the 16 statute.” Id.; see also Wilderness Soc’y v. U.S. Fish & Wildlife Serv., 353 F.3d 1051, 1059 (9th Cir.

17 2003) (court “must defer to the agency so long as the agency’s answer is based on a permissible

18 construction of the statute. In such a case an agency’s interpretation of a statute will be permissible,

19 unless arbitrary, capricious, or manifestly contrary to the statute” (citations and internal quotation

20 marks omitted)); Newman v. Apfel, 223 F.3d 937, 946 n.4 (9th Cir. 2000) (issue “is whether the

21 purpose and legislative history of the statutory provision plainly establishes that the [agency’s]

22 interpretation is untenable”). “[A] court may not substitute its own construction of a statutory

23 provision for a reasonable interpretation made by the administrator of the agency.” Chevron, 467 U.S.

24 at 844. The deference accorded an agency’s interpretation is a necessary part of the Executive power:

25 “The power of an administrative agency to administer a congressionally created program necessarily

26 requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly,

27 by Congress.” Id. at 843 (quotation and alteration omitted).

28

Chevron deference applies in full to judicial review of the Secretary’s regulation at issue here.

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1 See, e.g., Honig v. Doe, 484 U.S. 305, 325 n.8 (1988) (deferring to ED’s interpretation of statute it is

2 charged with monitoring and enforcing); Bennett v. Kentucky Dep’t of Educ., 470 U.S. 656, 670

3 (1985) (Chevron applies to ED’s interpretation of Title I of ESEA); Ms. S. v. Vashon Island Sch. Dist., 4 337 F.3d 1115, 1134 & n.23 (9th Cir. 2003) (ED’s interpretation of IDEA entitled to Chevron

5 deference), superceded on other grounds, 20 U.S.C. § 1414(d)(1)(B).

6

A. Congress Has Not Defined What Is Meant by “Full State Certification as a

Teacher (Including Certification Obtained Through Alternative Routes to

7

Certification).”

8

Plaintiffs’ argument is based on assumptions and a fundamental misconstruction of the

9 governing statute, leading them to argue that Congress has directly spoken on the issue of what

10 constitutes “full State certification as a teacher” and whether, under NCLB, teachers in alternative

11 route programs may be considered highly qualified. In fact, Congress has not established standards

12 for determining which teachers are considered to have full State certification in order to be highly

13 qualified. Nor has Congress unambiguously determined that a teacher participating in an alternative

14 route program cannot be highly qualified because the teacher has not already completed the program.

15

The ambiguity in the statutory language is underscored by other programs in NCLB, such as

16 the Transition to Teaching and Troops-to-Teachers programs, see, supra, Background Part B, which

17 authorize funds for alternative route programs and the recruitment and hiring of teachers without

18 traditional training. It would be incongruous to conclude that Congress intended that teachers recruited

19 and hired to work in high need schools through these programs, which Congress created to help

20 address the significant need those schools have for quality teachers, would find themselves unable to

21 teach because they were not considered highly qualified.

22

Specifically, Congress set forth no specific, unambiguous requirements that must be met for

23 a teacher to be considered fully certified for purposes of NCLB’s highly qualified requirements. See

24 20 U.S.C. § 7801(23)(A)(i). Plaintiffs merely assume that the phrase “full State certification as a

25 teacher (including certification obtained through alternative routes to certification)” must require

26 completion of “teacher preparation programs” prior to certification. See, e.g., Pls.’ Mem. at 1 (arguing

27 that Congress defined “highly qualified” to include teachers “who have completed their teacher

28 preparation programs”). On the contrary, at no point did Congress state that teachers must complete

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1 any program to be considered as having obtained “full State certification” for NCLB purposes. Nor

2 did Congress state that certification may only be obtained “after” completion of an alternative route

3 to certification. Rather, Congress left undefined what it meant by both “full State certification” and

4 “certification obtained through alternative routes to certification.”

5

On the other hand, Congress did specify that a highly qualified teacher must satisfy two

6 additional requirements. The first requirement mandates that whatever a state’s certification or

7 licensure standards may be, the teacher must not have had them “waived on an emergency, temporary,

8 or provisional basis.” 20 U.S.C. § 7801(23)(A)(ii). This plain language does not prohibit certification

9 for a prescribed period of time. Rather, it prohibits a teacher from being considered highly qualified

10 while holding a waiver of the standards for certification or licensure established by the state.

11

The other requirement concerns graduation from college and content knowledge of the

12 subject(s) taught. See 20 U.S.C. § 7801(B). Here, NCLB requires that, to be considered “highly

13 qualified,” new teachers have at least a bachelor’s degree and demonstrate subject matter knowledge

14 in the statutorily-defined manner. See 20 U.S.C. § 7801(23)(B)(i) (new elementary school teachers);

15 id. § 7801(23)(B)(ii) (new middle or secondary school teachers). See, supra, Background Part A.

16

As to any other requirements that a teacher may need to be considered as having “obtained full

17 State certification as a teacher,” the statute is entirely silent, except to provide the alternative of passing

18 a licensing examination and holding a license to teach. See 20 U.S.C. § 7801(23)(A)(i). Thus,

19 Congress’s interest in establishing statutory criteria for defining who is highly qualified lay not in the

20 details governing when a teacher is fully certified to teach, but in the standards of section 7801(23)(B)

21 for determining when a teacher has demonstrated adequate knowledge of the subject(s) taught.

22

Further, the ambiguity in the phrase “full State certification” is underscored by the parenthetical

23 relating to alternative route programs. Assuming that plaintiffs are correct and that to be highly

24 qualified, Congress intended that participants in alternative route programs must have already

25 completed a teacher-training program, that objective would be fully accomplished by the three words

26 “full State certification.” Such an interpretation would render the parenthetical phrase “including

27 certification through alternative routes to certification” wholly superfluous, because participants in

28 alternative route would already be required to complete the teacher training program to have “full State

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1 certification.” Cf. Boise Cascade Corp. v. EPA, 942 F.2d 1427 (9th Cir. 1991) (statutes should be

2 interpreted as a whole, “giving effect to each word and making every effort not to interpret a provision

3 in a manner that renders other provisions of the same statute inconsistent, meaningless or superfluous).

4

Moreover, California’s certification process illustrates why Congress’s choice of words is

5 ambiguous with respect to the meaning of “full State certification” and does not clearly address when

6 a teacher in an alternative route program is fully certified for NCLB purposes. As reviewed above, see,

7 supra, Background Part D, California has several types of teacher credentials, including intern,

8 preliminary, and clear or professional clear credentials. See CAL. EDUC. CODE § 44250; id. § 44325

9 et seq. (district interns); id. § 44450 et seq. (university interns); id. § 44274 (preliminary, clear, and

10 professional clear). Just as it credentials and authorizes teachers with a preliminary credential to be

11 classroom teachers, a credential plaintiffs do not challenge, California credentials and authorizes intern

12 teachers to be classroom teachers. See id. § 44326(a) (district interns); id. 44454 (university interns);

13 see also Pls.’ Heredia Decl. at ¶ 4, Ex. 1 (intern credential authorizes teaching of specified subject).

14 Moreover, California does so without the need of any school district to demonstrate need, as it must

15 do to hire a teacher with an emergency permit. See 5 CAL. CODE REGS. tit. 5 § 44300(a)(3), (b).

16

Plaintiffs cite no specific standards contained in section 7801(23) that would support the

17 conclusion that California’s decision to provide intern teachers with a credential authorizing them to

18 teach is somehow less than “full” certification, nor do they state any rationale based on the plain

19 language of section 7801(23)(A) for determining what Congress would consider to be missing in

20 California’s authorization of intern teachers to be classroom teachers. For example, as plaintiffs

21 themselves state, some of California’s teaching credentials are valid for a limited period of time. See,

22 e.g., CAL. EDUC. CODE § 44251(b); see also Pls.’ Mem. at 14 n.9 (citing CAL. EDUC. CODE § 44251

23 as setting “length of time for which credentials are valid”). Under plaintiffs’ argument, only

24 California’s internship credential, valid for two years, violates section 7801(23)(A). Cf. Pls.’ Mem.

25 at 14; see also id. (criticizing notion that a credential limited to three years “is equivalent to ‘full State

26 certification’ [as] refuted merely by stating it”). Yet, at no point do plaintiffs attack California’s

27 preliminary credential, which is valid for no more than five years. See CAL. EDUC. CODE §

28 44251(b)(2). Plaintiffs cannot argue that California violates section 7801(A) merely by placing a time

18
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1 limit on a credential, when under their own argument, the time limit for the preliminary credential is

2 permissible. And, nothing in section 7801(23)(A) sets forth any specific, measurable standard that

3 could be applied unambiguously to find the preliminary credential to be full certification while the

4 intern credential, which is obtained through alternative route programs and predates NCLB, is not.

5

The preliminary credential also demonstrates the fallacy of interpreting section 7801 to require

6 that a teacher must complete all preparation required of teachers in a state’s certification process. As

7 with many states, California’s preliminary teaching credential is part of a set of graduated requirements

8 based on a teachers’ years of experience. If “full” literally meant “complete,” even California teachers

9 with the initial five-year preliminary credential might also not be considered “highly qualified,” as they

10 must still fulfill certain prescribed requirements to obtain the lifetime credential.

11

Further, interpreting section 7801(23)(A) as plaintiffs urge would disregard other, key

12 components of NCLB. In determining whether a statute is ambiguous, the Supreme Court instructs

13 that a “reviewing court should not confine itself to examining a particular statutory provision in

14 isolation.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132 (2000). Statutory

15 ambiguity “‘is a creature not [just] of definitional possiblities but [also] of statutory context.” Zuni

16 Pub. Sch. Dist. v. Dep’t of Educ., 127 S. Ct. 1534, 1546 (2007) (quoting Brown v. Gardner, 513 U.S.

17 115, 118 (1994)). Further, “the meaning of one statute may be affected by other Acts.” Brown &

18 Williamson, 529 U.S. at 133. Thus, the Chevron step-one inquiry includes an “examination of [a

19 statute’s] related provisions.” See Household Credit Servs., Inc. v. Pfennig, 541 U.S. 232, 241 (2004).

20

Review of the alternative route programs reauthorized and enacted in NCLB also demonstrates

21 that Congress could not have meant that “full State certification” requires participants in alternative

22 route programs be certified only after completion of the program. It is undisputed that section

23 7801(23) contemplates certification obtained through alternative route programs and that NCLB

24 reauthorized and enacted three such programs – Troops to Teachers, Transition to Teaching, and the

25 Improving Teacher Quality State Grants program. See, supra, Background Part B. These other

26 provisions demonstrate that Congress understood that teachers participating in those programs would

27 serve as classroom teachers while they complete the program and could not have intended that school

28 districts wishing to hire them would be prevented from doing so in order to avoid hiring teachers who

19
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1 were not highly qualified, in violation of 20 U.S.C. § 6319(a).

2

Congress enacted these alternative route programs to help LEAs in high poverty and high-need

3 areas meet their teaching needs by enabling them to recruit capable individuals who had not completed

4 teacher preparation programs and quickly enable those individuals to become teachers in high need

5 schools. For example, Congress does not consider participants in the Transition to Teaching program

6 to be unqualified to teach. Instead, it created the program to promote the recruitment of “highly

7 qualified mid-career professionals (including highly qualified paraprofessionals), and recent graduates

8 of an institution of higher education, . . . relying on the experience, expertise, and academic

9 qualifications of” the participants “in lieu of traditional course work in the field of education. See 20

10 U.S.C § 6681. Moreover, Congress favored Troops to Teachers for the very reason that it successfully

11 promoted the recruitment and quick placement of former military personnel with subject-matter

12 knowledge as teachers in high-need school districts. See, e.g., 147 Cong. Rec. S4145, at S4147 (daily

13 ed. May 2, 2001) (Sen. Hutchinson) (noting the need to get military personnel into classroom in their

14 areas of expertise "although they don't have educational certificates or educational degrees"); Id. at

15 S13340 (daily ed. Dec. 17, 2001) (Sen. DeWine) (noting the need to involve members of the military

16 and individuals from other fields "with real world jobs" and to "make it easy for them to enter the

17 classroom). Indeed, even Senator Kennedy, whom plaintiffs cite as critical of 34 C.F.R. § 200.56, see

18 Pls.’ Mem. at 17, praised alternative route programs and stated that they were a critical component of

19 efforts to recruit teachers. See 148 Cong. Rec. S 5341, 5342-43.

20

Further, Congress specifically intended that the qualified participants in these programs would

21 teach in high-need schools. See 20 U.S.C. § 6683(i) (participant in Transition to Teaching must teach

22 in “high need” schools for minimum of three years); id. § 6602(3) (high need LEAs must have 10,000

23 children from families with incomes below poverty line or at least 20% of its children from families

24 below the poverty level); id. § 6682(3) (high need school must have 30% of its children from families

25 below poverty line or be able to substantiate significant teacher needs); 20 U.S.C. § 6674(a)(1)(B)

26 (participants in Troops-to-Teachers must agree to teach for at least three years in high need LEAs).

27

Thus, Congress understood that, by authorizing and encouraging the use of these programs,

28 participants would be teaching in schools governed by NCLB, and specifically in the high need schools

20
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1 cited by plaintiffs. Congressional understanding of the term “alternative route to teaching” was

2 consistent with the popular understanding of that term. See generally Feistritzer and Chester,

3 Alternative teacher Certification: A State-by-State Analysis 2002, National Center for Alternative

4 Certification, Washington DC (2002) [contained in A.R. at AR00001801-AR00001812]; see also id.

5 at AR0001805 (noting that alternative route programs are popular, for many reasons, among them

6 being that they are (1) field-based and provide mentoring, (2) are “tailor-made” in that they are

7 designed to meet the needs of individuals who already have a college degree and often other work

8 experience, and (3) “recruit individuals for specific teaching positions and place prospective teachers

9 in those jobs early in their training programs.”). Indeed, in a report of the House Committee on

10 Education and the Workforce refers to Ms. Feistritzer’s testimony on the subject of the qualities that

11 make alternative route programs attractive and effective. See H.R. Rep. No. 107-63 at 317-18

12 (accompanying bill that would become NCLB).

13

Plaintiffs argue that these programs were intended merely to recruit teachers who would be

14 considered to be highly qualified after completion of the alternate route program. See, e.g., Pls.’ Mem.

15 at 18. Accepting plaintiffs’ argument would place the states and LEAs in the contradictory position

16 of using these congressionally-authorized programs to place quality participants in high-need schools

17 but, by doing so, being considered in violation of NCLB’s requirement that they hire only highly

18 qualified teachers. It is inconsistent with Congress’s enactment of these alternate route programs to

19 conclude that Congress intended that participants be hired in violation of the statutory requirement

20 governing use of Title I funds in 20 U.S.C. § 6319(a) that all teachers of core academic subjects be

21 highly qualified. Indeed, interpreting section 7801(23) as plaintiffs propose would make it even more

22 difficult for alternative route programs to contribute to alleviating the shortage of teachers. Cf. 148

23 Cong. Rec. at S5341 (remarks of Sen. Kennedy) (citing need to hire more than 200,000 teachers to

24 address shortage and stating that alternative routes can be only one part of the solution).

25

B. The Regulation Is a Proper Application of Agency Expertise and is Consistent

with Congressional Intent.

26 Under Chevron, “[t]he power of an administrative agency to administer a congressionally

27 created . . . program necessarily requires the formulation of policy and the making of rules to fill any

28

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1 gap left, implicitly or explicitly, by Congress.” 467 U.S. at 843. Thus, where a statute is silent or

2 ambiguous, “Chevron requires a federal court to accept the agency’s construction of the statute, even

3 if the agency’s reading differs from what the court believes is the best statutory interpretation,”

4 provided the “agency’s construction is reasonable.” Nat’l Cable & Telecommunications Ass’n v.

5 Brand X Internet Servs., 545 U.S. 967, 980 (2005). So long as there is a rational basis for the agency’s

6 decision, the court must uphold that decision. See Nationsbank v. Variable Annuity Life Ins. Co., 513

7 U.S. 251, 257 (1995) (where agency’s “reading . . . defines a term in a way that is reasonable in light

8 of the legislature’s revealed design, the [court must] give the [agency’s] judgment ‘controlling 9 weight’”); Univ. Med. Ctr. v. Thompson, 380 F.3d 1197, 1201 (9th Cir. 2004) (“When Congress’s

10 intent cannot be clearly discerned from the statutory language, courts must defer to an agency’s

11 interpretation so long as it is ‘based on a permissible construction of the statute.’”); Wilson v. 12 Secretary, Dep’t of Veteran Affairs, 65 F.3d 402, 404 (5th Cir. 1995) (“The agency decision need only

13 have a rational basis, and it does not have to be a decision which the court would have made.”).

14

Section 200.56(a)(2)(ii) resolves the ambiguity in 20 U.S.C. § 7801(23)(A), addresses the

15 concerns expressed by Congress in enacting NCLB, and is based on consideration of factors discussed

16 in the administrative record. Further, it does not improperly permit teachers “with no prior training

17 nor any prior experience” to be deemed highly qualified, as plaintiffs argue. See Pls.’ Mem. at 6.

18 First, the regulation does not state that participants in alternative route programs are automatically

19 deemed “highly qualified,” as plaintiffs’ charge. See Pls.’ Mem. at 1 (arguing that teachers

20 participating in alternative route programs “are, by Defendants’ regulation, “‘highly qualified’”); id.

21 at 18 (challenging regulation as permitting participants to “instantaneously become ‘highly qualified’

22 the day they join the alternative route program”). The regulation merely defines one way that a teacher

23 may be deemed, for purposes of NCLB’s highly qualified teacher requirements, to have “full State

24 certification” to teach and when certification may be granted “through” an alternative route program.

25 See 34 C.F.R. § 200.56(a) (stating circumstances under which participant in alternative route program

26 may be considered as having “full State certification as a teacher” or to be licensed to teach). Full state

27 certification is only one criterion that a teacher must satisfy to be considered “highly qualified.”

28

Second, the regulation is entirely consistent with the minimal other criteria Congress did

22
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1 specify for considering teachers to be “highly qualified”: having at least a bachelor’s degree and

2 demonstrating relevant subject-matter knowledge. 20 U.S.C. § 7801(B). Each of these requirements

3 is maintained in ED’s regulation. See 34 C.F.R. 200.56(b)(teachers are highly qualified only if they

4 meet the requirements of paragraph (a) for full state certification and demonstrate content knowledge

5 as prescribed in either paragraph (b), applicable to new teachers, or paragraph (c), applicable to

6 teachers not new to profession). Plaintiffs’ argument entirely ignores these additional requirements.

7

Further, ED’s regulation also places additional substantive requirements for teachers in

8 alternative route programs considered fully certified under subsection (a)(2)(ii) that would otherwise

9 not be present absent the regulation. Because Congress has not defined any minimal standards that

10 a state must meet before certifying a teacher, absent further regulation by the Secretary, states could

11 resolve the ambiguity by certifying teachers participating in any alternative route program. ED’s

12 regulation further defines what a State may consider to constitute “full State certification” by requring

13 that participants in alternative route programs who have not yet completed the program must also:

14

(1) Receive[] high-quality professional development that is sustained, intensive, and

classroom focused in order to have a positive and lasting impact on classroom

15

instruction, before and while teaching;

(2) Participate[] in a program of intensive supervision that consists of structured

16

guidance and regular ongoing support for teachers or a teacher mentoring program;

(3) Assume[] functions as a teacher only for a specified period of time not to exceed

17

three years; and

(4) Demonstrate[] satisfactory progress toward full certification as prescribed by the

18

State.

19 34 C.F.R. § 200.56(a)(2)(ii)(A). This provision not only ensures that teachers who would become fully

20 certified for purposes of the NCLB definition of highly qualified are participating in programs that

21 Congress presumably wanted to be effective. See Feistritzer and Chester, A.R. at AR00001801-12.

22 It also draws a reasonable line between participation in an alternative route program that can

23 legitimately offer full State certification and what might appear to, in effect, impermissibly permit

24 “certification or licensure requirements waived on an emergency, temporary, or provisional basis.”

25 Compare 20 U.S.C. § 7801(A)(ii). Thus, these standards respond to concerns that states might certify

26 alternative route participants who lacked sufficient training. See A.R. at AR0000099.

27

Third, these standards, along with the statutory standards of section 7801 (bachelor’s degree,

28 subject matter knowledge) rebut plaintiffs’ charge that the regulation undermines teacher quality in

23
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1 poor and minority schools. See Pls.’ Mem. at 19. ED’s regulation requires that all teachers in poor

2 and minority schools, just like all other teachers, meet these standards to be considered highly

3 qualified. Indeed, both the Council of Great City Schools, which represents many of the Nation’s

4 largest urban school districts, and the Education Trust, a nonprofit organization that advocates on

5 behalf of quality education for poor and disadvantaged students strongly supported the thrust of the 6 proposed section 200.56. See A.R. at AR0000113, 126, 191, 196.11 Moreover, the need for poor and

7 minority students – indeed, all students – to have a quality education is measured by NCLB in other

8 ways not affected by section 200.56. For example, states must show that students are making adequate

9 yearly progress academically, in addition to ensuring that teachers meet the statutory and regulatory

10 requirements to be considered highly qualified. See 20 U.S.C. §§ 6311(b)(2), 6316(b)(7)(C).

11

Fourth, these standards rebut plaintiffs’ charge that the regulation is contrary to concerns

12 expressed by members of Congress during debate on NCLB. Plaintiffs cite the insertion of “full” into

13 section 7801 by the Conference Committee. See Pls.’ Mem. at 15-16. Yet, as plaintiffs acknowledge,

14 the Conference Committee did so without debate. Plaintiffs cite no explanation by the Conference

15 Committee whatsoever of its purpose and certainly nothing stating that this phrase is “unambiguous

16 or unyielding,” as plaintiffs wish it to be. See Pls.’ Mem. at 16. The Conference Committee therefore

17 provides no guidance whatsoever, let alone guidance that undermines the Secretary’s regulation.

18

Plaintiffs also cite concerns expressed by members of Congress during debate. Plaintiffs cite

19 comments by Congresswoman Solis and Congressman Miller expressing concerns about whether

20 teachers were in fact certified to teach. See Pls.’ Mem. at 16. The regulation does not allow an

21 exemption from certification requirements, but provides standards that states must apply when

22 considering teachers to be fully certified for purposes of determining whether they are highly qualified;

23 the regulation does not permit uncertified teachers to teach. See 34 C.F.R. § 200.56 (stating only that

24 teachers meeting the requirements of subsection (a)(2) are deemed to meet the licensing and

25 certification requirements of subsection (a)(1)). Plaintiffs also cite concerns by Senator Lieberman that

26 teachers have crucial subject matter knowledge needed by today’s students. Id. Again, ED’s

27 11 The Secretary’s revisions of section 200.56 for final promulgation addressed the Education
28 Trust’s concerns about the breadth of the proposed rule.

24
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1 regulation requires that participants in alternative routes demonstrate subject matter knowledge as

2 required by Congress to be considered highly qualified. Compare 20 U.S.C. § 7801(23)(B)(i)(II),

3 (ii)(I), (II) with 34 C.F.R. § (b)(2), (3)(i), (3)(ii).

4

Fifth, ED’s regulation recognizes the importance that Congress has placed on alternative route

5 programs. Indeed, in promulgating section 200.56, the Secretary recognized that schools should be

6 permitted, consistent with Congress’s intent, to use alternative route programs to increase the pool of

7 available teachers. See A.R. at AR0000099. And, by defining when states may consider participants

8 in alternative route programs to be fully certified, ED’s regulation contributes to the continued integrity

9 of alternative route programs by ensuring that such programs meet Congress’s objectives rather than

10 becoming “long term vehicles for waiving state requirements for full certification.” See id.

11

Finally, plaintiffs cite the Secretary’s explanation of section 200.56 to argue that the regulation

12 improperly allows participants in alternative route programs to be considered highly qualified on a

13 provisional basis not to exceed three years. See Pls.’ Mem. at 14. Contrary to argument, the plain

14 language of the regulation itself provides no exception that could be considered a waiver. Instead, the

15 regulation plainly provides an avenue by which states may consider the teacher to be fully certified,

16 not an avenue by which states may waive otherwise applicable requirements for full certification.

17

Because ED’s regulation maintains all the specific standards enacted by Congress for teachers

18 to be considered “highly qualified” and has a rational basis for defining how states may consider

19 participants in alternative route programs to be fully certified, section 200.56 is a proper construction

20 of 20 U.S.C. § 7801(23) and is therefore entitled to deference by this Court under Chevron.

21

C. Plaintiffs’ Proffered Evidence Is Irrelevant and Cannot Be Considered by This

Court because It Is Not Part of the Administrative Record.

22 In addition to arguing against the regulation’s reasonableness, plaintiffs attempt to bolster their

23 position by submitting declarations and other material in an apparent attempt to build an evidentiary

24 record separate from the administrative record. This is entirely improper in a case such as this. Under

25 the APA’s arbitrary and capricious standard, the scope of judicial review is narrow. See Motor

26 Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29 (1983). The Court may not

27 substitute its judgment for that of the agency. Citizens to Preserve Overton Park v. Volpe, 401 U.S.

28

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1 402, 416 (1971). Instead, the Court is limited to determining “whether the decision was based upon

2 a consideration of the relevant factors and whether there has been a clear error of judgment.” Overton

3 Park, 401 U.S. at 416; see also Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989).

4

Thus, the Supreme Court has repeatedly held that, with limited exceptions not applicable here,

5 judicial review of agency action is limited to the administrative record. A reviewing court “is not

6 generally empowered to conduct a de novo inquiry into the matter being reviewed.” Florida Power &

7 Light Co. v. Lorion, 470 U.S. 729, 744 (1985); see also Great Basin Mine Watch v. Hankins, 456 F.3d 8 955, 975 (9th Cir. 2006). Instead, the high degree of deference afforded to an agency's designation of

9 its administrative record is crucial to the judicial and administrative processes:

10

[J]udicial reliance on an agency's stated rationale and findings is central to a

harmonious relationship between agency and court, one which recognizes that the

11

agency and not the court is the principal decision-maker. Were courts cavalierly to

supplement the record, they would be tempted to second-guess agency decisions in the

12

belief that they were better informed than the administrators empowered by Congress

and appointed by the President. The accepted deference of court to agency would be

13

turned on its head: the so-called administrative state would be replaced with one run

by judges lacking the expertise and resources necessary to discharge the function they

14

had arrogated unto themselves.

15 Deukmejian v. Nuclear Regulatory Comm'n, 751 F.2d 1287, 1325-26 (D.C. Cir. 1984). In addition,

16 the agency’s designation of the administrative record is entitled to a presumption of regularity, a

17 presumption overcome only on a showing of “clear evidence” to the contrary. Bar MK Ranches v.

18 Yeutter, 994 F.2d 735, 740 (10th Cir. 1993). Accordingly, the “‘focal point for judicial review should

19 be the administrative record already in existence, not some new record made initially in the reviewing

20 court,’” and review should be “based on the record the agency presents to the reviewing court.” Fla.

21 Power & Light Co., 470 U.S. at 743-44 (quoting Camp v. Pitts, 411 U.S. 138, 143 (1973) and citing

22 Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971)). Should the Court find that "the

23 record before the agency does not support agency action, if the agency has not considered all relevant

24 factors, or if the reviewing court simply cannot evaluate the challenge of agency action on the basis

25 of the record before it, the proper course, except in rare circumstances, is to remand to the agency for

26 additional investigation or explanation." Id. at 744.

27

Though the Ninth Circuit permits supplementation of an agency record in limited

28 circumstances, see Great Basin Mine Watch, 456 F.3d at 975, plaintiffs have not shown that any of

26
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1 these exceptions applies here. Instead, plaintiffs submit this outside evidence “to cast doubt on the

2 wisdom” of the agency’s decision. See National Treasury Employees Union v. Hove, 840 F.Supp.

3 165, 169 (D.C. Cir. 1994). Such a purpose is improper, and the Court should therefore disregard 4 plaintiffs’ extraneous material.12

5 III. EVEN IF PLAINTIFFS WERE TO SUCCEED, THEY REQUEST RELIEF TO WHICH THEY ARE NOT ENTITLED.

6 A. Plaintiffs Are Not Entitled to the Broad, Sweeping Relief They Request in Their

7

Complaint.

8

Plaintiffs rely upon the APA’s provision permitting a Court to “hold unlawful or set aside” a

9 challenged agency action that is arbitrary, capricious, an abuse of discretion, or otherwise contrary to

10 law. Pls.’ Mem. at 21 (citing 5 U.S.C. § 706(2)). Yet, plaintiffs ask the Court to do much more than

11 this. In addition setting aside section 200.56, plaintiffs seek an injunction against submission of the

12 statutorily-required report to Congress on progress toward meeting the requirements of NCLB for the

13 2005-06 school year, First Am. Compl. at 36; Pls.’ Prop. Order at 4-5, an order that defendants notify

14 Congress that the 2002-03 report to Congress relied upon an unlawful definition of highly qualified

15 teachers, First Am. Compl. at 36; Pls.’ Prop. Order at 5, and an order that defendants notify the states

16 that the regulation is unlawful and specifying the terms of guidance defendants must give the States.

17 First Am. Compl. at 36; Pls.’ Prop. Order at 4.

18

These requests go well beyond the relief available under the APA. Plaintiffs seeking

19 affirmative relief under the APA are generally limited to seeking enforcement under 5 U.S.C. § 706((1)

20 of mandatory obligations that an agency take specific, discrete action prescribed by law. See Norton

21 v. Southern Utah Wildlife Alliance,542 U.S. 55, 63 (2004) (ruling that “the only agency action that

22 can be compelled under the APA is action legally required.” (italics in original)); see also id. at 65

23 (terms of APA “rule[] out judicial direction of even discrete agency action that is not demanded by

24 law”). Plaintiffs point to no statutory or regulatory obligation that would require the additional

25 affirmative relief they request. Plaintiffs also cite no private cause of action in the NCLB or any other

26

27

12 For these same reasons, defendants could move to strike this extraneous material. However,

the Supreme Court has made clear that the Court is not to consider this material, and, thus, the Court 28
need only determine to disregard the material in reviewing the regulation.

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1 statute regarding whether additional guidance beyond regulations the Secretary deems appropriate, see

2 20 U.S.C. § 6311, should be provided to the states or to Congress. Further, although the Ninth Circuit

3 has held that Norton may be distinguishable when claims are brought under 5 U.S.C. § 706(2), see 4 Northwest Env’t Def. Ctr. v. Bonneville Power Admin., 477 F.3d 668, 681 & n.10 (9th Cir. 2007),

5 plaintiffs have set forth no rationale for why such additional relief beyond an order setting aside 34

6 C.F.R. § 200.56(a)(2)(ii) is necessary to provide them full redress. Thus, plaintiffs’ request for

7 affirmative relief goes well beyond the APA’s remedy of compelling only agency action “unlawfully

8 withheld or unreasonably delayed.” 5 U.S.C. § 706(2).

9

Moreover, plaintiffs have cited no rational for remedies involving reports to Congress nor any

10 injury-in-fact that would entitle them to relief based upon such reports. Congress is presumed to be

11 aware of the law, and defendants published section 200.56 in 2002. Indeed, Congress’s knowledge

12 of the regulation is demonstrated on the record by submissions of comments by congressional

13 committees. See, e.g., A.R. at AR0000108-111. Further, it is inconceivable that Congress would not

14 be aware of any decision by this Court that adversely affects the Secretary’s NCLB regulations and

15 declares that participants in Teach for America could not be considered “highly qualified” under

16 NCLB. Moreover, any injury plaintiffs claim to suffer from the 2002-03 or 2005-06 reports to

17 Congress is entirely too speculative to provide them with Article III standing. See Lujan, 504 U.S. at

18 561 (plaintiffs must demonstrate concrete and particularized injury that is actual or imminent, not

19 conjectural or hypothetical); Assoc. Gen. Contractors, 508 U.S. at 663 (standing requires showing of

20 injury in fact, causal relationship between injury and challenged activity, and that favorable court

21 ruling will redress alleged injury); cf. Lance, 127 S. Ct. at 1196 (2007) (Supreme Court has

22 “‘consistently held that a plaintiff raising only a generally available grievance about government –

23 claiming only harm to his and every citizen’s interest in proper application of the Constitution and

24 laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large

25 – does not state an Article III case or controversy.’” (quoting Lujan, 504 U.S. at 573-74)).

26

Finally, plaintiffs’ request that the Court prohibit the Secretary from reporting to Congress is

27 not only improper, but entirely inconsistent with the APA. Congress requires the Secretary to report

28 to it annually. See 20 U.S.C. § 6311(h)(5). The APA only provides an avenue to compel compliance

28
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1 with statutory requirements, not to prohibit such compliance, as plaintiffs request.

2

B. Plaintiffs Are Not Entitled to a Nationwide Injunction.

3

Finally, plaintiffs argue that if the Court were to determine that section 200.56 is invalid, the

4 Court should enter a nationwide injunction against the regulation rather than limit the scope of relief

5 to the schools attended by the individual minor plaintiffs. See Pls.’ Mem. at 21-23. Plaintiffs’ citation 6 of Earth Island Institute v. Ruthenbeck, 490 F.3d 687 (9th Cir. 2007), to argue that the Ninth Circuit

7 holds that the APA compels a nationwide injunction when regulations are invalidated, see Pls.’ Mem.

8 at 21-22, is inconsistent with Supreme Court caselaw. Indeed, the Supreme Court has agreed to review

9 the Ninth Circuit’s holding in Earth Island Institute. See Summers v. Earth Island Inst., __ S. Ct. __,

10 2008 WL 161477 (Jan. 18, 2008) (granting cert. in Earth Island Institute, 490 F.3d 687).

11

A nationwide injunction would conflict with Supreme Court caselaw in several ways. First,

12 such an injunction would constitute an exercise of power to vacate in their entirety agency regulations

13 that Congress has only rarely conferred and has been limited to certain regulations that may be

14 challenged before the United States Court of Appeals for the District of Columbia Circuit, while

15 freeing plaintiffs from constraints (such as a specified appellate-court venue and a short filing period)

16 that are characteristic of such provisions. See, e.g., 42 U.S.C. § 7607(b)(1) (authorizing petition for

17 review of EPA Clean Air Act regulation with nationwide applicability if filed in D.C. Circuit within

18 60 days after rule published). Second, a nationwide injunction would grant relief usually available

19 only in a nationwide class action, but without the procedural prerequisites and protections mandated

20 by Federal Rule of Civil Procedure 23 and without the prospect of nationwide preclusive effect in the

21 government’s favor if the named plaintiff loses on the merits.

22

Most important, such an injunction would effectively disregard the usual process by which

23 recurring legal issues involving the federal government may be relitigated in different circuits, in

24 contradiction of Supreme Court precedent. In holding that non-mutual collateral estoppel should not

25 apply to the federal government, the Supreme Court explained that:

26

A rule allowing nonmutual collateral estoppel against the government . . . would

substantially thwart the development of important questions of law by freezing the first

27

final decision rendered on a particular legal issue. Allowing only one final adjudication

would deprive [the Supreme] Court of the benefit it receives from permitting several

28

courts of appeals to explore a difficult question before [the Supreme] Court grants

29
Defendants' Consolidated Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment and in Support of Their Cross Motion for Summary Judgment Civil Action No. 3:07cv4299-PJH

Case4:07-cv-04299-PJH Document59-1 Filed02/15/08 Page38 of 39

1

certiorari.

2 United States v. Mendoza, 464 U.S. 154, 160 (1984). Entering a nationwide injunction in this case

3 would introduce the same practical difficulties that the Supreme Court sought to avoid in Mendoza.

4

Finally, the APA’s statement that a reviewing court should “hold unlawful and set aside”

5 agency action, 5 U.S.C. § 706(2), should not be read as overturning the normal presumption that

6 equitable relief be tailored to the particular agency action and the parties before the Court (as well as

7 the district in which the Court resides). Instead, injunctive relief “should be no more burdensome to

8 the defendant than necessary to provide complete relief to the plaintiffs.” Califano v. Yamasaki, 442

9 U.S. 682, 702 (1979); see also Dep’t of Defense v. Meinhold, 510 U.S. 939 (1993) (staying Armed-

10 Forces wide injunction, except as applied to individual plaintiff). Plaintiffs have not shown that the

11 injury they assert requires a nationwide injunction rather than one applicable within their school

12 districts. All of the individual plaintiffs are residents of the State of California. See generally First

13 Am. Compl. at ¶¶ 6-17. Even if the organizational plaintiffs are found to have standing, they are also

14 based in California. See id. ¶ 37 (CFJ efforts focused on “improving educational opportunities in

15 California’s public schools”); id. ¶ 39 (Cal. ACORN is California affilliate of national organization,

16 and is based in Oakland, California with chapters in California). Accordingly, entry of a nationwide

17 injunction would improperly grant them relief they do not need and deny the government and the

18 Supreme Court the benefit of litigating this issue before multiple courts and courts of appeals.

19

CONCLUSION

20

For the reasons stated, defendants request that the Court deny plaintiffs’ motion for summary

21 judgment and grant defendants’ cross motions to dismiss and for summary judgment.

22

23

24

25

26

27

28

30
Defendants' Consolidated Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment and in Support of Their Cross Motion for Summary Judgment Civil Action No. 3:07cv4299-PJH

Case4:07-cv-04299-PJH Document59-1 Filed02/15/08 Page39 of 39

1

CERTIFICATE OF SERVICE

2

I hereby certify that on February 15, 2007, a true and correct copy of the foregoing Defendants’

3 Opposition to Plaintiffs’ Motion for Summary Judgment and in Support of Their Cross-Motions to

4 Dismiss and for Summary Judgment was served by the Court’s ECF system upon the following:

5 John T. Affeldt

6

Jenny Pearlman

Tara Kini

7

PUBLIC ADVOCATES, INC.

131 Steuart Street, Suite 300

8

San Francisco, CA 94105

9

Patrick Thompson

Nicole E. Perroton

10

Elizabeth F. Stone

GOODWIN PROCTER LLP

11

Three Embarcadero Center, Third Floor

San Francisco, CA 94111

12 Jeffrey Simes

13

GOODWIN PROCTER LLP

599 Lexington Avenue

14

New York, NY 10022

15

David B. Cook

GOODWIN PROCTER LLP

16

901 New York Avenue, N.W.

Washington, D.C. 20001

17 Attorneys for Plaintiffs

18

19

/S/

MICHAEL Q. HYDE

20

21

22

23

24

25

26

27

28

31
Defendants' Consolidated Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment and in Support of Their Cross Motion for Summary Judgment Civil Action No. 3:07cv4299-PJH

 
 Case: 08-16661, 05/10/2012, ID: 8172595, DktEntry: 107-1, Page 1 of 29

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

 SONYA RENEE; CANDICE JOHNSON, a

minor, by Sonya Renee, her

guardian ad litem; MARIBEL

HEREDIA; JOSE ALDANA, a minor,

by Maribel Heredia, his guardian

ad litem; B. DOE, a minor, by N.

Doe, her guardian ad litem;

MARIEL RUBIO; DANIELLE RUBIO, a

minor, by Mariel Rubio, her

guardian ad litem; STEPHANIE

RUBIO, a minor, by Mariel Rubio,

her guardian ad litem; GUADALUPE

GONZALEZ; DAISY GONZALEZ, a minor, by Guadalupe Gonzalez,

No. 08-16661

her guardian ad litem; JAZMINE JOHNSON, a minor, by Deanna Bolden, her guardian ad litem; ADRIANA RAMIREZ, a minor, by Arcelia Trinidad Ramirez, her

 D.C. No. 3:07-CV-04299-PJH
ORDER AND OPINION

guardian ad litem; JANE DOE, a

minor, by John Doe, her guardian

ad litem; CALIFORNIANS FOR JUSTICE

EDUCATION FUND; CALIFORNIA

ASSOCIATION OF COMMUNITY

ORGANIZATIONS FOR REFORM NOW,

Plaintiffs-Appellants,

v.

ARNE DUNCAN, in his official capacity; UNITED STATES DEPARTMENT OF EDUCATION,
 Defendants-Appellees.

5007

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5008

RENEE v. DUNCAN

Appeal from the United States District Court for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding

Argued and Submitted June 23, 2011—Pasadena, California

Filed May 10, 2012

Before: Dorothy W. Nelson, William A. Fletcher and Richard C. Tallman, Circuit Judges.

Opinion by Judge William A. Fletcher; Partial Concurrence and Partial Dissent by Judge Tallman

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RENEE v. DUNCAN

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COUNSEL
John T. Affeldt and Tara Kini, Public Advocates, Inc., San Francisco, California, for the plaintiffs-appellants.
Alisa B. Klein, United States Department of Justice, Civil Division, Washington, D.C., for the defendants-appellees.
Lisa A. Davis, Wilson Sonsini Goodrich & Rosati P.C., Palo Alto, California, for The National Coalition of ESEA Title I Parents, Inc., et al., as amicus curiae.
Donald B. Verilli, Jr., Jenner & Block LLP, Washington, D.C., for Teach for America, et al., as amicus curiae.
ORDER
This court’s opinion filed September 27, 2010, and reported at 623 F.3d 787, is supplemented with the attached.

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RENEE v. DUNCAN

The petition for rehearing, filed on October 12, 2010, is GRANTED.

OPINION
W. FLETCHER, Circuit Judge:
Appellants Sonya Renee, et al., appeal the district court’s order granting summary judgment in favor of Appellees U.S. Department of Education and Arne Duncan, Secretary of Education1 (collectively, “the Secretary”). Appellants challenge a federal regulation permitting teachers who are participating in alternative-route teacher training programs, but who have not yet obtained full State certification, to be characterized as “highly qualified teachers” under the No Child Left Behind Act (“NCLB”). The district court granted summary judgment to the Secretary.
This case has a complicated history. We initially vacated the judgment of the district court for lack of Article III standing in a published opinion, with one panel member dissenting. Renee v. Duncan, 573 F.3d 903 (9th Cir. 2009) (Renee I). We subsequently granted a petition for panel rehearing and withdrew our prior opinion. We reversed the district court on the merits in a new published opinion, now with a different panel member dissenting. Renee v. Duncan, 623 F.3d 787 (9th Cir. 2010) (Renee II). After issuance of our opinion in Renee II, Congress changed the statutory provision upon which we had based that opinion. The new statutory provision, Section 163 of the Continuing Appropriations and Surface Transportation Extensions Act of 2011, became effective on December 22, 2010. Continuing Appropriations and Surface Transportation Extensions Act, Pub. L. No. 111-322, § 1, 124 Stat. 3518,
1Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Secretary Arne Duncan is automatically substituted for former Secretary of Education Margaret Spellings as Appellee in this case.

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3521 (2010) (hereinafter “Section 163”). Section 163 expires at the end of the 2012-2013 academic year. Absent further congressional action, the statutory provision upon which we based our opinion in Renee II will again be in effect.

We conclude several things in this opinion. First, we conclude, as we concluded in Renee II, that before the passage of Section 163 the challenged regulation violated NCLB. Second, we conclude that after the passage of Section 163 and so long as it is in effect, the challenged regulation is consistent with NCLB. Third, we conclude that despite the passage of Section 163, this appeal is not moot. Fourth, we conclude that before the passage of Section 163, NCLB required the reports to Congress concerning “highly qualified teachers,” as that term was then defined in the statute. However, Appellants are not entitled to judicial enforcement of that reporting requirement. Finally, we conclude that Appellants are not entitled to attorney’s fees based on their success in Renee II.

We therefore affirm the judgment of the district court.

I. Background

A. No Child Left Behind Act and the Challenged Regulation

The No Child Left Behind Act was enacted in 2002. Its overarching goal is “to ensure that all children have a fair, equal, and significant opportunity to obtain a high-quality education and reach, at a minimum, proficiency on challenging State academic achievement standards and state academic assessments.” 20 U.S.C. § 6301. NCLB seeks to close the “achievement gap between high- and low-performing children, especially the achievement gaps between minority and nonminority students, and between disadvantaged children and their more advantaged peers.” Id. § 6301(3).

NCLB provides funds to states and schools under several of its provisions, one of which is central to this appeal. Spe-

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RENEE v. DUNCAN

cifically, Title I funds are used to supplement the educational needs of disadvantaged students. Id. §§ 6301 et seq. The Secretary has the authority to withhold funds or to take other enforcement action if a state fails to comply substantially with NCLB’s requirements. Id. § 1234c (“Whenever the Secretary has reason to believe that any recipient of funds under any applicable program is failing to comply substantially with any requirement of law applicable to such funds, the Secretary may . . . withhold further payments under that program as authorized by section 1234d of this title[.]”).

A premise of NCLB is that good teachers — defined by Congress as “highly qualified” teachers — are crucial to educational success. NCLB requires that by the end of the 200506 academic year only “highly qualified” teachers should instruct core academic classes in school districts receiving Title I funding (the “100% requirement”). Id. § 6319(a)(2). “Core academic subjects” are “English, reading or language arts, mathematics, science, foreign languages, civics and government, economics, arts, history, and geography.” Id. § 7801(11); 34 C.F.R. § 200.55(c).

NCLB requires that states and school districts develop and submit plans to meet the mandates of the statute. 20 U.S.C. §§ 6311(a)(1), 6311(b)(8)(C), 6319(a)(2) (state plans); id. §§ 6312(b)(1)(N), 6312(c)(1)(I), 6319(a)(3) (district plans). Each state is responsible for ensuring compliance by its local school districts. Id. §§ 1232c, 7844(a). To receive funds under Title I of the statute, NCLB requires states to identify steps they will take to ensure that “poor and minority children are not taught at higher rates than other children by inexperienced, unqualified, or out-of-field teachers.” Id. § 6311(b)(8)(C).

NCLB also requires that states and school districts report annually on their progress toward meeting the 100% requirement. Id. §§ 6311(h)(1)(C)(viii), 6311(h)(2), 6319(b)(1). States must provide this information to the Secretary, id.

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§§ 6311(h)(4)(G), 6319(b)(1)(B), who must report nationwide statistics on “highly qualified teachers” to Congress, id. § 6311(h)(4)-(5). Schools receiving Title I funds must inform a parent when his or her child is taught for four or more weeks by a teacher who is not “highly qualified.” Id. § 6311(h)(6)(B)(ii).

If a “State educational agency” fails to submit to the Secretary a “plan” satisfying the requirements of NCLB, id. § 6311(a)(1), the Secretary may withhold federal funds until the state has done so. Id. § 6311(g)(2) (“If a state fails to meet any of the requirements of this section, other than the requirements described in paragraph (1) [not at issue here], then the Secretary may withhold funds for State administration under this part until the Secretary determines that the State has fulfilled those requirements.”); id. § 6311(b)(8)(C) (“Each State plan shall describe . . . the specific steps the State educational agency will take to ensure that both schoolwide programs and targeted assistance schools provide instruction by highly qualified instructional staff as required by sections 6314(b)(1)(C) and 6315(c)(1)(E).”).

NCLB contains a lengthy definition of “highly qualified teacher.” Of central concern in this litigation, before the passage of Section 163, “highly qualified” meant that:

the teacher has obtained full State certification as a teacher (including certification obtained through alternative routes to certification) or passed the State teacher licensing examination, and holds a license to teach in such State, except that when used with respect to any teacher teaching in a public charter school, the term means that the teacher meets the requirements set forth in the State’s public charter school law[.]

20 U.S.C. § 7801(23)(A)(i) (emphasis added).

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RENEE v. DUNCAN

On December 2, 2002, the Secretary promulgated regulations providing a more detailed definition of the statutory term “highly qualified teacher.” 34 C.F.R. § 200.56. Section 200.56 provides, in pertinent part:

[A] “highly qualified teacher” . . . meets the requirements in paragraph (a) [and other paragraphs not relevant to this appeal].

(a) In general.

(1) Except as provided in paragraph (a)(3) of this section [covering charter schools], a [“highly qualified”] teacher . . . must —

(i) Have obtained full State certification as a teacher, which may include certification obtained through alternative routes to certification; or

(ii)(A) Have passed the State teacher licensing examination; and (B) Hold a license to teach in the State.

(2) A teacher meets the requirement in paragraph (a)(1) of this section if the teacher —

(i) Has fulfilled the State’s certification and licensure requirements applicable to the years of experience the teacher possesses; or

(ii) Is participating in an alternative route to certification program under which —

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RENEE v. DUNCAN (A) The teacher —

5017

(1) Receives high-quality professional development . . . ;

(2) Participates in a program of intensive supervision . . . ;

(3) Assumes functions as a teacher only for a specified period of time not to exceed three years; and

(4) Demonstrates satisfactory progress toward full certification as prescribed by the State[.]

Id. (emphasis added).

Neither NCLB nor the Secretary’s regulation defines “alternative routes to certification.” The traditional path to a teaching credential generally involves obtaining a degree and taking education courses. The term “alternative routes to certification” generally refers to non-traditional training programs that are typically designed for people who already hold at least a bachelor’s degree in a field other than education. These alternative programs are often designed to address teacher shortages in specific subjects or geographic areas. See, e.g., Cal. Educ. Code § 44382 (“Alternative certification programs shall address geographic and subject matter shortage areas, and shall be targeted toward people with work experience and others who already have a bachelor’s degree in the field in which they plan to teach.”).

Some aspects of the traditional route to teacher certification — such as formal course work in education philosophy or pedagogy — are typically shortened, or sometimes waived altogether, in alternative-route programs. Several well-known

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RENEE v. DUNCAN

and successful alternative-route programs, such as Teach for America and Troops to Teachers, provide some training to participants before they begin teaching in the classroom. Teach for America participants, for example, receive training during the summer before they enter the classroom. Support and training typically continue for the length of an alternativeroute program. After successful completion of an alternativeroute program, a teacher receives a credential similar or identical to a credential obtained after successful completion of a traditional teacher-training program.

In December 2010, after the issuance of Renee II, our second panel opinion in this case, Congress amended the Continuing Appropriations Act by adding Section 163. Section 163 provides:

(a) A “highly qualified teacher” includes a teacher who meets the requirements in 34 C.F.R. 200.56(a)(2)(ii) . . . .

(b) This provision is effective on the date of enactment of this provision through the end of the 201213 academic year.

§ 1, 124 Stat. at 3521. Section 163 thus expands the statutory definition of “highly qualified teacher.” After the passage of Section 163, and for so long as Section 163 remains in effect, an alternative-route teacher who “demonstrates satisfactory progress toward full certification” is a “highly qualified teacher” within the meaning of NCLB.

B. California Law

Neither NCLB nor the Secretary’s regulation defines the term “full State certification” contained in NCLB. The parties agree that NCLB gives the states considerable flexibility in establishing credentialing systems under which a state teaching permit or credential may constitute “full State certifica-

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RENEE v. DUNCAN

5019

tion” within the meaning of NCLB. The focus of this litigation is public school teachers in California. California law uses the terms “waiver,” “permit,” and “credential” to indicate various levels of teachers, and of certification, under state law. California has several levels of waivers, permits, and credentials, arranged in a rough hierarchy.

First, beginning at the bottom of the hierarchy, there are waivers. Individuals can teach pursuant to a waiver of the requirement for either a permit or credential. The Commission on Teacher Credentialing has authority to grant waivers in specified situations. Cal. Educ. Code § 44225(m).

Second, there are emergency permits, including an Emergency 30-day Substitute Teaching Permit, Cal. Code Regs. tit. 5, § 80025, and an Emergency Career Substitute Teaching Permit, id. § 80025.1. Emergency permits are valid for no more than one year and are restricted to the district that requested the issuance of the permit. Id. § 80023.1. Teachers can renew emergency permits, but renewal ordinarily requires, among other things, demonstrated progress toward a non-emergency credential. Id. § 80026.6(a)(6).

Third, there are Short-Term Staff Permits and Provisional Internship Permits. Unlike emergency permits, which largely cover substitute teachers, these permits allow a teacher to serve as a teacher of record in an assigned classroom. Id. §§ 80021(e), 80021.1(e).

Fourth, there is an “intern credential.” This is the first certification in the hierarchy that California characterizes as a “credential” rather than a “permit.” An intern credential holder is participating in, but has not yet completed, an alternative-route teacher training program. See Cal. Educ. Code §§ 44830.3, 44259(b)(3)(C). Like Short-Term and Provisional Internship permits, an intern credential allows the holder to serve as a teacher of record. Id. §§ 44325(a), 44326, 44830.3(a). California requires internship programs to provide

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“preservice training . . . tailored to the grade level or class to be taught . . . .” Id. § 44830.3(b)(3).

Fifth, there is a “preliminary credential.” A preliminary credential may be obtained through either a traditional or an alternative-route teacher training program. Id. § 44259(b)(3). A preliminary credential is generally valid for five years. Id. § 44251(a)(2), (b)(2). The minimum requirements for a preliminary credential include a bachelor’s degree, a passing score on the state’s “basic skills examination,” satisfactory completion of an accredited “program of professional preparation” (including traditional and alternative-route programs), and a passing score on one or more subject matter examinations or completion of an approved subject matter program. Id. § 44259(b).

Finally, at the top of the hierarchy, there is a “clear credential.” See id. § 44259(c). To obtain a clear credential, an individual must have held a preliminary credential, have completed a “program of beginning teacher induction,” and have gained experience in specified areas. Id. § 44259(c)(2), (4). Clear credentials are generally valid for life. See id. § 44251(a)(3), (b)(3).

In 2004, after the promulgation of the federal regulation challenged in this case, California promulgated regulations that mimicked the federal regulation. The California regulation applicable to middle and secondary schools provides that a teacher “meets NCLB requirements” if the teacher “[i]s currently enrolled in an approved intern program for less than three years or has a full credential.” Cal. Code Regs. tit. 5, § 6110(2) (emphasis added). The regulation applicable to elementary schools provides the same thing, but omits the word “full” before “credential.” Id. § 6101(2) (“[i]s currently enrolled in an approved intern program for less than three years or has a credential”) (emphasis added). By their use of the word “or,” these regulations indicate that an intern teacher does not have a “(full) credential.” That is, the California reg-

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RENEE v. DUNCAN

5021

ulations provide the qualification criterion in the alternative: A teacher “meets NCLB requirements” if the teacher is “enrolled in an approved intern program” or if the teacher “has a (full) credential.”

As described in greater detail above, the challenged federal regulation provides that a teacher may be considered fully certified, and thus “highly qualified,” within the meaning of NCLB, if the teacher “[i]s participating in an alternative route to certification program” and “[d]emonstrates satisfactory progress toward full certification,” or if the teacher “[h]as fulfilled the State’s certification and licensure requirements applicable to the years of experience the teacher possesses.” 34 C.F.R. § 200.56(a)(2). The California regulations thus mimic the federal regulation, providing that a teacher “meets NCLB requirements” if that teacher is “currently enrolled in an approved intern program for less than three years” or “has a (full) credential.” Cal. Code Regs. tit. 5, §§ 6110(2), 6101(2).

Before the passage of Section 163, Appellants did not object to characterizing an alternative-route teacher who had already obtained “full State certification” as a “highly qualified teacher.” See 20 U.S.C. § 7801(23)(A)(i) (“highly qualified teacher” includes an alternative-route teacher who “has obtained full State certification as a teacher”) (emphasis added); 34 C.F.R. § 200.56(a)(1)(i) (“highly qualified teachers” include alternative-route teachers who “have obtained full State certification as a teacher”) (emphasis added). However, Appellants did object to characterizing as a “highly qualified teacher” an alternative-route teacher who had not yet obtained full state certification, but who merely “[d]emonstrates satisfactory progress toward full certification[.]” 34 C.F.R. § 200.56(a)(2)(ii)(A)(4) (emphasis added). Before the passage of Section 163, Appellants contended that such teachers were not “highly qualified” within the meaning of § 7801(23). Appellants contended that the challenged federal regulation, upon which the 2004 California regulations

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are based, allowed a disproportionate number of intern teachers to teach in minority and low-income schools in California, in violation of NCLB. Specifically, they contended that intern teachers in California did not have “full State certification” and were thus not “highly qualified teachers” within the meaning of NCLB. They contended that if the § 200.56(a)(2)(ii) were declared invalid, California would not be allowed to treat intern teachers as highly qualified teachers for purposes of NCLB. Appellants contended that in that event California would likely take steps to ensure that fewer intern teachers, and more teachers with “preliminary” and “clear” credentials, teach in minority and low-income public schools in California.

C. Proceedings in the District Court

Appellants brought suit in federal district court, alleging that § 200.56(a)(2)(ii) was invalid because it characterized an alternative-route teacher who is still in the process of obtaining “full State certification” as a “highly qualified teacher.” Both parties moved for summary judgment on the merits. The district court granted summary judgment to the Secretary, upholding § 200.56(a)(2)(ii). Appellants timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291.

II. Standard of Review

We review de novo questions of justiciability under Article III. Porter v. Jones, 319 F.3d 483, 489 (9th Cir. 2003). We also review de novo a district court’s grant of summary judgment. Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d 930, 941 n.17 (9th Cir. 2006). “Although we give deference to an agency’s construction of a statutory provision it is charged with administering, we must reject those constructions that are contrary to clear congressional intent or that frustrate the policy Congress sought to implement.” Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1175 (9th Cir. 2002) (internal citation omitted).

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RENEE v. DUNCAN III. Discussion

5023

A. Before Passage of Section 163

In this section of the opinion, we discuss Appellant’s challenge to 34 C.F.R. § 200.56(a)(2)(ii) before the passage of Section 163. Before its passage, we concluded that Appellants had Article III standing and that § 200.56(a)(2)(ii) was inconsistent with the plain language of NCLB. In this section, we recapitulate our discussion and holding in Renee II.

1. Order of Discussion

In a case where Article III justiciability is in question, we normally begin our discussion with that question because Article III justiciability is a prerequisite to reaching the merits of the dispute. But we reverse the usual order of discussion because we think our discussion of the merits will help the reader understand our discussion of Article III standing.

2. The Merits

The challenged federal regulation seeks to interpret and to implement NCLB. The regulation was adopted by the responsible federal agency through notice and comment rulemaking. We therefore applied the analytical framework outlined in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The first question is “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-843; see also Pac. Nw. Generating Coop. v. Dep’t of Energy, 580 F.3d 792, 806 (9th Cir. 2009). If, however, we determine that Congress has not clearly spoken on the precise question, the second question is whether the agency’s interpretation “is based on a permissible construction of the statute.” Chevron, 467 U.S. at 843. Because the intent of Congress, as expressed

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in NCLB before the passage of Section 163, was clear, we did not get beyond the first question.

[1] NCLB provides that an alternative-route teacher is “highly qualified” once he or she has obtained “full State certification.” Before the passage of Section 163, the statutory text provided, in pertinent part:

The term “highly qualified” —

(A) when used with respect to any public elementary school or secondary school teacher teaching in a State, means that —

(i) the teacher has obtained full State certification as a teacher (including certification obtained through alternative routes to certification)[.]

20 U.S.C. § 7801(23) (emphasis added). NCLB did not define “full State certification,” but it made clear — whatever “full State certification” meant — that such certification must have been obtained before a teacher could be characterized as “highly qualified.”

[2] The federal regulation, quoted at length above, begins by essentially repeating the pre-Section 163 statutory language. The regulation provides that a “highly qualified teacher” “must . . . have obtained full State certification as a teacher, which may include certification obtained through alternative routes to certification.” 34 C.F.R. § 200.56(a)(1)(i) (emphasis added). It then goes on, however, to provide that an alternative-route teacher is “highly qualified” even if he or she has not obtained “full State certification.” It provides that a teacher “meets the requirements in paragraph (a)(1)” (which include the requirement that “full State certification” have already been obtained), if that teacher “[i]s participating in an alternative route to certification program” and

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5025

“[d]emonstrates satisfactory progress toward full certification as prescribed by the State.” Id. § 200.56(a)(2)(ii) (emphasis added).

In his pre-Section 163 brief to us, the Secretary pointed out that the meaning of “full State certification” in NCLB was ambiguous because it depends to a substantial degree on state law. We agreed that the meaning of “full State certification” in NCLB is ambiguous because it substantially depends on state law. But this ambiguity was irrelevant.

[3] Before the passage of Section 163, the “precise question at issue,” Chevron, 467 U.S. at 842, was not the meaning of “full State certification” as used in NCLB. Rather, the “precise question at issue” was the difference between the meaning of “has obtained” full State certification in the statute, 20 U.S.C. § 7801(23), and the meaning of “demonstrates satisfactory progress toward” full State certification in the regulation, 34 C.F.R. § 200.56(a)(2)(ii). The difference between having obtained something and merely making satisfactory progress toward obtaining it is patent. The panel majority concluded, before the passage of Section 163, that the Secretary’s regulation impermissibly expanded the definition of “highly qualified teacher” contained in 20 U.S.C. § 7801(23) by including in that definition an alternative-route teacher who merely “demonstrates satisfactory progress toward” the requisite “full State certification.” Renee II, 623 F.3d at 796.

[4] We therefore held, before the passage of Section 163, that § 200.56(a)(2)(ii) was invalid because it was inconsistent with the “unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 843. We emphasized that our holding was based on the difference between the meaning of “has obtained” in 20 U.S.C. § 7801(23) and the meaning of “demonstrates satisfactory progress toward” in § 200.56(a)(2)(ii).

3. Article III Standing

The Secretary had not argued in the district court that Appellants lacked standing under Article III. He made that

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argument for the first time on appeal. Lack of Article III standing is a non-waivable jurisdictional defect that may be raised at any time, even on appeal after failing to raise it in the district court. See Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1085 (9th Cir. 2003). We concluded that Appellants had Article III standing.

“[T]he irreducible constitutional minimum of [Article III] standing contains three elements.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); see also DBSI/TRI IV Ltd. P’ship v. United States, 465 F.3d 1031, 1038 (9th Cir. 2006). “First, the plaintiff must have suffered an ‘injury in fact’ ” that is “concrete and particularized” and “actual or imminent.” Lujan, 504 U.S. at 560. “Second, there must be a causal connection between the injury and the conduct complained of,” such that the injury is fairly traceable to the action challenged. Id. “Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. at 561 (internal quotations omitted). We considered these three requirements in turn.

a. Injury in Fact

Appellants are California public school students, their parents, and two non-profit organizations, Californians for Justice (“CFJ”) and California Association of Community Organizations for Reform Now (“California ACORN”). The named students, along with student members of the two organizations, attend California public schools at which significant numbers of intern credential holders serve as teachers. As a result, these students are being taught by interns, have been taught by interns, or are substantially likely to be taught by interns.

Appellants presented evidence in the district court that a disproportionate number of interns teach in California public schools that serve minority and low-income students. For example, forty-one percent of interns in California teach in

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the twenty-five percent of schools with the highest concentrations of minority students. In contrast, two percent of interns in California teach in the ten percent of schools with the lowest concentration of minority students. Interns are similarly concentrated in schools serving low-income communities, with sixty-two percent of interns teaching in the poorest half of California’s schools. This disproportionate distribution of interns, Appellants contended, results in a poorer quality education than Appellants would otherwise have received.

We concluded that Appellants established injury in fact. In adopting NCLB, Congress decided, before the passage of Section 163, that teachers with “full State certification” were, in the aggregate, better teachers than those without such certification. We recognized that it is debatable whether Congress was correct in deciding that teachers with “full State certification” are better than teachers without such certification. This is particularly debatable if intern teachers enrolled in programs such as Teach for America do not have “full State certification.” But that was not for us to decide. We were bound to accept Congress’ pre-Section 163 determination that students taught by a disproportionate number of teachers without “full State certification” had been injured in fact.

b. Causation

We also concluded that there was a causal connection between the promulgation of the federal regulation challenged in this case and the later promulgation of the California regulations. The parties do not dispute that the California regulations were adopted as a result of the challenged federal regulation. To the degree that the federal regulation, and the mimicking California regulations, had the effect of permitting California and its school districts to ignore the fact that a disproportionate number of interns teach in schools in minority and low-income areas, there was a causal connection between the challenged regulation and the injury of which Appellants complain.

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Finally, we concluded that Appellants’ injury was likely to be redressed by invalidation of the federal regulation. “Plaintiffs need not demonstrate that there is a ‘guarantee’ that their injuries will be redressed by a favorable decision.” Graham v. Fed. Emergency Mgmt. Agency, 149 F.3d 997, 1003 (9th Cir. 1998). The plaintiffs’ burden is “relatively modest.” Bennett v. Spear, 520 U.S. 154, 171 (1997). Plaintiffs need only show that there would be a “change in a legal status,” and that a “practical consequence of that change would amount to a significant increase in the likelihood that the plaintiff would obtain relief that directly redresses the injury suffered.” Utah v. Evans, 536 U.S. 452, 464 (2002). If an agency has misinterpreted the law, there is Article III standing “even though the agency . . . might later, in the exercise of its lawful discretion, reach the same result for a different reason.” Fed. Election Comm’n v. Akins, 524 U.S. 11, 25 (1998).

The challenged federal regulation permits a state to treat intern teachers as “highly qualified” under NCLB even if those teachers are not fully certified under state law but are only “demonstrat[ing] satisfactory progress toward full certification.” The 2004 California regulations, mimicking the federal regulation, provide that teachers with “full State certification” under California law, as well as teachers who are currently enrolled in an intern program, are “highly qualified” within the meaning of NCLB. But the California regulations do not change the definition of “full State certification” under California law. Unless intern teachers have “full State certification” under some California law other than these regulations, such teachers were not “highly qualified” for purposes of NCLB, before the passage of Section 163, in the absence of the challenged federal regulation. In other words, California was out of compliance with NCLB if the federal regulation was invalid. The “change in legal status” that would result from the invalidation of the federal regulation significantly increased the likelihood that California would

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take steps to increase the number of teachers with “preliminary” and “clear” credentials in minority and low-income schools in order to comply with NCLB.

The Secretary made two arguments against this conclusion. First, he argued that intern teachers had “full State certification” under California law. The Secretary made the somewhat surprising argument that because California is not a party to this suit we should not interpret California law ourselves, but rather should defer to the Secretary’s interpretation. As the Secretary surely knew, we routinely interpret California law in cases in which California is not a party. And while we defer to the Secretary’s interpretation of federal law under Chevron, we owe no deference to his interpretation of state law.

It was reasonably clear that intern teachers did not have “full State certification” under California law. California’s Education Code distinguishes between holders of intern credentials and holders of preliminary and clear credentials in several ways. For example, § 44300(a)(1)(A) of the Education Code, which governs the hiring of permit holders, requires school districts to document recruitment efforts to hire “certificated teachers, including teacher candidates pursuing full certification through internship, district internship, or other alternative routes.” (Emphasis added.) That is, while interns are “certificated teachers,” they are merely “pursuing full certification.” Cal. Educ. Code § 44300(a)(1)(A); see also id. § 44225.7(a) (indicating that interns are not “fully prepared” teachers); Bakersfield Elementary Teachers Ass’n v. Bakersfield City Sch. Dist., 145 Cal. App. 4th 1260, 1277 (Cal. Ct. App. 2006) (referring to credentials other than clear and preliminary as less than “regular”).

The 2004 mimicking California regulations similarly distinguish between intern teachers and fully credentialed teachers. Under the California regulation applicable to middle and secondary schools, a teacher is deemed to “meet the requirements

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of NCLB” under two circumstances. One is that the teacher be “currently enrolled in an approved intern program.” The other is that the teacher have “a full credential.” Cal. Code Regs. tit. 5, § 6110(2). Thus, as recently as 2004, California confirmed that intern credential holders are not fully certified under the current state credentialing system.

Second, the Secretary argued that if the federal regulation is held invalid, California would almost certainly change its credentialing laws to provide that the holder of an intern credential is fully certified under California law. We disagreed. As just discussed, California’s Education Code indicates that holders of “preliminary” and “clear” credentials have “full certification” under state law, but that interns do not. After the passage of NCLB, California made no attempt to change its law to provide that teachers with intern credentials are fully credentialed under California law. Both before and after the promulgation of the challenged federal regulation, California law characterized intern teachers as not having full credentials. The Secretary pointed to no evidence indicating that, in the event the federal regulation were held invalid, California would change its credentialing law in a manner it had thus far not seen fit to do. Nor, indeed, has the Secretary attempted to argue that, in the wake of our opinion in Renee II, California has changed its credentialing law.

Finally, our dissenting colleague made an argument not made by the Secretary. He argued that even if the federal regulation were struck down, and even if intern teachers in California were not “highly qualified” within the meaning of NCLB, there is nothing in NCLB that empowers the Secretary to withhold funds as a means of compelling a state to adopt a specific system of teacher credentialing. In our view, that was not the issue. The issue, rather, was whether the Secretary has the authority to withhold funds when a State fails to take steps to ensure that students in minority and low-income schools are not taught disproportionately by teachers without

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“full State certification” as the state defined “full certification.”

It is undisputed that NCLB gives the State great flexibility in deciding which teachers are fully certified under state law, and that the Secretary cannot compel a State to adopt any specific credentialing system. That is, a state is free to define “full certification” in almost any way it chooses. But having defined full certification under state law, a state is required to take steps to ensure that fully certified teachers are proportionately represented in the teaching staffs of minority and low-income schools. It is undisputed that the Secretary has authority to withhold funds if a state does not take steps to comply with NCLB. See 20 U.S.C. § 1234c (Secretary may withhold funds if a recipient “is failing to comply substantially with any requirement of law applicable to such funds”); id. § 6311(b)(8)(C), (g)(2) (Secretary may withhold funds if the State has not submitted a plan describing “specific steps the State educational agency will take to ensure that both schoolwide programs and targeted assistance schools provide instruction by highly qualified instructional staff”).

The Secretary is not required to withhold funds if a state fails to take steps to comply with NCLB. The statute provides that he “may” do so rather than that he “must” do so. Id. §§ 1234c, 6311(g)(2). But the possibility of the Secretary withholding funds was an obvious incentive for a State to comply with NCLB. Further, even if the Secretary did not withhold funds, we were unwilling to assume that California is a scofflaw state. That is, we were unwilling to assume that California would refuse to take steps to come into compliance with NCLB, as it existed prior to the passage of Section 163, in the absence of such compulsion.

B. After Passage of Section 163

1. Effect of Section 163

[5] Section 163 has temporarily modified NCLB. It provides that the term “highly qualified teacher” in NCLB

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includes a teacher who meets the requirements of 34 C.F.R. § 200.56(a)(2)(ii). Section 163 thus provides that an alternative-route teacher who merely “demonstrates satisfactory progress toward full certification” is “highly qualified” within the meaning of NCLB. Under Section 163, § 200.56(a)(2)(ii) is consistent with NCLB and is therefore valid. That is, so long as Section 163 remains in effect, it overrules our decision in Renee II.

[6] However, by its own terms, Section 163 remains in effect only through the end of the 2012-13 school year. If Congress takes no further action, the pre-Section 163 version of NCLB will again be the law. In that event, § 200.56(a)(2)(ii) will again be invalid because its definition of “highly qualified teacher” will again be inconsistent with the statutory definition.

2. Mootness

Neither side has contended that Congress’s enactment of Section 163 has mooted the appeal. However, we have an independent obligation to ensure that a case is not moot within the meaning of Article III. See Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092, 1098 (9th Cir. 2000). Article III mandates that “there be a live case or controversy” when a federal court decides a dispute. Burke v. Barnes, 479 U.S. 361, 363 (1987). A case can be moot when a challenged statute or regulation “is repealed, expires, or is amended to remove the challenged language.” Log Cabin Republicans v. United States, 658 F.3d 1162, 1166 (9th Cir. 2011) (per curiam).

[7] We conclude that the passage of Section 163 does not moot this appeal. Section 163 is, by its express terms, temporary. It took effect in December 2010, on the date of enactment, and it will expire after the 2012-13 academic year. Absent further congressional action, 34 C.F.R. § 200.56(a)(2)(ii) will again conflict with NCLB’s definition

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of a “highly qualified teacher.” See Renee II, 623 F.3d at 796. The Supreme Court has repeatedly held that a temporary halt to unlawful action does not moot a claim for injunctive relief. City of Los Angeles v. Lyons, 461 U.S. 95, 101 & n.4 (1983) (“[T]he case is not moot, since the moratorium by its terms is not permanent. Intervening events have not irrevocably eradicated the effects of the alleged violation.” (citation and quotations omitted)); Bullock v. Carter, 405 U.S. 134, 141 n.17 (1972) (holding that temporary repeal of challenged statute does not moot case); see also Ballen v. City of Redmond, 466 F.3d 736, 741 (9th Cir. 2006) (same). Based on these holdings, we conclude that the temporary characterization of alternative route teachers defined in § 200.56(a)(2)(ii) as “highly qualified teachers” within the meaning of NCLB does not moot the appeal.

3. Compliance with pre-Section 163 Reporting Requirements

[8] NCLB requires the Secretary to file an annual report to Congress in which the Secretary presents national and statelevel data on compliance with NCLB goals. See 20 U.S.C. § 6311(h)(5). In their complaint, Appellants ask that the Secretary be enjoined to amend the reports previously submitted to Congress, in which he characterized alternative route teachers as “highly qualified.” Appellants ask that the Secretary be enjoined from characterizing alternative route interns defined by § 200.56(a)(2)(ii) as “highly qualified teachers” in his 2005-2006 report to Congress on that academic year. Appellants also ask that the Secretary be enjoined to “notify” Congress that his 2002-2003 report relied on the unlawful definition of “highly qualified teachers” contained in § 200.56(a)(2)(ii).

[9] In Guerrero v. Clinton, 157 F.3d 1190 (9th Cir. 1998), we held that a federal court could not redress an injury based on an allegedly inadequate report that an agency is obligated to file with Congress. Id. at 1194. At issue in Guerrero was

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a requirement that the President “report annually” to Congress on the impact of a compact with federal territories and the State of Hawaii. Id. at 1191. We described the report as “purely informational.” Id. at 1195. We concluded,

In sum, no legal consequences flow from [the] report and it has no “determinative or coercive effect upon the action of someone else” that in turn produced the [plaintiffs’] injury . . . . By the same token, the report is not agency action of the sort that is typically subject to judicial review. Because it triggers no legal consequences and determines no rights or obligations, no check on the substance of the report is necessary. Having requested the report, Congress, not the judiciary, is in the best position to decide whether it’s gotten what it wants.

Id. at 1195 (internal citations omitted) (quoting Bennet v. Spear, 520 U.S. 154 (1997)).

[10] As in Guerrero, the reporting requirement of NCLB that Appellants seek to enforce is “purely informational.” The provision at issue, § 6311(h)(5), states, “The Secretary shall transmit annually to [two Committees of Congress] a report that provides national and State-level data on the information collected under paragraph (4).” 20 U.S.C. § 6311(h)(5). “Paragraph (4),” in turn, contains a requirement that the states report on seven specific metrics of academic success annually to the Secretary. 20 U.S.C. § 6311(h)(4). This reporting requirement is of the same character as the requirement in Guerrero. See 157 F.3d at 1191-92 n.4 (stating requirement that “the President shall report to the Congress with respect to the impact of” the compact on territorial governments and Hawai’i). Nothing in NCLB provides that the Secretary’s reports to Congress have any legal consequences. As in Guerrero, we hold that Appellants’ request for injunctive relief with respect to these reports was properly denied (though on a different basis) by the district court.

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[11] Appellants seek attorney’s fees under the Equal Access to Justice Act (EAJA). That statute provides: “[A] court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action . . . brought by or against the United States . . . unless the court finds that the position of the United States was substantially justified.” 28 U.S.C. § 2412(d)(1)(A); see also Pierce v. Underwood, 487 U.S. 552, 559-63 (1988).

[12] We have interpreted the term “substantial justification” as “describ[ing] a position that has a reasonable basis both in law and fact.” Timms v. United States, 742 F.2d 489, 492 (9th Cir. 1984). That the Secretary did not prevail on the positions he has taken does not invoke a presumption that he was not substantially justified. Id. Assuming without deciding that Appellants qualify as a “prevailing party” under the EAJA, we conclude that the Secretary’s position was substantially justified.

[13] We have issued two previous opinions in this case. In the first opinion, a split panel of this court agreed with the Secretary’s position that Appellants lack standing. Renee I, 573 F.3d at 905. We reversed our position on the standing issue, Renee II, 623 F.3d at 80, but one of us continued to agree with the Secretary’s position on standing, id. (Tallman, J., dissenting). On the merits, the district judge had agreed with the Secretary’s position, holding that the challenged regulation was consistent with the definition of “highly qualified teachers” contained in NCLB. Given the substantial disagreement among federal judges on the Secretary’s contentions, Appellants face the daunting task of arguing that the Secretary’s position lacked a reasonable basis in law and fact.

[14] NCLB affords the Secretary substantial discretion in determining certain matters of policy. The Secretary contended throughout this litigation that the term “highly quali-

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fied teacher” is sufficiently ambiguous so as to encompass alternative route interns defined by § 200.56(a)(2)(ii). In so doing, he advanced a “novel but credible extension or interpretation of the law.” Timms, 742 F.2d at 492 (internal quotation marks omitted). He pursued his position without the guidance from any federal court on the meaning of the statutory phrase “highly qualified teachers.” See Armster v. U.S. Dist. Ct. for Cent. Dist. of Cal., 817 F.2d 480, 483-84 (9th Cir. 1987) (considering litigating position as substantially justified “especially since there was no case law directly to the contrary”). Given the Secretary’s task and the divergent views of federal judges, it was reasonable for the Secretary to test the validity of the regulation “in the absence of any precedent on the question.” Foster v. Tourtelotte, 704 F.2d 1109, 1112 (9th Cir. 1983) (per curiam).

[15] We therefore deny Appellants’ motion for attorneys’ fees under the EAJA.

Conclusion

For the foregoing reasons, we reaffirm our decision in Renee II that 34 C.F.R. § 200.56(a)(2)(ii) is inconsistent with NCLB as it existed before the passage of Section 163. That Section prospectively overruled Renee II. So long as Section 163 remains in effect § 200.56(a)(2)(ii) is valid. However, if Congress does nothing, Section 163 will expire at the end of the 2012-13 academic year. In that event, our opinion in Renee II will again control.

AFFIRMED.

TALLMAN, Circuit Judge, dissenting in part and concurring in part:
I concur in the judgment and parts III.B.1—2—that the appeal is not moot—and III.B.4—that appellants are not enti-

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tled to attorney’s fees. I continue to believe that the appellants lack standing to bring this suit, Renee II, 623 F.3d at 800-807, and would dismiss this appeal for the reasons I previously explained.

I agree that if we were to reach the merits, the passage of § 163 did not make this appeal moot. However, the majority’s detailed discussion of § 163 is extraneous dicta. Section 163 explicitly modifies NCLB to include the definition for “highly qualified teacher” contained in 34 C.F.R. § 200.56(a)(2)(ii). Because the regulation can no longer violate NCLB, it is unnecessary for the majority to address in this opinion whether—prior to the enactment of § 163—the challenged regulation violated NCLB.

Any discussion about the pre-§ 163 regulation is largely immaterial to the issue now before us because it depends upon a prediction of what Congress may do in 2013. What Congress has done is “prospectively overrule[ ] Renee II.” Op. at 5036. Under the law of the case doctrine it appears that should Congress fail to act by 2013 the majority’s opinion in Renee II would control. Given enactment of § 163, however, the discussion of whether the regulation violated NCLB pre-§ 163 becomes wholly irrelevant. I therefore do not join that part of the majority’s opinion.

Case: 08-16661, 05/10/2012, ID: 8172595, DktEntry: 107-2, Page 1 of 5

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Case: 08-16661, 05/10/2012, ID: 8172595, DktEntry: 107-2, Page 4 of 5 Form 10. Bill of Costs ................................................................................................................................(Rev. 12-1-09)

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Case: 08-16661, 05/10/2012, ID: 8172595, DktEntry: 107-2, Page 5 of 5 Form 10. Bill of Costs - Continued

I,

, swear under penalty of perjury that the services for which costs are taxed

were actually and necessarily performed, and that the requested costs were actually expended as listed.

Signature ("s/" plus attorney's name if submitted electronically) Date
Name of Counsel:

Attorney for:

(To Be Completed by the Clerk) Date

Costs are taxed in the amount of $ Clerk of Court By:

, Deputy Clerk

 
 Case: 4:07-cv-4299 As of: 06/28/2013 01:02 PM PDT 1 of 19
ADRMOP,CLOSED,E−Filing
U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:07−cv−04299−PJH

Renee et al v. Spellings et al Assigned to: Hon. Phyllis J. Hamilton Case in other court: USCA, 9th Circuit, 08−16661 Cause: 05:551 Administrative Procedure Act
Plaintiff

Date Filed: 08/21/2007 Date Terminated: 07/02/2008 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

Sonya Renee

represented by John Thomas Affeldt Public Advocates, Inc. 131 Steuart Street Suite 300 San Francisco, CA 94105 415−431−7430 Fax: 415−431−1048 Email: jaffeldt@publicadvocates.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

David B. Cook Goodwin Procter LLP 901 New York Avenue NW Washington, DC 20001 202−346−4000 Fax: 202−346−4444 Email: dcook@goodwinprocter.com ATTORNEY TO BE NOTICED

Elizabeth Frances Stone Goodwin Procter LLP 101 California Street Suite 1850 San Franicsco, CA 94111 415−733−6054 Fax: 415−677−9041 Email: estone@goodwinprocter.com ATTORNEY TO BE NOTICED

Jeffrey A Simes Goodwin Procter LLP 599 Lexington Avenue New York, NY 10022 212−813−8879 Fax: 212−355−3333 Email: jsimes@goodwinprocter.com ATTORNEY TO BE NOTICED

Jenny Pearlman Public Advocates, Inc. 131 Steuart Street Suite 300 San Francisco, CA 94105 415−431−7430 Fax: 415−431−1048 Email: jpearlman@publicadvocates.org ATTORNEY TO BE NOTICED

Nicole Elise Giacinti

Case: 4:07-cv-4299 As of: 06/28/2013 01:02 PM PDT 2 of 19

Morris &Giacinti LLP 899 Ellis Street San Francisco, CA 94109 415−553−3902 Fax: 415−848−9130 Email: nicolegiacinti@gmail.com ATTORNEY TO BE NOTICED

Patrick Shaun Thompson Goodwin Procter LLP 101 California Street Suite 1850 San Francisco, CA 94111 415−733−6000 Fax: 415−677−9041 Email: pthompson@goodwinprocter.com ATTORNEY TO BE NOTICED

Tara Elizabeth Kini Public Advocates, Inc. 131 Steuart Street Suite 300 San Francisco, CA 94105 415−431−7430 Fax: 415−431−1048 Email: tkini@publicadvocates.org ATTORNEY TO BE NOTICED

Plaintiff
Candice Johnson a minor, by Sonia Renee, her guardian ad litem

represented by John Thomas Affeldt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David B. Cook (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Frances Stone (See above for address) ATTORNEY TO BE NOTICED

Jeffrey A Simes (See above for address) ATTORNEY TO BE NOTICED

Jenny Pearlman (See above for address) ATTORNEY TO BE NOTICED

Nicole Elise Giacinti (See above for address) ATTORNEY TO BE NOTICED

Patrick Shaun Thompson (See above for address) ATTORNEY TO BE NOTICED

Tara Elizabeth Kini (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Maribel Heredia

represented by

Case: 4:07-cv-4299 As of: 06/28/2013 01:02 PM PDT 3 of 19

John Thomas Affeldt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David B. Cook (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Frances Stone (See above for address) ATTORNEY TO BE NOTICED

Jeffrey A Simes (See above for address) ATTORNEY TO BE NOTICED

Jenny Pearlman (See above for address) ATTORNEY TO BE NOTICED

Nicole Elise Giacinti (See above for address) ATTORNEY TO BE NOTICED

Patrick Shaun Thompson (See above for address) ATTORNEY TO BE NOTICED

Tara Elizabeth Kini (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Jose Aldana a minor, by Maribel Heredia, his guardian ad litem

represented by John Thomas Affeldt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David B. Cook (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Frances Stone (See above for address) ATTORNEY TO BE NOTICED

Jeffrey A Simes (See above for address) ATTORNEY TO BE NOTICED

Jenny Pearlman (See above for address) ATTORNEY TO BE NOTICED

Nicole Elise Giacinti (See above for address) ATTORNEY TO BE NOTICED

Patrick Shaun Thompson (See above for address) ATTORNEY TO BE NOTICED

Tara Elizabeth Kini

Case: 4:07-cv-4299 As of: 06/28/2013 01:02 PM PDT 4 of 19

(See above for address) ATTORNEY TO BE NOTICED

Plaintiff Mariel Rubio

represented by John Thomas Affeldt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David B. Cook (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Frances Stone (See above for address) ATTORNEY TO BE NOTICED

Jeffrey A Simes (See above for address) ATTORNEY TO BE NOTICED

Jenny Pearlman (See above for address) ATTORNEY TO BE NOTICED

Nicole Elise Giacinti (See above for address) ATTORNEY TO BE NOTICED

Patrick Shaun Thompson (See above for address) ATTORNEY TO BE NOTICED

Tara Elizabeth Kini (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Danielle Rubio a minor, by Mariel Rubio, her guardian ad litem

represented by John Thomas Affeldt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David B. Cook (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Frances Stone (See above for address) ATTORNEY TO BE NOTICED

Jeffrey A Simes (See above for address) ATTORNEY TO BE NOTICED

Jenny Pearlman (See above for address) ATTORNEY TO BE NOTICED

Nicole Elise Giacinti (See above for address) ATTORNEY TO BE NOTICED

Patrick Shaun Thompson

Case: 4:07-cv-4299 As of: 06/28/2013 01:02 PM PDT 5 of 19

(See above for address) ATTORNEY TO BE NOTICED

Tara Elizabeth Kini (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Guadalupe Gonzalez

represented by John Thomas Affeldt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David B. Cook (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Frances Stone (See above for address) ATTORNEY TO BE NOTICED

Jeffrey A Simes (See above for address) ATTORNEY TO BE NOTICED

Jenny Pearlman (See above for address) ATTORNEY TO BE NOTICED

Nicole Elise Giacinti (See above for address) ATTORNEY TO BE NOTICED

Patrick Shaun Thompson (See above for address) ATTORNEY TO BE NOTICED

Tara Elizabeth Kini (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Daisy Gonzalez a minor, by Guadalupe Gonzalez, her guardian ad litem

represented by John Thomas Affeldt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David B. Cook (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Frances Stone (See above for address) ATTORNEY TO BE NOTICED

Jeffrey A Simes (See above for address) ATTORNEY TO BE NOTICED

Jenny Pearlman (See above for address) ATTORNEY TO BE NOTICED

Nicole Elise Giacinti

Case: 4:07-cv-4299 As of: 06/28/2013 01:02 PM PDT 6 of 19

(See above for address) ATTORNEY TO BE NOTICED

Patrick Shaun Thompson (See above for address) ATTORNEY TO BE NOTICED

Tara Elizabeth Kini (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Jazmine Johnson a minor, by Deanna Bolden, her guardian ad litem

represented by John Thomas Affeldt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David B. Cook (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Frances Stone (See above for address) ATTORNEY TO BE NOTICED

Jeffrey A Simes (See above for address) ATTORNEY TO BE NOTICED

Jenny Pearlman (See above for address) ATTORNEY TO BE NOTICED

Nicole Elise Giacinti (See above for address) ATTORNEY TO BE NOTICED

Patrick Shaun Thompson (See above for address) ATTORNEY TO BE NOTICED

Tara Elizabeth Kini (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Adriana Ramirez a minor, by Arcelia Trinidad Ramirez, her guardian ad litem

represented by John Thomas Affeldt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David B. Cook (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Frances Stone (See above for address) ATTORNEY TO BE NOTICED

Jeffrey A Simes (See above for address) ATTORNEY TO BE NOTICED

Jenny Pearlman

Case: 4:07-cv-4299 As of: 06/28/2013 01:02 PM PDT 7 of 19

(See above for address) ATTORNEY TO BE NOTICED

Nicole Elise Giacinti (See above for address) ATTORNEY TO BE NOTICED

Patrick Shaun Thompson (See above for address) ATTORNEY TO BE NOTICED

Tara Elizabeth Kini (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Jane Doe a minor, by John Doe, her guardian ad litem

represented by John Thomas Affeldt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David B. Cook (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Frances Stone (See above for address) ATTORNEY TO BE NOTICED

Jeffrey A Simes (See above for address) ATTORNEY TO BE NOTICED

Jenny Pearlman (See above for address) ATTORNEY TO BE NOTICED

Nicole Elise Giacinti (See above for address) ATTORNEY TO BE NOTICED

Patrick Shaun Thompson (See above for address) ATTORNEY TO BE NOTICED

Tara Elizabeth Kini (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Californians For Justice Education Fund

represented by John Thomas Affeldt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David B. Cook (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Frances Stone (See above for address) ATTORNEY TO BE NOTICED

Jeffrey A Simes

Case: 4:07-cv-4299 As of: 06/28/2013 01:02 PM PDT 8 of 19

(See above for address) ATTORNEY TO BE NOTICED

Jenny Pearlman (See above for address) ATTORNEY TO BE NOTICED

Nicole Elise Giacinti (See above for address) ATTORNEY TO BE NOTICED

Patrick Shaun Thompson (See above for address) ATTORNEY TO BE NOTICED

Tara Elizabeth Kini (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
California Association of Community Organizations for Reform Now

represented by John Thomas Affeldt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David B. Cook (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Frances Stone (See above for address) ATTORNEY TO BE NOTICED

Jeffrey A Simes (See above for address) ATTORNEY TO BE NOTICED

Jenny Pearlman (See above for address) ATTORNEY TO BE NOTICED

Nicole Elise Giacinti (See above for address) ATTORNEY TO BE NOTICED

Patrick Shaun Thompson (See above for address) ATTORNEY TO BE NOTICED

Tara Elizabeth Kini (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Margaret Spellings in her official capacity

represented by Michael Quenten Hyde U.S. Department of Justice 20 Massachusetts Ave. NW Room 7132 Washington, DC 20001 202−514−2205 Email: michael.hyde@usdoj.gov

Case: 4:07-cv-4299 As of: 06/28/2013 01:02 PM PDT 9 of 19

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant United States Department of Eudcation

represented by Michael Quenten Hyde (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Teach For America

represented by Donald B. Verrilli , Jr. Jenner &Block LLC 1099 New York Avenue, NW Suite 900 Washington, DC 20001−4412 202−639−6095 Fax: 202−639−6066 Email: dverrilli@jenner.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 08/21/2007
08/21/2007 08/21/2007 08/21/2007 08/21/2007 08/21/2007

# Docket Text
1 COMPLAINT; summons issued against Margaret Spellings, United States Department of Eudcation (Filing fee $ 350, receipt number 34611009643). Filed by Jazmine Johnson, Adriana Ramirez, Jane Doe, Californians For Justice Education Fund, California Association of Community Organizations for Reform Now, Sonya Renee, Candice Johnson, Maribel Heredia, Jose Aldana, Mariel Rubio, Danielle Rubio, Guadalupe Gonzalez, Daisy Gonzalez. (slh, COURT STAFF) (Filed on 8/21/2007) Additional attachment(s) added on 10/19/2007 (sv, COURT STAFF). (Entered: 08/22/2007)
2 Certificate of Interested Parties by David B. Cook, Elizabeth Frances Stone, Nicole Elise Perroton, Patrick Shaun Thompson, Jeffrey Simes. (slh, COURT STAFF) (Filed on 8/21/2007) Additional attachment(s) added on 10/19/2007 (sv, COURT STAFF). (Entered: 08/22/2007)
3 MOTION to Appoint Guadalupe Gonzalez as Guardian ad Litem filed by Jazmine Johnson, Adriana Ramirez, Jane Doe, Californians For Justice Education Fund, California Association of Community Organizations for Reform Now, Sonya Renee, Candice Johnson, Maribel Heredia, Jose Aldana, Mariel Rubio, Danielle Rubio, Guadalupe Gonzalez, Daisy Gonzalez. (slh, COURT STAFF) (Filed on 8/21/2007) Additional attachment(s) added on 10/19/2007 (sv, COURT STAFF). (Entered: 08/22/2007)
4 MOTION to Appoint Sonya Renee as Guardian ad Litem filed by Jazmine Johnson, Adriana Ramirez, Jane Doe, Californians For Justice Education Fund, California Association of Community Organizations for Reform Now, Sonya Renee, Candice Johnson, Maribel Heredia, Jose Aldana, Mariel Rubio, Danielle Rubio, Guadalupe Gonzalez, Daisy Gonzalez. (slh, COURT STAFF) (Filed on 8/21/2007) Additional attachment(s) added on 10/19/2007 (sv, COURT STAFF). (Entered: 08/22/2007)
5 MOTION to Appoint Mariel Rubio as Guardian ad Litem filed by Jazmine Johnson, Adriana Ramirez, Jane Doe, Californians For Justice Education Fund, California Association of Community Organizations for Reform Now, Sonya Renee, Candice Johnson, Maribel Heredia, Jose Aldana, Mariel Rubio, Danielle Rubio, Guadalupe Gonzalez, Daisy Gonzalez. (slh, COURT STAFF) (Filed on 8/21/2007) Additional attachment(s) added on 10/19/2007 (sv, COURT STAFF). (Entered: 08/22/2007)
6 MOTION to Appoint Maribel Heredia as Guardian ad Litem filed by Jazmine Johnson, Adriana Ramirez, Jane Doe, Californians For Justice Education Fund,

Case: 4:07-cv-4299 As of: 06/28/2013 01:02 PM PDT 10 of 19

08/21/2007 08/21/2007 08/21/2007 08/21/2007 08/21/2007 08/21/2007 08/21/2007

California Association of Community Organizations for Reform Now, Sonya Renee, Candice Johnson, Maribel Heredia, Jose Aldana, Mariel Rubio, Danielle Rubio, Guadalupe Gonzalez, Daisy Gonzalez. (slh, COURT STAFF) (Filed on 8/21/2007) Additional attachment(s) added on 10/19/2007 (sv, COURT STAFF). (Entered: 08/22/2007)
7 MOTION to Appoint Arcelia Ramirez as Guardian ad Litem filed by Jazmine Johnson, Adriana Ramirez, Jane Doe, Californians For Justice Education Fund, California Association of Community Organizations for Reform Now, Sonya Renee, Candice Johnson, Maribel Heredia, Jose Aldana, Mariel Rubio, Danielle Rubio, Guadalupe Gonzalez, Daisy Gonzalez. (slh, COURT STAFF) (Filed on 8/21/2007) Additional attachment(s) added on 10/19/2007 (sv, COURT STAFF). (Entered: 08/22/2007)
8 MOTION to Appoint Deanna Bolden as Guardian ad Litem filed by Jazmine Johnson, Adriana Ramirez, Jane Doe, Californians For Justice Education Fund, California Association of Community Organizations for Reform Now, Sonya Renee, Candice Johnson, Maribel Heredia, Jose Aldana, Mariel Rubio, Danielle Rubio, Guadalupe Gonzalez, Daisy Gonzalez. (slh, COURT STAFF) (Filed on 8/21/2007) Additional attachment(s) added on 10/19/2007 (sv, COURT STAFF). (Entered: 08/22/2007)
9 MOTION to Appoint John Doe as Guardian ad Litem filed by Jazmine Johnson, Adriana Ramirez, Jane Doe, Californians For Justice Education Fund, California Association of Community Organizations for Reform Now, Sonya Renee, Candice Johnson, Maribel Heredia, Jose Aldana, Mariel Rubio, Danielle Rubio, Guadalupe Gonzalez, Daisy Gonzalez. (slh, COURT STAFF) (Filed on 8/21/2007) Additional attachment(s) added on 10/19/2007 (sv, COURT STAFF). (Entered: 08/22/2007)
10 Ex Parte Motion for Leave to Proceed Anonymously and to Submit Plaintiff's Declaration Under Seal filed by Jazmine Johnson, Adriana Ramirez, Jane Doe, Californians For Justice Education Fund, California Association of Community Organizations for Reform Now, Sonya Renee, Candice Johnson, Maribel Heredia, Jose Aldana, Mariel Rubio, Danielle Rubio, Guadalupe Gonzalez, Daisy Gonzalez. (slh, COURT STAFF) (Filed on 8/21/2007) Additional attachment(s) added on 10/19/2007 (sv, COURT STAFF). (Entered: 08/22/2007)
11 MEMORANDUM OF POINTS AND AUTHORITIES in Support re 10 Ex Parte Application filed by Jazmine Johnson, Adriana Ramirez, Jane Doe, Californians For Justice Education Fund, California Association of Community Organizations for Reform Now, Sonya Renee, Candice Johnson, Maribel Heredia, Jose Aldana, Mariel Rubio, Danielle Rubio, Guadalupe Gonzalez, Daisy Gonzalez. (Related document(s) 10 ) (slh, COURT STAFF) (Filed on 8/21/2007) Additional attachment(s) added on 10/19/2007 (sv, COURT STAFF). (Entered: 08/22/2007)
12 Declaration of Tara Kini in Support of 10 Ex Parte Application filed by Jazmine Johnson, Adriana Ramirez, Jane Doe, Californians For Justice Education Fund, California Association of Community Organizations for Reform Now, Sonya Renee, Candice Johnson, Maribel Heredia, Jose Aldana, Mariel Rubio, Danielle Rubio, Guadalupe Gonzalez, Daisy Gonzalez. (Related document(s) 10 ) (slh, COURT STAFF) (Filed on 8/21/2007) Additional attachment(s) added on 10/19/2007 (sv, COURT STAFF). (Entered: 08/22/2007)
13 CERTIFICATE OF SERVICE by Jazmine Johnson, Adriana Ramirez, Jane Doe, Californians For Justice Education Fund, California Association of Community Organizations for Reform Now, Sonya Renee, Candice Johnson, Maribel Heredia, Jose Aldana, Mariel Rubio, Danielle Rubio, Guadalupe Gonzalez, Daisy Gonzalez re 6 MOTION to Appoint Guardian ad Litem, 7 MOTION to Appoint Guardian ad Litem, 8 MOTION to Appoint Guardian ad Litem, 1 Complaint, 3 MOTION to Appoint Guardian ad Litem, 4 MOTION to Appoint Guardian ad Litem, 2 Certificate of Interested Entities, 5 MOTION to Appoint Guardian ad Litem, 9 MOTION to Appoint Guardian ad Litem (slh, COURT STAFF) (Filed on 8/21/2007) Additional attachment(s) added on 10/19/2007 (sv, COURT STAFF). (Entered: 08/22/2007)

Case: 4:07-cv-4299 As of: 06/28/2013 01:02 PM PDT 11 of 19

08/21/2007 08/21/2007 08/21/2007
08/21/2007
08/24/2007 08/24/2007 08/28/2007

14 ADR SCHEDULING ORDER: Case Management Statement due by 11/21/2007. Case Management Conference set for 11/28/2007 01:30 PM. (Attachments: # 1 EMC Standing Order; # 2 Case Management Standing Order)(slh, COURT STAFF) (Filed on 8/21/2007) (Entered: 08/22/2007)
CASE DESIGNATED for Electronic Filing. (slh, COURT STAFF) (Filed on 8/21/2007) (Entered: 08/22/2007)
15 MOTION of Jeffrey A. Simes for leave to appear in Pro Hac Vice (Filing fee $ 210, receipt number 34611009679) filed by Jazmine Johnson, Adriana Ramirez, Jane Doe, Californians For Justice Education Fund, California Association of Community Organizations for Reform Now, Sonya Renee, Candice Johnson, Maribel Heredia, Jose Aldana, Mariel Rubio, Danielle Rubio, Guadalupe Gonzalez, Daisy Gonzalez. (slh, COURT STAFF) (Filed on 8/21/2007) Additional attachment(s) added on 10/19/2007 (sv, COURT STAFF). (Entered: 08/23/2007)
16 MOTION of David B. Cook for leave to appear in Pro Hac Vice (Filing fee $ 210, receipt number 34611009679) filed by Jazmine Johnson, Adriana Ramirez, Jane Doe, Californians For Justice Education Fund, California Association of Community Organizations for Reform Now, Sonya Renee, Candice Johnson, Maribel Heredia, Jose Aldana, Mariel Rubio, Danielle Rubio, Guadalupe Gonzalez, Daisy Gonzalez. (slh, COURT STAFF) (Filed on 8/21/2007) Additional attachment(s) added on 10/19/2007 (sv, COURT STAFF). (Entered: 08/23/2007)
17 ORDER GRANTING APPLICATION FOR ADMISSION OF ATTORNEY PRO HAC VICE FOR JEFFREY SIMES. Signed by Judge Edward M. Chen on 8/24/07. (bpf, COURT STAFF) (Filed on 8/24/2007) (Entered: 08/24/2007)
18 ORDER GRANTING APPLICATION FOR ADMISSION OF ATTORNEY PRO HAC VICE FOR DAVID COOK. Signed by Judge Edward M. Chen on 8/24/07. (bpf, COURT STAFF) (Filed on 8/24/2007) (Entered: 08/24/2007)
19 ORDER re 6 MOTION to Appoint Guardian ad Litem filed by Daisy Gonzalez, Jazmine Johnson, Adriana Ramirez, Jose Aldana, Jane Doe, Danielle Rubio, California Association of Community Organizations for Reform Now, Californians For Justice Education Fund, Mariel Rubio, Candice Johnson, Guadalupe Gonzalez, Sonya Renee, Maribel Heredia, 7 MOTION to Appoint Guardian ad Litem filed by Daisy Gonzalez, Jazmine Johnson, Adriana Ramirez, Jose Aldana, Jane Doe, Danielle Rubio, California Association of Community Organizations for Reform Now, Californians For Justice Education Fund, Mariel Rubio, Guadalupe Gonzalez, Candice Johnson, Maribel Heredia, Sonya Renee, 8 MOTION to Appoint Guardian ad Litem filed by Daisy Gonzalez, Jazmine Johnson, Adriana Ramirez, Jose Aldana, Jane Doe, Danielle Rubio, California Association of Community Organizations for Reform Now, Californians For Justice Education Fund, Mariel Rubio, Guadalupe Gonzalez, Candice Johnson, Maribel Heredia, Sonya Renee, 3 MOTION to Appoint Guardian ad Litem filed by Daisy Gonzalez, Jazmine Johnson, Adriana Ramirez, Jose Aldana, Jane Doe, Danielle Rubio, California Association of Community Organizations for Reform Now, Californians For Justice Education Fund, Mariel Rubio, Guadalupe Gonzalez, Candice Johnson, Maribel Heredia, Sonya Renee, 4 MOTION to Appoint Guardian ad Litem filed by Daisy Gonzalez, Jazmine Johnson, Adriana Ramirez, Jose Aldana, Jane Doe, Danielle Rubio, California Association of Community Organizations for Reform Now, Californians For Justice Education Fund, Mariel Rubio, Guadalupe Gonzalez, Candice Johnson, Maribel Heredia, Sonya Renee, 5 MOTION to Appoint Guardian ad Litem filed by Daisy Gonzalez, Jazmine Johnson, Adriana Ramirez, Jose Aldana, Jane Doe, Danielle Rubio, California Association of Community Organizations for Reform Now, Californians For Justice Education Fund, Mariel Rubio, Guadalupe Gonzalez, Candice Johnson, Maribel Heredia, Sonya Renee, 9 MOTION to Appoint Guardian ad Litem filed by Daisy Gonzalez, Jazmine Johnson, Adriana Ramirez, Jose Aldana, Jane Doe, Danielle Rubio, California Association of Community Organizations for Reform Now, Californians For Justice Education Fund, Mariel Rubio, Guadalupe Gonzalez, Candice Johnson, Maribel Heredia, Sonya Renee. Signed by Judge Edward M. Chen on 8/28/07. (bpf, COURT STAFF) (Filed on 8/28/2007) (Entered: 08/28/2007)

Case: 4:07-cv-4299 As of: 06/28/2013 01:02 PM PDT 12 of 19

10/02/2007 10/18/2007 10/18/2007 10/18/2007 10/22/2007 10/23/2007 10/25/2007 10/25/2007 10/31/2007 11/15/2007 11/19/2007 11/27/2007
11/27/2007

20 CERTIFICATE OF SERVICE by Jazmine Johnson, Adriana Ramirez, Jane Doe, Californians For Justice Education Fund, California Association of Community Organizations for Reform Now, Sonya Renee, Candice Johnson, Maribel Heredia, Jose Aldana, Mariel Rubio, Danielle Rubio, Guadalupe Gonzalez, Daisy Gonzalez (Kini, Tara) (Filed on 10/2/2007) (Entered: 10/02/2007)
21 NOTICE of Appearance by Michael Quenten Hyde on Behalf of Defendants (Hyde, Michael) (Filed on 10/18/2007) (Entered: 10/18/2007)
22 STIPULATION Extending Time for Defendants to Respond to the Complaint by Margaret Spellings, United States Department of Eudcation. (Attachments: # 1 Attestation of Concurrence to File# 2 Signature Page (Declarations/Stipulations) Stipulation with Original Signatures# 3 Certificate of Service)(Hyde, Michael) (Filed on 10/18/2007) (Entered: 10/18/2007)
23 Declination to Proceed Before a U.S. Magistrate Judge by Margaret Spellings, United States Department of Eudcation. (Hyde, Michael) (Filed on 10/18/2007) (Entered: 10/18/2007)
24 CLERK'S NOTICE of Impending Reassignment to U.S. District Judge (bpf, COURT STAFF) (Filed on 10/22/2007) (Entered: 10/22/2007)
25 ORDER REASSIGNING CASE. Case reassigned to Judge Phyllis J. Hamilton for all further proceedings. Judge Edward M. Chen no longer assigned to the case.. Signed by Executive Committee on 10/23/07. (as, COURT STAFF) (Filed on 10/23/2007) (Entered: 10/23/2007)
26 ORDER SETTING CASE MANAGEMENT CONFERENCE. Signed by Judge Phyllis J. Hamilton on 10/25/07. (nah, COURT STAFF) (Filed on 10/25/2007) (Entered: 10/25/2007)
Set Deadlines/Hearings: Case Management Statement due by 11/29/2007. Case Management Conference set for 12/6/2007 02:30 PM. (nah, COURT STAFF) (Filed on 10/25/2007) (Entered: 10/25/2007)
27 Notice of Withdrawal of Motion filed byJane Doe. (Kini, Tara) (Filed on 10/31/2007) (Entered: 10/31/2007)
28 STIPULATION Extending Time for Defendants to Respond to the Complaint by Margaret Spellings, United States Department of Eudcation. (Attachments: # 1 Attestation of Concurrence# 2 Signature Page (Declarations/Stipulations) Signature Page for Plaintiffs# 3 Certificate of Service)(Hyde, Michael) (Filed on 11/15/2007) (Entered: 11/15/2007)
29 NOTICE of Change of Address by Nicole Elise Perroton (Perroton, Nicole) (Filed on 11/19/2007) (Entered: 11/19/2007)
30 AMENDED COMPLAINT for Declaratory and Injunctive Relief against all defendants. Filed byJazmine Johnson, Adriana Ramirez, Jane Doe, Californians For Justice Education Fund, California Association of Community Organizations for Reform Now, Sonya Renee, Candice Johnson, Maribel Heredia, Jose Aldana, Mariel Rubio, Danielle Rubio, Guadalupe Gonzalez, Daisy Gonzalez. (Attachments: # 1 Exhibit Exhibit 1 Part 1 of 3# 2 Exhibit Exhibit 1 Part 2 of 3# 3 Exhibit Exhibit 1 Part 3 of 3# 4 Exhibit Exhibit 2 Part 1 of 6# 5 Exhibit Exhibit 2 Part 2 of 6# 6 Exhibit Exhibit 2 Part 3 of 6# 7 Exhibit Exhibit 2 Part 4 of 6# 8 Exhibit Exhibit 2 Part 5 of 6# 9 Exhibit Exhibit 2 Part 6 of 6# 10 Exhibit Exhibit 3# 11 Exhibit Exhibit 4−a# 12 Exhibit Exhibit 4−b Part 1 of 3# 13 Exhibit Exhibit 4−b Part 2 of 3# 14 Exhibit Exhibit 4−b Part 3 of 3# 15 Exhibit Exhibit 4−c Part 1 of 3# 16 Exhibit Exhibit 4−c Part 2 of 3# 17 Exhibit Exhibit 4−c Part 3 of 3# 18 Exhibit Exhibit 4−d# 19 Exhibit Exhibit 4−e# 20 Exhibit Exhibit 5# 21 Exhibit Exhibit 6# 22 Exhibit Exhibit 7# 23 Exhibit Exhibit 8# 24 Exhibit Exhibit 9# 25 Exhibit Exhibit 10# 26 Exhibit Exhibit 11)(Kini, Tara) (Filed on 11/27/2007) (Entered: 11/27/2007)
31 Proposed Order re 30 Amended Complaint,,,, Order Appointing Guardians Ad Litem by Jazmine Johnson, Adriana Ramirez, Jane Doe, Californians For Justice Education Fund, California Association of Community Organizations for Reform Now, Sonya Renee, Candice Johnson, Maribel Heredia, Jose Aldana, Mariel

Case: 4:07-cv-4299 As of: 06/28/2013 01:02 PM PDT 13 of 19

11/29/2007
11/29/2007
11/29/2007 11/30/2007 12/14/2007 12/14/2007 12/18/2007 12/21/2007
12/21/2007

Rubio, Danielle Rubio, Guadalupe Gonzalez, Daisy Gonzalez. (Attachments: # 1 Second Petition of Mariel Rubio for Order Appointing Her Guardian Ad Litem# 2 Petition of N. Doe for Order Appointing Her Guardian Ad Litem# 3 CERTIFICATE OF SERVICE)(Kini, Tara) (Filed on 11/27/2007) (Entered: 11/27/2007)
32 ORDER APPOINTING GUARDIANS AD LITEM re 31 Proposed Order,, filed by Daisy Gonzalez, Jazmine Johnson, Adriana Ramirez, Jose Aldana, Jane Doe, Danielle Rubio, California Association of Community Organizations for Reform Now, Californians For Justice Education Fund, Mariel Rubio, Candice Johnson, Guadalupe Gonzalez, Sonya Renee, Maribel Heredia. Signed by Judge Phyllis J. Hamilton on 11/29/07. (nah, COURT STAFF) (Filed on 11/29/2007) (Entered: 11/29/2007)
33 JOINT CASE MANAGEMENT STATEMENT filed by Jazmine Johnson, Adriana Ramirez, Jane Doe, Californians For Justice Education Fund, California Association of Community Organizations for Reform Now, Sonya Renee, Candice Johnson, Maribel Heredia, Jose Aldana, Mariel Rubio, Danielle Rubio, Guadalupe Gonzalez, Daisy Gonzalez. (Attachments: # 1 Attestation of Concurrence to File)(Kini, Tara) (Filed on 11/29/2007) (Entered: 11/29/2007)
34 Consent MOTION to Appear by Telephone at Case Management Conference filed by Margaret Spellings, United States Department of Eudcation. (Attachments: # 1 Proposed Order)(Hyde, Michael) (Filed on 11/29/2007) (Entered: 11/29/2007)
35 CLERK'S NOTICE CONTINUING INITIAL CASE MANAGEMENT CONFERENCE. Case Management Conference set for 1/10/2008 02:30 PM. (nah, COURT STAFF) (Filed on 11/30/2007) (Entered: 11/30/2007)
36 Defendants' ANSWER to Amended Complaint byMargaret Spellings, United States Department of Eudcation. (Hyde, Michael) (Filed on 12/14/2007) (Entered: 12/14/2007)
37 NOTICE by Margaret Spellings, United States Department of Eudcation of Filing of Administrative Record in Paper Form with Clerk's Office (Hyde, Michael) (Filed on 12/14/2007) (Entered: 12/14/2007)
38 ADMINISTRATIVE RECORD (four volumes) filed by Defendant. (far, COURT STAFF) (Filed on 12/18/2007) (Entered: 12/21/2007)
39 MOTION for Leave to Proceed Using Fictitious Names and to Submit Declarations Under Seal filed by Jazmine Johnson, Adriana Ramirez, Jane Doe, Californians For Justice Education Fund, California Association of Community Organizations for Reform Now, Sonya Renee, Candice Johnson, Maribel Heredia, Jose Aldana, Mariel Rubio, Danielle Rubio, Guadalupe Gonzalez, Daisy Gonzalez. Motion Hearing set for 12/30/2008 09:00 AM. (Attachments: # 1 Memorandum of Points and Authorities in Support of Motion for Leave to Proceed Using Fictitious Names and to Submit Declarations Under Seal, # 2 Proposed Order Proposed Order Granting Plaintiffs Leave to Proceed Using Fictitious Names and to Submit Declarations Under Seal, # 3 Certificate of Service)(Kini, Tara) (Filed on 12/21/2007) Modified on 1/17/2008 (far, COURT STAFF). (Entered: 12/21/2007)
40 Declaration of Tara Kini in Support of 39 MOTION for Protective Order Motion for Leave to Proceed Using Fictitious Names and to Submit Declarations Under Seal filed byJazmine Johnson, Adriana Ramirez, Jane Doe, Californians For Justice Education Fund, California Association of Community Organizations for Reform Now, Sonya Renee, Candice Johnson, Maribel Heredia, Jose Aldana, Mariel Rubio, Danielle Rubio, Guadalupe Gonzalez, Daisy Gonzalez. (Attachments: # 1 Declaration of Allison Davenport in Support of Plaintiffs' Motion for Leave to Proceed Using Fictitious Names and to File Declarations Under Seal, # 2 Declaration of Jane Doe in Support of Motion for Leave to Proceed Using Fictitious Names and to Submit Declaration Under Seal (Sealed Portion Redacted), # 3 Declaration of N. Doe in Support of Motion for Leave to Proceed Using Fictitious Names and to Submit Declarations Under Seal)(Related document(s) 39 ) (Kini, Tara) (Filed on 12/21/2007) (Entered: 12/21/2007)

Case: 4:07-cv-4299 As of: 06/28/2013 01:02 PM PDT 14 of 19

12/21/2007
12/26/2007 12/26/2007 01/07/2008
01/08/2008 01/09/2008 01/09/2008 01/09/2008 01/09/2008 01/10/2008 01/10/2008 01/10/2008
01/10/2008 01/11/2008

41 Request for Judicial Notice re 39 MOTION for Protective Order Motion for Leave to Proceed Using Fictitious Names and to Submit Declarations Under Seal, 40 Declaration in Support,,, filed byJazmine Johnson, Adriana Ramirez, Jane Doe, Californians For Justice Education Fund, California Association of Community Organizations for Reform Now, Sonya Renee, Candice Johnson, Maribel Heredia, Jose Aldana, Mariel Rubio, Danielle Rubio, Guadalupe Gonzalez, Daisy Gonzalez. (Related document(s) 39 , 40 ) (Kini, Tara) (Filed on 12/21/2007) (Entered: 12/21/2007)
Received Document DECLARATION of JANE DOE (requested to be filed under seal) by Sonya Renee. (far, COURT STAFF) (Filed on 12/26/2007) (Entered: 12/26/2007)
Received Document DECLARATION of N. Doe (Requested to be filed under seal) by Sonya Renee. (far, COURT STAFF) (Filed on 12/26/2007) (Entered: 12/26/2007)
42 JOINT CASE MANAGEMENT STATEMENT [ADDENDUM TO] filed by Jazmine Johnson, Adriana Ramirez, Jane Doe, Californians For Justice Education Fund, California Association of Community Organizations for Reform Now, Margaret Spellings, United States Department of Eudcation, Sonya Renee, Candice Johnson, Maribel Heredia, Jose Aldana, Mariel Rubio, Danielle Rubio, Guadalupe Gonzalez, Daisy Gonzalez. (Attachments: # 1 Attestation of Concurrence to File Addendum to Joint Case Management Statement)(Kini, Tara) (Filed on 1/7/2008) (Entered: 01/07/2008)
43 ADR Clerks Notice re: Non−Compliance with Court Order. (tjs, COURT STAFF) (Filed on 1/8/2008) (Entered: 01/08/2008)
44 ADR Certification (ADR L.R. 3−5b) of discussion of ADR options by Defendants (Attachments: # 1 Signature Page (Declarations/Stipulations), # 2 Attestation of Concurrence to Sign, # 3 Certificate of Service)(Hyde, Michael) (Filed on 1/9/2008) (Entered: 01/09/2008)
45 Memorandum in Opposition re 39 MOTION for Protective Order Motion for Leave to Proceed Using Fictitious Names and to Submit Declarations Under Seal filed byMargaret Spellings, United States Department of Eudcation. (Attachments: # 1 Proposed Order, # 2 Opinion in L.H. v. Schwarzenegger, # 3 Opinion in Doe v. Texaco)(Hyde, Michael) (Filed on 1/9/2008) (Entered: 01/09/2008)
ADR Remark: An ADR Phone Conference has been scheduled for 1/10/08 at 11:00 a.m. Plaintiff's counsel will initiate the call. (tjs, COURT STAFF) (Filed on 1/9/2008) (Entered: 01/09/2008)
ADR Remark: The ADR Phone Conference has been rescheduled to 11:30 a.m. on 1/10/08. (tjs, COURT STAFF) (Filed on 1/9/2008) (Entered: 01/09/2008)
46 NOTICE of need for ADR Phone Conference (ADR L.R. 3−5 d) (Attachments: # 1 Attestation of Concurrence to File Notice of Need for ADR Phone Conference)(Kini, Tara) (Filed on 1/10/2008) (Entered: 01/10/2008)
47 ADR Certification (ADR L.R. 3−5b) of discussion of ADR options (Attachments: # 1 Attestation of Concurrence to Sign ADR Certification by Parties and Counsel on Clients' Behalf)(Kini, Tara) (Filed on 1/10/2008) (Entered: 01/10/2008)
48 CERTIFICATE OF SERVICE by Jazmine Johnson, Adriana Ramirez, Jane Doe, Californians For Justice Education Fund, California Association of Community Organizations for Reform Now, Sonya Renee, Candice Johnson, Maribel Heredia, Jose Aldana, Mariel Rubio, Danielle Rubio, Guadalupe Gonzalez, Daisy Gonzalez re 46 Notice of need of ADR Phone Conference (ADR L.R. 3−5 d), 47 ADR Certification (ADR L.R. 3−5b)of discussion of ADR options (Kini, Tara) (Filed on 1/10/2008) (Entered: 01/10/2008)
ADR Remark: ADR Phone Conference conducted on 1/10/08 by RWS. (tjs, COURT STAFF) (Filed on 1/10/2008) (Entered: 01/11/2008)
49 Minute Entry: Initial Case Management Conference held on 1/10/2008 before Phyllis J. Hamilton (Date Filed: 1/11/2008). Dispositive Motions Hearing set for

Case: 4:07-cv-4299 As of: 06/28/2013 01:02 PM PDT 15 of 19

01/16/2008 01/18/2008 01/18/2008
01/22/2008 01/25/2008 01/30/2008
02/06/2008 02/06/2008

4/23/2008 09:00 AM. (Court Reporter Not Reported.) (nah, COURT STAFF) (Date Filed: 1/11/2008) (Entered: 01/11/2008)
50 REPLY in Support of 39 Motion for Leave to Proceed Using Fictitious Names filed by Jazmine Johnson, Adriana Ramirez, Jane Doe, Californians For Justice Education Fund, California Association of Community Organizations for Reform Now, Sonya Renee, Candice Johnson, Maribel Heredia, Jose Aldana, Mariel Rubio, Danielle Rubio, Guadalupe Gonzalez, Daisy Gonzalez. (Attachments: # 1 Proposed Order, # 2 Certificate of Service)(Kini, Tara) (Filed on 1/16/2008) Modified on 1/17/2008 (far, COURT STAFF). (Entered: 01/16/2008)
51 MOTION for Summary Judgment filed by Jazmine Johnson, Adriana Ramirez, Jane Doe, Californians For Justice Education Fund, California Association of Community Organizations for Reform Now, Sonya Renee, Candice Johnson, Maribel Heredia, Jose Aldana, Mariel Rubio, Danielle Rubio, Guadalupe Gonzalez, Daisy Gonzalez. Motion Hearing set for 4/23/2008 09:00 AM in Courtroom 3, 17th Floor, San Francisco. (Kini, Tara) (Filed on 1/18/2008) (Entered: 01/18/2008)
52 Brief re 51 MOTION for Summary Judgment Memorandum of Points and Authorities in Support of Plaintiffs' Motion for Summary Judgment and Exhibits in Support filed byJazmine Johnson, Adriana Ramirez, Jane Doe, Californians For Justice Education Fund, California Association of Community Organizations for Reform Now, Sonya Renee, Candice Johnson, Maribel Heredia, Jose Aldana, Mariel Rubio, Danielle Rubio, Guadalupe Gonzalez, Daisy Gonzalez. (Attachments: # 1 Exhibit Exhibits to Memorandum of Points and Authorities in Support of Plaintiffs' Motion for Summary Judgment, # 2 Declarations in Support of Plaintiffs' Motion for Summary Judgment, # 3 Proposed Order, # 4 Certificate of Service)(Related document(s) 51 ) (Kini, Tara) (Filed on 1/18/2008) (Entered: 01/18/2008)
Received Document DECLARATION of JANE DOE in Support of Plaintiffs' Motion for Summary Judgment by Jose Aldana. (REQUESTED TO BE FILED UNDER SEAL) (far, COURT STAFF) (Filed on 1/22/2008) (Entered: 01/24/2008)
53 STIPULATION and PROPOSED ORDER TO PROCEED UNDER FICTITIOUS NAMES by Jazmine Johnson, Adriana Ramirez, Jane Doe, Californians For Justice Education Fund, California Association of Community Organizations for Reform Now, Sonya Renee, Candice Johnson, Maribel Heredia, Jose Aldana, Mariel Rubio, Danielle Rubio, Guadalupe Gonzalez, Daisy Gonzalez. (Kini, Tara) (Filed on 1/25/2008) Modified on 1/28/2008 (far, COURT STAFF). (Entered: 01/25/2008)
54 Minute Entry: Motion Hearing held on 1/30/2008 before Phyllis J. Hamilton (Date Filed: 1/30/2008) re 39 MOTION for Protective Order Motion for Leave to Proceed Using Fictitious Names and to Submit Declarations Under Seal filed by Daisy Gonzalez, Jazmine Johnson, Adriana Ramirez, Jose Aldana, Jane Doe, Danielle Rubio, California Association of Community Organizations for Reform Now, Californians For Justice Education Fund, Mariel Rubio, Candice Johnson, Guadalupe Gonzalez, Sonya Renee, Maribel Heredia. (Court Reporter Margo Gurule (415) 522−2102) (nah, COURT STAFF) (Date Filed: 1/30/2008) Modified on 1/31/2008 (far, COURT STAFF). (Entered: 01/30/2008)
55 Proposed Order to Proceed Under Fictitious Names by Jazmine Johnson, Adriana Ramirez, Jane Doe, Californians For Justice Education Fund, California Association of Community Organizations for Reform Now, Sonya Renee, Candice Johnson, Maribel Heredia, Jose Aldana, Mariel Rubio, Danielle Rubio, Guadalupe Gonzalez, Daisy Gonzalez. (Kini, Tara) (Filed on 2/6/2008) (Entered: 02/06/2008)
56 Declaration of Jane Doe in Support of 40 Declaration in Support,,, 52 Brief,,, Declaration of Jane Doe in Support of Motion for Leave to Proceed Using Fictitious Names filed byJazmine Johnson, Adriana Ramirez, Jane Doe, Californians For Justice Education Fund, California Association of Community Organizations for Reform Now, Sonya Renee, Candice Johnson, Maribel Heredia, Jose Aldana, Mariel Rubio, Danielle Rubio, Guadalupe Gonzalez, Daisy Gonzalez. (Attachments: # 1 Declaration of N. Doe in Support of Motion for Leave to Proceed Using Fictitious Names, # 2 Declaration of Jane Doe in Support of Plaintiffs' Motion for Summary Judgment, # 3 Declaration of N. Doe in Support of

Case: 4:07-cv-4299 As of: 06/28/2013 01:02 PM PDT 16 of 19

02/08/2008
02/08/2008
02/08/2008 02/15/2008
02/15/2008 02/15/2008 02/15/2008 02/15/2008 02/15/2008 02/15/2008 02/19/2008 02/20/2008

Plaintiffs' Motion for Summary Judgment, # 4 Certificate of Service)(Related document(s) 40 , 52 ) (Kini, Tara) (Filed on 2/6/2008) (Entered: 02/06/2008)
57 ORDER TO PROCEED UNDER FICTITIOUS NAMES re 55 Proposed Order, filed by Daisy Gonzalez, Jazmine Johnson, Adriana Ramirez, Jose Aldana, Jane Doe, Danielle Rubio, California Association of Community Organizations for Reform Now, Californians For Justice Education Fund, Mariel Rubio, Guadalupe Gonzalez, Candice Johnson, Maribel Heredia, Sonya Renee. Signed by Judge Phyllis J. Hamilton on 2/8/08. (nah, COURT STAFF) (Filed on 2/8/2008) (Entered: 02/08/2008)
58 ORDER re 39 Motion for Leave to Proceed Using Fictitious Names filed by Daisy Gonzalez, Jazmine Johnson, Adriana Ramirez, Jose Aldana, Jane Doe, Danielle Rubio, California Association of Community Organizations for Reform Now, Californians For Justice Education Fund, Mariel Rubio, Candice Johnson, Guadalupe Gonzalez, Sonya Renee, Maribel Heredia, 57 Order. Signed by Judge Phyllis J. Hamilton on 2/8/08. (nah, COURT STAFF) (Filed on 2/8/2008) (Entered: 02/08/2008)
Set/Reset Deadlines: Amended Complaint due by 2/22/2008. (nah, COURT STAFF) (Filed on 2/8/2008) (Entered: 02/08/2008)
59 Cross MOTION for Summary Judgment filed by Margaret Spellings, United States Department of Eudcation. Motion Hearing set for 4/23/2008 09:00 AM in Courtroom 3, 17th Floor, San Francisco. (Attachments: # 1 Consolidated Memorandum in Support of Cross Motion for Summary Judgment and in Opposition to Plaintiffs' Motion for Summary Judgment, # 2 Proposed Order)(Hyde, Michael) (Filed on 2/15/2008) (Entered: 02/15/2008)
60 CONSOLIDATED MEMORANDUM in Opposition to 51 Plaintiffs' Motion for Summary Judgment and in Support of Defendants' Cross Motion for Summary Judgment filed by Margaret Spellings, United States Department of Eudcation. (Attachments: # 1 Proposed Order)(Hyde, Michael) (Filed on 2/15/2008) Modified on 2/19/2008 (far, COURT STAFF). (Entered: 02/15/2008)
61 MOTION for leave to appear in Pro Hac Vice of Donald B. Verrilli, Jr. ( Filing fee $ 210, receipt number 34611015882.) filed by Teach For America. (Attachments: # 1 Receipt)(far, COURT STAFF) (Filed on 2/15/2008) (Entered: 02/19/2008)
62 Received Order re 61 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 210, receipt number 34611015882.) by Teach For America. (far, COURT STAFF) (Filed on 2/15/2008) (far, COURT STAFF). (Entered: 02/19/2008)
63 MOTION for Leave to File a Memorandum of Law in Support of Defendants' Memorandum of Points and Authorities in Opposition to Plaintiffs' Motion for Summary Judgment and Cross−Motion for Summary Judgment filed by Teach For America. (far, COURT STAFF) (Filed on 2/15/2008) (Entered: 02/19/2008)
64 AMICUS CURIAE BRIEF in Opposition to Plaintiff's Motion for Summary Judgment and in support of Defendant's Cross−Motion for Summary Judgment filed byTeach For America. (far, COURT STAFF) (Filed on 2/15/2008) (Entered: 02/19/2008)
65 INDEX OF EXHIBITS re 64 filed by Teach For America. (far, COURT STAFF) (Filed on 2/15/2008) (Entered: 02/19/2008)
66 CLERK'S NOTICE re: Motion for Leave to File a Memorandum of Law 63 , Brief 64 and Index of Exhibits 65 ; Documents E−Filed in a case not designated for ECF (far, COURT STAFF) (Filed on 2/19/2008) (Entered: 02/19/2008)
67 ORDER DENYING MOTION FOR LEAVE TO FILE A MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGEMENT by Judge Phyllis J. Hamilton denying 63 Motion for Leave to File (nah, COURT STAFF) (Filed on 2/20/2008) (Additional attachment(s) added on 2/20/2008: # 1 Certificate of Service) (nah, COURT STAFF). (Entered: 02/20/2008)

Case: 4:07-cv-4299 As of: 06/28/2013 01:02 PM PDT 17 of 19

02/21/2008 02/22/2008 03/12/2008
04/02/2008 04/03/2008 04/04/2008 04/18/2008 04/23/2008
06/17/2008 07/01/2008

68 STIPULATION OF DISMISSAL OF CLAIMS OF PLAINTIFF N. DOE and PROPOSED ORDER by Jazmine Johnson, Adriana Ramirez, Jane Doe, Californians For Justice Education Fund, California Association of Community Organizations for Reform Now, Sonya Renee, Candice Johnson, Maribel Heredia, Jose Aldana, Mariel Rubio, Danielle Rubio, Guadalupe Gonzalez, Daisy Gonzalez. (Kini, Tara) (Filed on 2/21/2008) Modified on 2/22/2008 (far, COURT STAFF). (Entered: 02/21/2008)
69 STIPULATION AND ORDER of dismissal of claims of plaintiff N. Doe. Signed by Judge Phyllis J. Hamilton on 02/22/08. (rbe, COURT STAFF) (Filed on 2/22/2008) (Entered: 02/22/2008)
70 CONSOLIDATED MEMORANDUM OF POINTS AND AUTHORITIES in Opposition to 59 Defendants' Cross Motion for Summary Judgment and REPLY IN SUPPORT OF 51 Plaintiffs' Motion for Summary Judgment and EXHIBITS in Support by Jazmine Johnson, Adriana Ramirez, Jane Doe, Californians For Justice Education Fund, California Association of Community Organizations for Reform Now, Sonya Renee, Candice Johnson, Maribel Heredia, Jose Aldana, Mariel Rubio, Danielle Rubio, Guadalupe Gonzalez, Daisy Gonzalez. (Attachments: # 1 Exhibit, # 2 Affidavit, # 3 Certificate of Service)(Kini, Tara) (Filed on 3/12/2008) Modified on 3/13/2008 (far, COURT STAFF). (Entered: 03/12/2008)
71 STIPULATION Extending Time for Defendants to File a Reply in Favor of Their 59 Cross Motion for Summary Judgment by Margaret Spellings, United States Department of Eudcation. (Attachments: # 1 Attestation of Concurrence, # 2 Signature Page (Declarations/Stipulations), # 3 Certificate of Service)(Hyde, Michael) (Filed on 4/2/2008) Modified on 4/4/2008 (far, COURT STAFF). (Entered: 04/02/2008)
72 STIPULATION AND ORDER EXTENDING TIME FOR DEFENDANTS TO FILE A REPLY IN FAVOR OF THEIR CROSS MOTION FOR SUMMARY JUDGMENT re 71 Stipulation, filed by United States Department of Eudcation, Margaret Spellings. Signed by Judge Phyllis J. Hamilton on 4/3/08. (nah, COURT STAFF) (Filed on 4/3/2008) (Entered: 04/03/2008)
73 REPLY in Favor of 59 Cross MOTION for Summary Judgment filed byMargaret Spellings, United States Department of Eudcation. (Attachments: # 1 Affidavit Ex. A − Declaration of Michael Q. Hyde)(Hyde, Michael) (Filed on 4/4/2008) Modified on 4/7/2008 (far, COURT STAFF). (Entered: 04/04/2008)
74 REQUEST for Judicial Notice in Support of 51 Plaintiffs' Motion for Summary Judgment filed by Jazmine Johnson, Adriana Ramirez, Jane Doe, Californians For Justice Education Fund, California Association of Community Organizations for Reform Now, Sonya Renee, Candice Johnson, Maribel Heredia, Jose Aldana, Mariel Rubio, Danielle Rubio, Guadalupe Gonzalez, Daisy Gonzalez. (Kini, Tara) (Filed on 4/18/2008) Modified on 4/21/2008 (far, COURT STAFF). (Entered: 04/18/2008)
75 Minute Entry: Motion Hearing held on 4/23/2008 before Phyllis J. Hamilton re 59 Cross MOTION for Summary Judgment filed by United States Department of Eudcation, Margaret Spellings, 51 MOTION for Summary Judgment filed by Daisy Gonzalez, Jazmine Johnson, Adriana Ramirez, Jose Aldana, Jane Doe, Danielle Rubio, California Association of Community Organizations for Reform Now, Californians For Justice Education Fund, Mariel Rubio, Candice Johnson, Guadalupe Gonzalez, Sonya Renee, Maribel Heredia. (Court Reporter Jim Yeomans (415) 863−5179) (nah, COURT STAFF) (Date Filed: 4/23/2008) Modified on 4/23/2008 (far, COURT STAFF). (Entered: 04/23/2008)
76 ORDER by Judge Hamilton denying 51 Motion for Summary Judgment; granting 59 Motion for Summary Judgment (pjhlc1, COURT STAFF) (Filed on 6/17/2008) (Entered: 06/17/2008)
77 STIPULATION of Parties Regarding Entry of Proposed Judgment by Margaret Spellings, United States Department of Eudcation. (Attachments: # 1 Attestation of Concurrence to File, # 2 Signature Page (Declarations/Stipulations) Plaintiffs' Signature Page, # 3 Certificate of Service)(Hyde, Michael) (Filed on 7/1/2008) (Entered: 07/01/2008)

Case: 4:07-cv-4299 As of: 06/28/2013 01:02 PM PDT 18 of 19

07/02/2008 07/18/2008
07/21/2008 07/21/2008 07/29/2008 07/29/2008
08/29/2008 10/16/2008 10/21/2008 10/29/2008 08/19/2009

78 STIPULATION AND FINAL JUDGMENT, ***Civil Case Terminated. Signed by Judge Phyllis J. Hamilton on 7/2/08. (nah, COURT STAFF) (Filed on 7/2/2008) (Entered: 07/02/2008)
79 NOTICE OF APPEAL as to 78 Judgment, Terminated Case, 76 Order on Motion for Summary Judgment by Jazmine Johnson, Adriana Ramirez, Jane Doe, Californians For Justice Education Fund, California Association of Community Organizations for Reform Now, Sonya Renee, Candice Johnson, Maribel Heredia, Jose Aldana, Mariel Rubio, Danielle Rubio, Guadalupe Gonzalez, Daisy Gonzalez. Filing fee $ 455, Receipt Number 34611021441. (far, COURT STAFF) (Filed on 7/18/2008) (Entered: 07/21/2008)
81 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 79 Notice of Appeal, (far, COURT STAFF) (Filed on 7/21/2008) (Additional attachment(s) added on 7/21/2008: # 1 USCA Appeal Form, # 2 Notice of Appeal, # 3 Docket Sheet) (far, COURT STAFF). (Entered: 07/21/2008)
80 Copy of Notice of Appeal and Docket sheet mailed to all counsel (Attachments: # 1 Docket Sheet)(far, COURT STAFF) (Filed on 7/21/2008) (Entered: 07/21/2008)
82 USCA Case Number 08−16661 for 79 Notice of Appeal, filed by Daisy Gonzalez, Jazmine Johnson, Adriana Ramirez, Jose Aldana, Jane Doe, Danielle Rubio, California Association of Community Organizations for Reform Now, Californians For Justice Education Fund, Mariel Rubio, Candice Johnson, Guadalupe Gonzalez, Sonya Renee, Maribel Heredia. (rcs, COURT STAFF) (Filed on 7/29/2008) (Entered: 07/29/2008)
83 Transcript of Proceedings held on 04/23/08, before Judge Phyllis J. Hamilton. Court Reporter/Transcriber James Yeomans, Telephone number (415) 863−5179. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 10/24/2008. (jjy, COURT STAFF) (Filed on 7/29/2008) (Entered: 07/29/2008)
84 ORDER of USCA re 79 Notice of Appeal, filed by Daisy Gonzalez, Jazmine Johnson, Adriana Ramirez, Jose Aldana, Jane Doe, Danielle Rubio, California Association of Community Organizations for Reform Now, Californians For Justice Education Fund, Mariel Rubio, Candice Johnson, Guadalupe Gonzalez, Sonya Renee, Maribel Heredia (far, COURT STAFF) (Filed on 8/29/2008) (Entered: 08/29/2008)
85 ORDER of USCA as to 79 Notice of Appeal, filed by Daisy Gonzalez, Jazmine Johnson, Adriana Ramirez, Jose Aldana, Jane Doe, Danielle Rubio, California Association of Community Organizations for Reform Now, Californians For Justice Education Fund, Mariel Rubio, Candice Johnson, Guadalupe Gonzalez, Sonya Renee, Maribel Heredia (far, COURT STAFF) (Filed on 10/16/2008) (Entered: 10/16/2008)
86 Certificate of Record Mailed to USCA re appeal 79 Notice of Appeal (far, COURT STAFF) (Filed on 10/21/2008) (Entered: 10/21/2008)
87 ORDER of USCA re 79 Notice of Appeal, filed by Daisy Gonzalez, Jazmine Johnson, Adriana Ramirez, Jose Aldana, Jane Doe, Danielle Rubio, California Association of Community Organizations for Reform Now, Californians For Justice Education Fund, Mariel Rubio, Candice Johnson, Guadalupe Gonzalez, Sonya Renee, Maribel Heredia (far, COURT STAFF) (Filed on 10/29/2008) (Entered: 10/29/2008)
88 USCA OPINION as to 79 Notice of Appeal, filed by Daisy Gonzalez, Jazmine Johnson, Adriana Ramirez, Jose Aldana, Jane Doe, Danielle Rubio, California Association of Community Organizations for Reform Now, Californians For Justice Education Fund, Mariel Rubio, Candice Johnson, Guadalupe Gonzalez, Sonya Renee, Maribel Heredia (far, COURT STAFF) (Filed on 8/19/2009) (Entered: 08/19/2009)

Case: 4:07-cv-4299 As of: 06/28/2013 01:02 PM PDT 19 of 19

09/14/2009
09/14/2009
09/27/2010 10/13/2010
10/21/2010 02/16/2011
03/14/2011 07/05/2012

89 ORDER of USCA as to 79 Notice of Appeal, filed by Daisy Gonzalez, Jazmine Johnson, Adriana Ramirez, Jose Aldana, Jane Doe, Danielle Rubio, California Association of Community Organizations for Reform Now, Californians For Justice Education Fund, Mariel Rubio, Candice Johnson, Guadalupe Gonzalez, Sonya Renee, Maribel Heredia (far, COURT STAFF) (Filed on 9/14/2009) (Entered: 09/14/2009)
90 ORDER of USCA as to 79 Notice of Appeal, filed by Daisy Gonzalez, Jazmine Johnson, Adriana Ramirez, Jose Aldana, Jane Doe, Danielle Rubio, California Association of Community Organizations for Reform Now, Californians For Justice Education Fund, Mariel Rubio, Candice Johnson, Guadalupe Gonzalez, Sonya Renee, Maribel Heredia (far, COURT STAFF) (Filed on 9/14/2009) (Entered: 09/14/2009)
91 ORDER and Opinion of USCA as to 79 Notice of Appeal (vlk, COURT STAFF) (Filed on 9/27/2010) (Entered: 09/28/2010)
92 ORDER of USCA as to 79 Notice of Appeal, filed by Daisy Gonzalez, Jazmine Johnson, Adriana Ramirez, Jose Aldana, Jane Doe, Danielle Rubio, California Association of Community Organizations for Reform Now, Californians For Justice Education Fund, Mariel Rubio, Candice Johnson, Guadalupe Gonzalez, Sonya Renee, Maribel Heredia (vlk, COURT STAFF) (Filed on 10/13/2010) (Entered: 10/29/2010)
93 ORDER of USCA: That appellant's motion for extension of time to respond to petition for rehearing en banc is GRANTED, as to 79 Notice of Appeal USCA No. 08−16661. (jlm, COURT STAFF) (Filed on 10/21/2010) (Entered: 11/18/2010)
94 ORDER of USCA as to 79 Notice of Appeal, filed by Daisy Gonzalez, Jazmine Johnson, Adriana Ramirez, Jose Aldana, Jane Doe, Danielle Rubio, California Association of Community Organizations for Reform Now, Californians For Justice Education Fund, Mariel Rubio, Candice Johnson, Guadalupe Gonzalez, Sonya Renee, Maribel Heredia (vlk, COURT STAFF) (Filed on 2/16/2011) (Entered: 03/02/2011)
95 ORDER of USCA as to 79 Notice of Appeal granting motion for extension of time to file supplemental brief (vlk, COURT STAFF) (Filed on 3/14/2011) (Entered: 03/21/2011)
96 MANDATE of USCA as to 79 Notice of Appeal, filed by Daisy Gonzalez, Jazmine Johnson, Adriana Ramirez, Jose Aldana, Jane Doe, Danielle Rubio, California Association of Community Organizations for Reform Now, Californians For Justice Education Fund, Mariel Rubio, Candice Johnson, Guadalupe Gonzalez, Sonya Renee, Maribel Heredia (vlk, COURT STAFF) (Filed on 7/5/2012) (Entered: 12/10/2012)

 
 No. 08-16661
United States Court of Appeals For The Ninth Circuit
SONYA RENEE ET AL., Plaintiffs-Appellants,
v. MARGARET SPELLINGS, in her official capacity; UNITED STATES DEPARTMENT OF EDUCATION,
Defendants-Appellees
Appeal from the United States District Court for the Northern District of California Case No. 3:07-cv-04299-PJH
APPELLANTS’ CORRECTED OPENING BRIEF

JOHN T. AFFELDT TARA KINI PUBLIC ADVOCATES, INC. 131 Steuart Street, Suite 300 San Francisco, CA 94105 Telephone: (415) 431-7430 Facsimile: (415) 431-1048 jaffeldt@publicadvocates.org tkini@publicadvocates.org
DAVID B. COOK GOODWIN PROCTER LLP 901 New York Avenue, N.W. Washington, D.C. 20001 Tel: (202) 346-4000 Fax: (202) 346-4444 dcook@goodwinprocter.com

JEFFREY A. SIMES GOODWIN PROCTER LLP The New York Times Building 620 Eighth Avenue New York, New York 10018 Tel: (212) 813-8879 Fax: (212) 355-3333 jsimes@goodwinprocter.com
PATRICK THOMPSON ELIZABETH F. STONE GOODWIN PROCTER LLP 101 California Street # 1850 San Francisco, California 94111 Tel: (415) 733-6000 Fax: (415) 677-9041 pthompson@goodwinprocter.com

Attorneys for Plaintiffs-Appellants Sonya Renee, et al.

FED. R. APP. P. 26.1 CORPORATE DISCLOSURE STATEMENT Plaintiff-Appellant Californians for Justice Education Fund is a non-profit corporation, is not owned by any parent corporation, has not issued any stock, and no publicly-held company owns any interest in it. Plaintiff-Appellant California Association of Community Organizations for Reform Now (Cal. ACORN) is the statewide affiliate of the national Association of Community Organizations for Reform Now (ACORN), a national non-profit corporation which is not owned by any parent corporation, has not issued any stock, and in which no publicly-held company owns any interest.

Dated: October 6, 2008

Respectfully submitted,
/s/ John T. Affeldt JOHN T. AFFELDT PUBLIC ADVOCATES, INC. 131 Steuart Street, Suite 300 San Francisco, CA 94105

FRAP 26.1 CORPORATE DISCLOSURE STATEMENT CASE NO. 08-16661

TABLE OF CONTENTS
TABLE OF AUTHORITIES ..........................................................................................v
INTRODUCTION ..........................................................................................................1
JURISDICTION.............................................................................................................. 4
QUESTIONS PRESENTED...........................................................................................4
STANDARD OF REVIEW.............................................................................................5
STATEMENT OF THE CASE .......................................................................................6
STATEMENT OF FACTS..............................................................................................7
A. The No Child Left Behind Act Seeks to Ensure That Every Child is Taught by a “Highly Qualified” Teacher (“HQT”) Who Has Obtained Full State Certification ............................................................7
1. NCLB Contains Numerous Overlapping Teacher Hiring, Distribution, Planning, and Reporting Requirements to Ensure That the 100% HQT Requirement is Met. ............................................8
2. NCLB Defines a “Highly Qualified” Teacher as One Who “Has Obtained Full State Certification.” ........................................................10
B. Congress Assigned to States the Role of Establishing Critical NCLB Standards, Including Each State’s Standard for Full Certification .............................................................................................11
C. ED’s Regulation Defines the Term “Highly Qualified” Teacher to Include Teachers Participating in Alternative Certification Programs and Only Working Towards Full State Certification............................................12
D. California Does Not Consider Alternative Route Participants to Have Obtained Full State Certification But Labels Them “Highly Qualified” Pursuant to ED’s Regulation.................................................14 i
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E. ED’s Regulation Undermines the Implementation of NCLB’s “Highly Qualified” Teacher Provisions, Especially in California Where Alternative Route Participants Disproportionately Teach in Underperforming, Low-Income, High Minority Schools.....................................19
1. Defendants’ Regulation Substantially Alters the Implementation of NCLB’s HQT Provisions..................................................19
2. Since ED Issued the Challenged Regulation, the Number of Interns in California Has Significantly Increased, With These New Interns Disproportionately Assigned to Teach Low-income, Minority Students.......................................................22
SUMMARY OF ARGUMENT ....................................................................................25
ARGUMENT ................................................................................................................27
I. THE DISTRICT COURT ERRED IN CONCLUDING THAT CONGRESS’S DEFINITION OF A “HIGHLY QUALIFIED” TEACHER AS ONE WHO “HAS OBTAINED FULL STATE CERTIFICATION AS A TEACHER” IS AMBIGUOUS. ...............................28
A. Congress’s Use of the Term “Full State Certification” Established an Unambiguous Standard for HQTs.........................................................28
1. The District Court Erred in Ignoring the Plain Language of the Phrase “Full State Certification.” ............................................................29
2. The District Court Erred in Ignoring the Direct Conflict Between ED’s Regulation and the Statute’s Plain Language Awarding “Highly Qualified” Status Only to Individuals Who “Ha[ve] Obtained” Full State Certification. ............................................31
3. The District Court Erred in Ignoring the Legislative History Underlying the Phrase “Full State Certification.” ...................................32
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4. The District Court Failed to Understand that Congress’s Requirement of “Full State Certification” References the Laws of All Fifty States...........................................................................36
5. ED Consistently Agreed Pre-Litigation That “Full State Certification” Unambiguously Means an Individual Who Has Fully Met the State’s Certification Requirements Relative to the Individual’s Years of Experience and Does Not Encompass Alternate Route Participants. ......39
B. The District Court’s Interpretation of the Parenthetical “(Including Certification Obtained Through Alternative Routes to Certification)” Is Erroneous and Conflicts With ED’s Prior Interpretations in the Record......................................................................44
C. The District Court Ignored the Direct Conflict Between ED’s Regulation and Congress’s Explicit Exclusion of Teachers Who Have “Emergency, Temporary, or Provisional” Certification From the “Highly Qualified” Definition...................................................46
II. EVEN ASSUMING THE STATUTE IS AMBIGUOUS, THE DISTRICT COURT ERRED IN CONCLUDING THAT ED’S REGULATION DEFINING A TEACHER-IN-TRAINING AS “HIGHLY QUALIFIED” IS REASONABLE AND CONSISTENT WITH NCLB. .................................49
A. ED’s Regulation is Wholly Inconsistent With the Statutory Scheme and Undermines NCLB’s Goals of Improving Access to, Distribution of, and Public Accountability for Better Prepared Teachers .....................................................................................................50
1. ED’s Regulation Frustrates Congress’s Intent that Poor and Minority Students Have Equal, if Not Greater, Access to Fully-prepared, Wellqualified Teachers. ...................................................................................51
2. ED’s Regulation Frustrates Congress’s Intent that Schools, Districts, and States Provide Accurate, Meaningful Information to Parents and the Public Regarding Students’ Access to Better Prepared Teachers. ....54
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3. ED’s Regulation is Also Unreasonable Because it Usurps States’ Longstanding Authority over Teacher Certification, Which NCLB Explicitly Sought to Reinforce.................................................................56
B. The District Court Erroneously Concluded That Reading NCLB’s HQT Definition as Requiring “Full State Certification” Is Inconsistent With Congress’s Support for Alternative Route Certification Programs. ..........57
1. The District Court and ED Erred As a Matter of Law in Presuming that Congress Inadvertently Excluded Alternate Route Participants from “Highly Qualified” Status...............................................................57
2. Because Participation in the Various Alternate Route Programs is Voluntary, not Mandatory, and Because Congress has Delegated to States the Role of Defining “Full State Certification,” There is No Irreconcilable Conflict Between the Two. ..............................................59
3. NCLB’s Statutory Scheme Fully Accepts that Non-HQTs Will Continue to Teach in Areas Where There Are Teacher Shortages and Supports Alternative Route Programs as One Way to Help Transition Districts Into Compliance With the 100% HQT Requirement............................................................................................. 59
III. THE DISTRICT COURT ERRONEOUSLY CONCLUDED THAT CONGRESS’S FAILURE TO AMEND NCLB’S HQT DEFINITION INDICATES CONGRESSIONAL APPROVAL OF ED’S REGULATION. ..62
CONCLUSION AND REMEDY REQUESTED.........................................................64
STATEMENT OF RELATED CASES ........................................................................65
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TABLE OF AUTHORITIES
Cases
Aaron v. SEC, 446 U.S. 680 (1980) ..........................................................................................63
Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995) ..........................................................................................31
Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988) .........................................................................................39
California Cosmetology Coalition v. Riley, 110 F.3d 1454 (9th Cir. 1997)............................................................5, 57, 58, 59
Chevron v. Natural Res. Def. Council, 467 U.S. 837 (1984) ...................................................................................passim
Conlan v. U.S. Dept. of Labor, 76 F.3d 271 (9th Cir. 1996) .................................................................................5
Demby v. Schweiker, 671 F.2d 507 (D.C. Cir. 1981) ...........................................................................34
FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981) ............................................................................................50
Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781 (9th Cir. 1995) ................................................................................5
Freeman v. Pitts, 503 U.S. 467, 490 (1992) .................................................................................36
Gen. Dynamics Land Sys. v. Cline, 540 U.S. 581 (2004) ...........................................................................................30
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Hawaii v. FEMA, 294 F.3d 1152 (9th Cir. 2001) ...........................................................................50
Int’l Bhd. of Teamsters v. Daniel, 439 U.S. 551 (1979) .........................................................................................39
Johnson v. Aljian, 490 F.3d 778 (9th Cir. 2007)..............................................................................30
Kaiser Aluminum & Chem. Corp. v. Bonneville Power Admin., 261 F.3d 843 (9th Cir. 2001) .............................................................................50
Koshland v. Helvering, 298 U.S. 441 (1936) ..........................................................................................58
MCI Telecomms. Corp. v. AT & T Co., 512 U.S. 218 (1994) .....................................................................................28, 51
Miles v. Apex Marine, 498 U.S. 19 (1970) .............................................................................................40
Rapanos v. United States, 547 U.S. 715 (2006) .....................................................................................56, 63
Robinson v. Shell Oil Co., 519 U.S. 337 (1997) ..........................................................................................27
Russello v. United States, 464 U.S. 16 (1983) .............................................................................................30
Sierra Club v. Clark, 755 F.2d 608 (8th Cir. 1985)..............................................................................34
Southwest Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443 (9th Cir. 1996)............................................................................38
SWANCC v. United States Army Corps of Eng’rs 531 U.S. 159 (2001) ...........................................................................................63
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Turtle Island Restoration Network v. Nat’l Marine Fisheries Serv., 340 F.3d 969 (9th Cir. 2003) .............................................................................35
United States v. Calamaro, 354 U.S. 351 (1957) ...........................................................................................58
United States v. Motamedi, 767 F.2d 1403 (9th Cir. 1985)............................................................................57
Federal Statutes and Rules
5 U.S.C. §§ 701-706........................................................................................................4
20 U.S.C.
§ 6301 .....................................................................................................11, 51, 54 § 6311(a).............................................................................................................60 § 6311(b)(1)(A)-(B) .................................................................................9, 11, 12 § 6311(b)(2)(B) .................................................................................................51 § 6311(b)(2)(F).........................................................................................7, 11, 51 § 6311(b)(3)..................................................................................................11, 12 § 6311(b)(8)(C) ........................................................................................9, 44, 60 § 6311(h)(1)(C)(viii) ....................................................................................10, 60 § 6311(h)(2)..................................................................................................10, 60 § 6311(h)(4)-(5)..................................................................................................10 § 6311(h)(6)(B)(ii) .......................................................................................10, 54 § 6312(b)(1)(N) ....................................................................................................9 § 6312(c)(1)(I)..............................................................................................10, 60 § 6319(a)(1)-(3)..............................................................................................9, 12 § 6319(b)(1)(A)-(B) .....................................................................................10, 60 § 6613 ...........................................................................................................12, 61 § 6623 .................................................................................................................61 § 6671 et seq.......................................................................................................60 § 6674 .................................................................................................................61 § 6681 et seq.......................................................................................................60 § 6682 .................................................................................................................61 § 6683 .................................................................................................................61
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§ 7801(11) ............................................................................................................9 § 7801(23)(A)..............................................................................................passim
28 U.S.C.
§ 1291 ...................................................................................................................4 § 1331 ...................................................................................................................4
34 C.F.R.
§ 200.55(c)............................................................................................................9 § 200.56(a)(2)..............................................................................................passim § 200.57(b)(2).....................................................................................................10
FED. RULE APP. P. 4.........................................................................................................4
California Statutes
Cal. Code Regs. tit. 5
§ 6101 ...........................................................................................................18, 19 § 6110 ...........................................................................................................18, 19 § 80413 ...............................................................................................................47
Cal. Educ. Code
§ 44225.7 ......................................................................................................17, 47 § 44251 .........................................................................................................17, 47 § 44259 .............................................................................................15, 16, 17, 47 § 44274.2. .....................................................................................................15, 16 § 44325 .........................................................................................................17, 47 § 44455 ...............................................................................................................47 § 44463 .........................................................................................................17, 47 § 44835. ..............................................................................................................18
Senate Bill 1186 (2008) (Scott) ...................................................................................17
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Other Authorities 147 CONG. REC. S4125 (May 2, 2001) ...........................................................................8 147 CONG. REC. H2611-01 (May 23, 2001) .................................................................52 147 Cong. Rec. H4121-01 (July 18, 2001) ...................................................................52 148 CONG. REC. S 5341 (June 11, 2002) ................................................................35, 62 CONF. REP. NO. 107-334 to accompany H.R. 1 (Dec. 12, 2001) ..................................34 H.R. 1, 107th Cong. (introduced Mar. 22, 2001)....................................................32, 33 H.R. Rep. No. 107-63 (May 14, 2001) .........................................................................33 H.R. 1, 107th Cong. (1st Sess. 2001) (May 23, 2001)..................................................33 S. 1, 107th Cong. (introduced Mar. 28, 2001) ........................................................32, 33 S. REP. NO. 107-7 (June 14, 2001) ................................................................................33 67 Fed. Reg. 71764-71765 (Dec. 2, 2002)....................................................................58 Goodwin Liu, Education, Equality, and National Citizenship, 116 YALE L.J. 330 (2006) .............................................................................................36
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INTRODUCTION At issue in this case is the quality of teacher owed every public school student in the nation. When Congress passed the No Child Left Behind Act of 2001 (“NCLB”, or “the Act”), it made a promise to all students—and especially poor and minority students—that they would be taught by fully-certified, “highly qualified” teachers. Through this Administrative Procedure Act challenge, Plaintiffs-Appellants school children, their parents, and community organizations (“Plaintiffs”) seek to hold Secretary of Education Margaret Spellings and the United States Department of Education (“ED” or “Defendants”) accountable for reneging on Congress’ promise. Congress built an unambiguous definition of the term “highly qualified” teacher into NCLB and created numerous overlapping provisions to ensure that states, districts, and schools would ultimately realize the promise of a fully prepared teacher for all students. Yet, by regulatory fiat, ED redefined this term to mean the opposite of what Congress directed. Where Congress defined as “highly qualified” only teachers who “ha[ve] obtained full State certification,” (20 U.S.C. § 7801(23)(A)), ED’s unlawful regulation labels “highly qualified” teachers as anyone “participating in” alternative certification programs and merely making “progress toward full certification as prescribed by the State” (34 C.F.R. §
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200.56(a)(2)(ii)) (emphases added). Thus, by the regulation’s own terms, novice teachers-in-training beginning to seek the statute’s mandated full state certification standard are treated as having already obtained it. In issuing judgment in favor of ED, the lower court implausibly held that the regulation was not in obvious conflict with Congress’s standard and, instead, was owed deference under the second prong of Chevron v. NRDC, 467 U.S. 837 (1984). Excerpts of Record (“ER”) 11-13.
Alternative route teacher preparation programs differ from traditional university-based programs principally in that alternative route participants are hired by a school district to teach full-time as the sole teacher in a classroom while completing teacher preparation coursework from a local university or the district at night and on weekends. While current teacher shortages continue, well-run alternative route programs can serve as an additional pipeline to prepare future “highly qualified” teachers, but that fact cannot justify categorizing their participants, who are still learning how to teach, as if they were the most fully prepared and experienced of teachers.
As a result of the lower court’s erroneous ruling, novice teachers-intraining—over 10,000 in California alone and over 100,000 nationally—are now deemed “highly qualified” the very first day they enter an alternative route
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certification program and take full responsibility for a classroom. Contrary to NCLB, these underprepared teachers are mislabeled and misreported to parents and the public as “highly qualified” and are allowed to be hired and assigned without restriction. Also, contrary to the Act’s requirements concerning placement of non“highly qualified” teachers, these alternative route teachers-in-training (known as “interns” in California) are disproportionately placed in low-income, high minority schools. Nearly a quarter of California’s 10,000 interns teach in schools whose students are 98-100% minority; as such, these minority students are five times more likely to have intern teachers than students in schools with the lowest proportion of minority students. Finally, ED’s regulation, by mislabeling novices still working toward full certification as “highly qualified,” absolves states and districts from having to include them in mandatory plans to redress “highly qualified” teacher shortages, exacerbating school inequalities.
Few issues can be as important to our nation as ensuring that all children have a fully prepared, high quality teacher as Congress mandated. Yet the District Court’s decision significantly undercuts the standard of teacher NCLB requires every child receive and eviscerates the Act’s core teacher quality provisions. Plaintiffs ask this Court to reverse the District Court’s decision and enforce
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Congress’s mandate that all children have full and equal access to “highly qualified” teachers that are fully-certified as prescribed by the laws of each state.
JURISDICTION The District Court had jurisdiction over this case pursuant to 28 U.S.C. § 1331 and 5 U.S.C. § 701-706 (Administrative Procedure Act actions). Plaintiffs appeal under 28 U.S.C. § 1291 from the June 17, 2008 order of the District Court denying Plaintiffs’ motion for summary judgment and granting Defendants’ cross-motion for summary judgment and the July 2, 2008 final judgment in favor of Defendants and against Plaintiffs, dismissing the case. Plaintiffs timely filed the Notice of Appeal on July 18, 2008. FED. R. APP. P. 4.
QUESTIONS PRESENTED 1. Where the No Child Left Behind Act mandates that all children be taught by
“highly qualified” teachers who “ha[ve] obtained full State certification,” did the District Court err in concluding that ED’s regulation did not unambiguously conflict with that standard when it defined “highly qualified” teachers as those merely making “progress toward full certification as prescribed by the State”? 2. Assuming there exists ambiguity in whether ED’s regulation violates Congress’s “full State certification” standard, did the District Court
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nonetheless err in finding the regulation reasonable and consistent with the purposes of NCLB’s provisions to improve teacher quality when—in lieu of a requirement that all teachers have completed their pedagogical training before earning “highly qualified” status—the regulation permits, without any limitation or notice to the public, all teachers in a school, a district, or even an entire state to teach full time while learning how to teach in alternative route preparation programs at night and on weekends?
STANDARD OF REVIEW The District Court’s grant of summary judgment in favor of Defendants is subject to de novo review. California Cosmetology Coalition v. Riley, 110 F.3d 1454 (9th Cir. 1997). Where the issue in a case is an agency’s interpretation of a statute—here, ED’s regulatory interpretation of NCLB’s “highly qualified teacher” definition—the case presents a question of law that an appellate court reviews de novo. Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781, 783 (9th Cir. 1995); Conlan v. U.S. Dept. of Labor, 76 F.3d 271, 274 (9th Cir. 1996).
STATEMENT OF THE CASE In August 2007, Plaintiffs-Appellants—several California public school students and their parents as well as two grassroots community organizations— brought this Administrative Procedure Act (“APA”) challenge against the United
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States Department of Education and Secretary of Education Margaret Spellings challenging part of ED’s regulatory definition of the term “highly qualified teacher” (specifically, all of 34 C.F.R. § 200.56(a)(2)(ii)) as in conflict with the definition of that term as provided by Congress in the NCLB Act itself. Plaintiffs requested declaratory and injunctive relief on the basis of their APA claims. Plaintiffs amended their complaint in November 2007 to add additional individual plaintiffs.
The parties stipulated that this case presented pure legal issues appropriate for decision on summary judgment. The District Court heard argument on crossmotions for summary judgment on April 23, 2008 and issued a decision on June 17, 2008 denying Plaintiffs’ motion for summary judgment and granting Defendants’ cross-motion. On July 18, 2008, Plaintiffs appealed from the District Court’s June 17, 2008 order and July 2, 2008 final judgment dismissing the case in favor of Defendants.
On August 1, 2008, Plaintiffs filed in this Court a Motion to Expedite Briefing and Argument on the grounds that a normal schedule would have mooted the appeal for six of the nine student plaintiffs, who will graduate from high school within the next one to two years, and that all Plaintiffs—as well as hundreds of thousands of similarly situated students across California and millions across the
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nation—are suffering irreparable educational harm as a result of ED’s unlawful
regulation. On August 26, 2008, this Court granted Plaintiffs’ motion in part,
accelerating the briefing schedule and ordering that the matter be calendared “as
soon as possible.”
STATEMENT OF FACTS
A. The No Child Left Behind Act Seeks to Ensure That Every Child is Taught by a “Highly Qualified” Teacher (“HQT”) Who Has Obtained Full State Certification.
Since 2002, NCLB has served as the current version of the Elementary and
Secondary Education Act, first enacted in 1965, and the foundation for federal K-
12 education policy. The ultimate goal of NCLB is that all students attain
proficiency in reading and math by 2014, eliminating the significant academic
achievement gaps between students of different socioeconomic and racial/ethnic
groups. 20 U.S.C. § 6311(b)(2)(F). An essential component of NCLB’s
promotion of academic achievement and accountability is that students be taught
by “highly qualified” teachers. Secretary Spellings’ official correspondence to
states acknowledges the centrality of teacher quality to NCLB:
[NCLB] recognizes that teacher quality is one of the most important factors in improving student achievement and eliminating these achievement gaps. As a result, the law set the important goal that all students be taught by a “highly qualified teacher” (HQT) who holds at least a bachelor’s degree, has obtained full State certification, and has
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demonstrated knowledge in the core academic subjects he or she teaches.
ER447 (emphasis added). The Secretary’s statements echo those of Senator
Kennedy, chair of the Senate Health, Education, Labor and Pensions Committee
and a chief architect of NCLB, in urging his colleagues to pass the Senate’s
parallel version of NCLB containing a “strong definition[]. . .of highly qualified
teacher”:
Nothing in education is more important than ensuring a highly qualified teacher for every classroom. Research shows that what teachers know and can do is the most important influence on what students learn. Increased knowledge of academic content by teachers and effective teaching skills are associated with increases in student achievements.
147 CONG. REC. S4125, 4131 (May 2, 2001).
Accordingly, NCLB established a core “highly qualified” teacher definition
and set forth over a dozen provisions relating to specific HQT requirements.
1. NCLB Contains Numerous Overlapping Teacher Hiring, Distribution, Planning, and Reporting Requirements to Ensure That the 100% HQT Requirement is Met.
NCLB’s “highly qualified” teacher provisions can be divided into four major
categories: (1) the core “highly qualified” teacher requirement, (2) equitable
distribution requirements, (3) HQT “plan” requirements, and (4) public reporting
and accountability requirements.
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The core teacher quality provision requires that by the end of the 200520061 academic year, only “highly qualified” teachers will provide instruction in core academic classes.2 20 U.S.C. § 6319(a)(2). To ensure that states and districts
would be on track to meet the 100% HQT requirement, NCLB also requires that,
beginning with the 2002-03 school year, new hires in schools receiving Title I
funds (i.e., NCLB funding to supplement the educational needs of low-income
students) must meet the “highly qualified” standard. 20 U.S.C. § 6319(a)(1)-(2).
Second, where states and districts fall short in meeting the 100% HQT
requirement, NCLB mandates that poor and minority students not be taught by
inexperienced and non-HQTs at higher rates than other students. 20 U.S.C.
§ 6311(b)(8)(C).
Third, to meet these mandates, the Act requires that every state and every
school district develop plans to provide HQTs in all core academic classes and to
arrange for the equitable distribution of these teachers. 20 U.S.C. §§
6311(b)(8)(C), 6319(a)(2), 6311(a)(1) (state plans); §§ 6312(b)(1)(N), 6319(a)(3),
1 Defendants have acknowledged that states and districts are not meeting this timeline and have stated they will not withhold federal funds as long as states and districts are making good faith efforts to satisfy the 100% HQT requirement. See ER447, 662. 2 “Core academic subjects” are English, reading/language arts, math, science, foreign languages, civics and government, economics, arts, history, and geography. 20 U.S.C. § 7801(11); 34 C.F.R. § 200.55(c).
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6312(c)(1)(I) (district plans). District plans specifically must ensure that “[t]hrough incentives for voluntary transfers, professional development, recruitment programs, or other effective strategies, minority students and students from low-income families are not taught at higher rates than other students by unqualified, out-of-field, or inexperienced teachers.” 34 C.F.R. § 200.57(b)(2).
Finally, the Act sets forth several reporting requirements to ensure that parents, students, policy makers, and the public have accurate information regarding the presence, number and distribution of HQTs. Schools receiving Title I funds must inform individual parents when a non-“highly qualified” teacher teaches his or her child for more than four weeks. 20 U.S.C. § 6311(h)(6)(B)(ii). Annually, states and school districts are required to report publicly accurate information regarding the progress that schools, districts, and states are making towards meeting HQT requirements. 20 U.S.C. §§ 6311(h)(1)(C)(viii), 6311(h)(2), 6319(b)(1)(A). States, in turn, must provide this information to ED, (20 U.S.C. §§ 6311(h)(4)(G), 6319(b)(1)(B)), which then reports to Congress the nationwide statistics on “highly qualified” teachers (20 U.S.C. § 6311(h)(4)-(5)).
2. NCLB Defines a “Highly Qualified” Teacher as One Who “Has Obtained Full State Certification.”
In addition to requiring that all HQTs have a B.A. and competence in their subject matter, Congress defined “highly qualified” to mean that:
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(i) the teacher has obtained full State certification as a teacher (including certification obtained through alternative routes to certification) or passed the State teacher licensing examination, and holds a license to teach in such State, except that when used with respect to any teacher teaching in a public charter school, the term means that the teacher meets the requirements set forth in the State’s public charter school law; and
(ii) the teacher has not had certification or licensure requirements waived on an emergency, temporary, or provisional basis.
20 U.S.C. § 7801(23)(A) (emphasis added). On its face, the statute requires that a
“highly qualified” teacher already “ha[ve] obtained full State certification.”3
B. Congress Assigned to States the Role of Establishing Critical NCLB Standards, Including Each State’s Standard for Full Certification.
While NCLB mandates that all students achieve proficiency in math and
English by 2014 (20 U.S.C. § 6311(b)(2)(F)), the Act leaves it to each state to
determine the state academic content standards in those subjects that it wants
students to learn (20 U.S.C. § 6311(b)(1)(A)), the state academic assessments it
will use to assess students’ progress (20 U.S.C. § 6311(b)(3)), and the test scores
that signify “proficiency” in meeting the “state academic achievement standards”
(20 U.S.C. §§ 6301, 6311(b)(3)(C)(ii), 6311(b)(3)(v)). Similarly, the Act expressly
delegates to states the authority to determine teacher certification standards. 20
3 California does not have a single, summative “state teacher licensing examination,” nor do the great majority of states. Thus, the second option set forth in § 7801(23)(A)(i) rarely comes into play.
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U.S.C. § 7801(23)(A) (HQT is one who “has obtained full State certification. . . or passed the State teacher licensing examination”) (emphasis added); see also 20 U.S.C. § 6613 (teacher certification requirements should be “aligned with challenging State academic content standards”) (emphasis added).
Although Congress deferred to each individual state to set the standard in each of these areas, it mandated that each state must deliver that standard to all of its children. See, e.g., 20 U.S.C. § 6311(b)(1)(A)-(B); 20 U.S.C. § 6311(b)(3)(C)(i); 20 U.S.C. § 6319(a)(2).
C. ED’s Regulation Defines the Term “Highly Qualified” Teacher to Include Teachers Participating in Alternative Certification Programs and Only Working Towards Full State Certification. On December 2, 2002, ED issued final regulations redefining the term
“highly qualified” teacher. These regulations permit individuals who are merely “participating in an alternative route to certification program” and making “satisfactory progress toward full certification as prescribed by the State” (34 C.F.R. § 200.56(a)(2)(ii) (emphasis added)) but who have not yet “obtained full state certification” (20 U.S.C. § 7801(23)(A)) to be deemed “highly qualified.” The regulations expressly state that these individuals can only be certified to teach on a temporary basis not to exceed three years. 34 C.F.R. § 200.56(a)(2)(ii)(3). Specifically, the regulation provides:
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(a) In general (1) Except as provided in paragraph (a)(3) of this section, a teacher
covered under § 200.55 [which reiterates the statutory deadlines for meeting the HQT requirement] must –
i. Have obtained full State certification as a teacher, which may include certification obtained through alternative routes to certification; or
ii. (A) Have passed the State teacher licensing examination; and (B) Hold a license to teach in the State.
(2) A teacher meets the requirement in paragraph (a)(1) of this section if the teacher –
i. Has fulfilled the State’s certification and licensure requirements applicable to the years of experience the teacher possesses; or
ii. Is participating in an alternative route to certification program under which – (A) The teacher – (1) Receives high-quality professional development that is sustained, intensive, and classroom-focused in order to have a positive and lasting impact on classroom instruction, before and while teaching; (2) Participates in a program of intensive supervision that consists of structured guidance and regular ongoing support for teachers or a teacher mentoring program; (3) Assumes functions as a teacher only for a specified period of time not to exceed three years; and (4) Demonstrates satisfactory progress toward full certification as prescribed by the State; and (B) The State ensures, through its certification and licensure process, that the provisions in paragraph (a)(2)(ii) of this section are met.
(3) A teacher teaching in a public charter school in a State must meet the certification and licensure requirements, if any, contained in the State’s charter school law.
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(4) If a teacher has had certification or licensure requirements waived on an emergency, temporary, or provisional basis, the teacher is not highly qualified. 34 C.F.R. § 200.56(a) (emphases added). Under these regulations, a teacher-intraining with no prior training or experience teaching is deemed “highly qualified” on the day she enters an alternative certification program and begins to serve as a full-time classroom teacher. A first-day participant in an alternative certification program working towards full state certification and a thirty-year, fully-certified teaching veteran are equally considered “highly qualified” under the regulation, and states and districts are permitted to treat them identically for purposes of hiring, distribution, planning and public reporting.
D. California Does Not Consider Alternative Route Participants to Have Obtained Full State Certification But Labels Them “Highly Qualified” Pursuant to ED’s Regulation.
In California, prospective teachers initially earn full state certification (known as a “preliminary credential”) by completing either a traditional or an alternative route teacher preparation program. Through either type of program, new teachers must complete three sets of requirements to obtain full certification: (1) pedagogical training covering, inter alia, how to teach their subject matter/grade level, design curricula, manage a classroom, and meet the needs of English learners and special education students; (2) demonstration of subject-
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matter knowledge (typically a prerequisite requirement for program entry); and (3) completion of a practicum teaching students, either by “student teaching” as part of a traditional preparation program in which the candidate teaches alongside a “master teacher” or through an “internship” under an alternative program in which the individual teaches full-time as the sole classroom teacher. See CAL. EDUC. CODE § 44259 (citing CTC, Standards for Quality and Effectiveness for Teacher Preparation Programs for Preliminary Multiple Subject and Single Subject Teaching Credentials (March 2007), available at http://www.ctc.ca.gov/educatorprep/standards/AdoptedPreparationStandards.pdf, included at ER97). As noted, alternative programs differ from traditional programs primarily in that alternative route participants (“interns” in California) work full-time as the teacher of record while completing teacher preparation coursework at night and on weekends. By contrast, participants in traditional programs typically enroll in coursework fulltime at a university and complete supervised clinical work teaching alongside a master teacher on a part-time basis where they are not the teacher of record. Participants in both routes receive the same “preliminary” credential upon completing their programs. CAL. EDUC. CODE §§ 44259(b); 44274.2.
Once new teachers complete two years of successful teaching on a preliminary credential and a teacher “induction” program, they become eligible for
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the professional “clear” credential, which is the highest level of teaching credential issued by California and is only available to veteran teachers. CAL. EDUC. CODE §§ 44259(c); 44274.2. See also ER243.
The preliminary and professional clear credentials are California’s only types of full state certification for teachers and signify that the holder has fully met all preparation requirements applicable to their years of experience (i.e., as a brand new teacher or as a veteran). See CAL. EDUC. CODE §§ 44259; 44274.2. See also ER242-43. Below these full credentials, California issues several substandard teaching credentials and permits, including intern credentials, provisional intern permits, short term staff permits, and substitute permits. See ER245-61. As the chart in Plaintiffs’ Exhibit 17 (ER220) indicates, in California as in other states, there is an inverse relationship between the level of preparation an individual has received and the temporal and geographic restrictions placed on an individual’s credential: the greater the level of teacher preparation, the fewer restrictions placed on where and for how long one may teach.4 The preliminary and professional clear credentials authorize holders to teach their approved subject matter and grade level anywhere in the state for five years (the latter can be
4 In this way, the system of teacher licensing in California as well as in other states differs markedly from the licensing of attorneys. In contrast to teaching, there is no substandard legal license that permits a person to practice law as an independent attorney, even on a limited basis.
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renewed). See CAL. EDUC. CODE § 44251(b). The “intern” credential is
subordinate to these credentials as it permits individuals who have not completed
their alternative teacher preparation program to teach only in a single school
district and only for a period of two years. See CAL. EDUC. CODE §§ 44251(b);
44325; 44463; see also, e.g., ER376 (example of official internship credential).
Only after completing the alternative route program do interns graduate to obtain
the preliminary credential which authorizes teaching statewide. See CAL. EDUC.
CODE § 44259(b). See also ER93 (California Commission on Teacher
Credentialing acknowledgement that interns are not “fully-credentialed” like
preliminary and professional clear credential holders).
Moreover, as further indication of the inferiority of the intern credential,
California state law requires that districts hire preliminary or clear credential
holders whenever they are available ahead of intern credential holders. See ER93, 55; CAL. EDUC. CODE § 44225.7(a).5
According to the National Association of State Directors of Teacher
Education and Certification (“NASDTEC”), and as described in ED’s 2002 Annual
5 Governor Schwarzenegger recently signed legislation amending CAL EDUC. CODE § 44225.7 to further clarify that preliminary and professional clear credential holders are to be accorded hiring priority over intern credential holders. See Senate Bill 1186 (Scott) at Section 1, signed and chaptered September 28, 2008, attached as Exhibit A to Plaintiffs-Appellants Request for Judicial Notice (“RJN”) (October 6, 2008).
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Report on Teacher Quality, Meeting the Highly Qualified Teacher Challenge, most states have similar credentialing structures to California’s whereby individuals must complete pedagogical training in an approved traditional or alternative preparation program in order to receive the state’s “full” initial level of certification, generically referred to as the “level one” credential. ER699; see also RJN, Exh. A (§ 5, CAL. EDUC. CODE § 44835(b) (referencing synonymously “a preliminary or level one credential”). Thereafter, after completing additional requirements, such as a few years of successful teaching and perhaps some additional courses, teachers typically receive a second tier or “level two” full credential. Id.
In California, the State Board of Education has adopted “highly qualified” teacher regulations in order to implement NCLB. In doing so, the Board has adopted the “highly qualified” teacher definition as set forth in Defendants’ regulation—including defining participants in alternative route credentialing programs as “highly qualified” teachers for purposes of NCLB. CAL. CODE REGS. tit. 5, §§ 6101, 6110. The state regulations themselves acknowledge that interns do not hold a “full” credential. See, e.g., CAL. CODE REGS. tit. 5, §§ 6110 (“A teacher who meets NCLB requirements” is one who either is “currently enrolled in an approved intern program for less than three years or has a full credential”)
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(emphasis added). Thus, although California does not consider intern teachers fully-certified, it takes full advantage of Defendants’ regulation to consider them “highly qualified” for purposes of meeting NCLB’s requirements.
E. ED’s Regulation Undermines the Implementation of NCLB’s “Highly Qualified” Teacher Provisions, Especially in California Where Alternative Route Participants Disproportionately Teach in Underperforming, Low-Income, High Minority Schools. 1. Defendants’ Regulation Substantially Alters the Implementation of NCLB’s HQT Provisions.
Defendants’ regulation seriously impairs the implementation of the numerous provisions of NCLB designed to ensure that all children have access to “highly qualified” teachers, both nationwide and in California. First, as a result of Defendants’ regulation, California, its districts and schools currently place over 10,000 alternative route participants in core classrooms—including in the schools and classrooms that Plaintiffs attend—and count them as “highly qualified” teachers on the first day they enroll in their alternate route training programs. CAL. CODE REGS. tit. 5, §§ 6101, 6110; ER518. See also ER371-72¶6, 10; ER380¶4; ER389¶4; ER397-398¶¶5-6, 10; ER410¶7; ER414¶¶4-5, 7; ER425¶¶4, 6; ER436¶¶4-5, 7; ER363-64¶¶9, 11; ER348-49¶¶10-11. Other states, districts and schools nationwide are given the same authority to label their alternative route
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teachers-in-training as “highly qualified” by Defendants’ regulation.6
Second, because teachers still participating in alternative routes are labeled
“highly qualified,” California and its districts are able to place interns
disproportionately in low-income and high minority schools without regard to
NCLB provisions requiring the equitable distribution of non-HQTs. See, e.g.,
ER372¶10; ER398¶10; ER410¶7; ER414¶7; ER425¶6; ER436¶7; ER330¶¶11-13,
339-42). See also ER452-505 (California Department of Education data
demonstrating the percentage of intern teachers at Plaintiffs’ schools as well as
these schools’ disproportionate concentration of poor and minority students);
ER467, 509, 511 (demonstrating intern teacher percentages at schools and in
districts attended by members of organizational plaintiffs). Similar results are
permitted nationwide as a result of Defendants’ regulation.
Third, state and district plans for meeting the HQT requirement are
substantially altered when teachers-in-training through alternative certification
programs are considered “highly qualified.” The data and the premises upon
6 Defendants do not maintain data on how many HQTs nationally qualify as such through their participation in alternative route certification programs. Based on an annual graduation rate of 59,000 teachers from alternative route programs nationally, see ER756, and the fact that alternative route participants typically take two (and sometimes three) years to complete their programs, Plaintiffs estimate that over 100,000 individuals are participating in alternative route programs nationally at any one time and are considered “highly qualified.”
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which these plans are based ignore the significantly greater objectives that must be met were alternative route participants not deemed “highly qualified.” In particular, Defendants’ regulation deprives the Plaintiffs, the Plaintiff organizations and their members, and the public of the benefit of state and local district plans to redress the hiring and placement of non-“highly qualified” teachers. ER372¶11; ER381¶7; ER390¶9; ER398-99¶11; ER410 ¶8; ER415¶9; ER426¶8; ER437¶9; ER363-64¶11; ER348-49¶11.
Finally, as a result of Defendants’ regulation, parents, students, policymakers and the public receive inaccurate information about students’ access to HQTs. Parents in schools receiving Title I funds for low-income students—over half of all 9,000 odd public schools in California7—do not receive a letter notifying them when their child has been taught for four or more weeks by an alternative route participant, as would otherwise be required under NCLB. See, e.g., ER389-90¶¶7, 9. District and state “annual report cards” containing information on the percentages of classes taught by HQTs and progress towards meeting the HQT goal show misleadingly higher numbers of HQTs because of ED’s regulation. Similarly, the Secretary’s annual report to Congress regarding the
7 See Ed Source, California’s School Accountability System Under the Federal No Child Left Behind Act (NCLB) (August 2007), available at: http://www.edsource.org/pub_edfct_ayp.cfm.
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progress made towards meeting the HQT goal is based on numbers inflated by district and state counts of alternative route teachers-in-training as HQTs. All of the individual Plaintiffs in this action—as well as the organizational Plaintiffs and their members—are among those deprived of accurate information about non“highly qualified” teachers in their school, district, state, and nation, thereby inhibiting their ability to hold schools accountable for delivering fully prepared teachers. See ER372¶11; ER381¶7; ER390¶9; ER398-99¶11; ER410¶8; ER415¶9; ER426¶8; ER437¶9; ER363-64¶11; ER348-49¶11.
2. Since ED Issued the Challenged Regulation, the Number of Interns in California Has Significantly Increased, With These New Interns Disproportionately Assigned to Teach Low-income, Minority Students.
Since Defendants issued the challenged regulation in 2002, the number of interns in California has risen by approximately 50%, from 7,251 in 2001-2002 to 10,716 in 2006-2007. See ER516, 518. This significant increase has coincided with a significant decrease in the number of emergency-credentialed teachers, who are not considered “highly qualified” under NCLB or its implementing regulations. See ER524.
It is undisputed that California’s intern teachers are inequitably distributed, with a disproportionate number assigned to teach in underperforming schools serving high concentrations of low-income, minority students. Indeed, nearly a
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quarter of California’s interns (23%) teach in the 10% of schools in the state serving the highest concentrations of minority students (98-100% non-white), while less than 2% teach in the decile of schools with the lowest minority concentration. ER330¶13, 340. One of the charts produced below by the state’s leading teacher demographer, Dr. Patrick Shields, dramatically shows how the percentage of interns climbs as a school’s minority population grows:
ER340; see generally ER327-330¶¶4-10. If interns in California were distributed without regard to student race, then the line on this chart would be flat or the data points would be randomly distributed. Instead, intern assignment increases sharply as the percentage of minority students in a school increases. Ultimately, students in the 10% of schools which are nearly entirely minority see five times as many
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interns on staff as students in the decile with the lowest minority concentration. ER339-340.
Intern distribution by school achievement shows a similarly disturbing pattern. Sixty percent of interns serve in the lowest-performing 30% of schools in the state based on California’s Academic Performance Index (“API”), while only 10% serve in the highest-performing 30% of schools. ER330¶13, 344.
Interns are also disproportionately concentrated in schools serving predominantly poor students. Sixty-two percent of interns are concentrated in the poorest half of the state’s schools, whereas only 13% of interns are in the least poor quartile. ER330¶11, 634; see also ER330¶13, 342.
Plaintiffs’ experiences are reflected in these statistics. ER452-505, 665-669; see also ER757-760¶¶66-71. Indeed, five of the individual high school student plaintiffs have already been taught by more than one intern teacher. ER414¶¶4-5; ER425¶4; ER436¶¶4-5; ER397¶¶5-6; ER371¶6. Plaintiff Jazmine J. was taught by three intern teachers in her freshman year alone. ER414¶5.
In short, Defendants’ inclusion of novice teachers-in-training still working towards full certification as “highly qualified” has significantly increased the number of novice, under-certified teachers, particularly in poor, poor-performing and minority-dominated schools.
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SUMMARY OF ARGUMENT The District Court erred in concluding both that Congress’s definition of the term “highly qualified” teacher as one who “has obtained full State certification as a teacher” was ambiguous and that ED’s regulation redefining this term to include individuals “participating in” alternative certification programs and merely making “progress toward” full state certification was a reasonable exercise of agency authority. The District Court erroneously reasoned that Congress did not define what it meant by “full State certification as a teacher (including certification obtained through alternative routes to certification),” and thus Congress’s definition of the term “highly qualified” teacher was ambiguous and left a policy gap for ED to fill through regulation. The statute’s plain language, legislative history, structure, and purpose demonstrate Congress’s unambiguous intent that all children—and especially poor and minority children—be taught by teachers who have obtained what their state considers the state’s full level of teacher certification—not by provisionally-certified teachers who are only making “progress toward full certification as prescribed by the State”. See Argument § I.A. The District Court misread the statute’s parenthetical, which does not create any ambiguity but rather clarifies that both traditional and alternative certification
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programs are equally satisfactory routes to obtaining “full State certification” (20 U.S.C. § 7801(23)(A)). See Argument § I.B.
The District Court also ignored the plain language of NCLB precluding from “highly qualified” designation teachers like California’s interns with only temporary or provisional certifications. The court below further ignored ED’s damning pre-litigation positions in the Administrative Record which explicitly acknowledge that “full State certification” is not ambiguous, that alternative route teachers do not have “full State certification,” and that ED’s regulation qualifies these teachers-in-training only by creating an administrative exception to the statutory HQT standard. See Argument § I.A.5 and I.C. Because there is no statutory authority for ED’s exception, the regulation must be struck down as in conflict with the unambiguous and exclusive “full State certification” standard.
Even if Congress’s HQT definition were ambiguous, the District Court erred in finding ED’s regulatory redefinition of the term reasonable and consistent with NCLB’s purposes. By mislabeling tens of thousands of novice teachers-in-training as “highly qualified,” the regulation perverts Congress’s statutory vision of ensuring equity and accountability with respect to students’ access to fullyprepared, “highly qualified” teachers and thus disserves the children and parents whom the Act sought to benefit. See id. § II.A. Further, Congress’s support for
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specific alternative route certification programs elsewhere in the Act—by funding a pipeline to train new teachers who are en route to becoming fully-certified and “highly qualified”—is entirely consistent with its goal of helping schools, districts, and states meet NCLB’s 100% HQT goal as quickly as possible. See id. § II.B.
Finally, the District Court erred in imputing legislative acquiescence to the challenged regulation based on Congress’s failure to reverse it in the past five years. The issue here has never been expressly considered and rejected by Congress, and Defendants’ regulation distorted the reporting to Congress that might have prompted a response. See id. § III.
ARGUMENT Chevron v. Natural Resources Defense Council sets forth the applicable legal standard for judicial review of an administrative agency’s construction of a statute it administers. Chevron, U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 842-43 (1984). This standard involves a two part test. First, a court must consider “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-843. See also Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997).
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Second, and only if the statute is silent or ambiguous on the question at issue, courts must defer to the agency’s reasonable interpretation of the statute as long as that interpretation is consistent with the purpose of the statute. Chevron, 467 U.S. at 843-45. However, “an agency’s interpretation of a statute is not entitled to deference when it goes beyond the meaning that the statute can bear.” MCI Telecomms. Corp. v. AT & T Co., 512 U.S. 218, 229 (1994).
As set forth below, this Court need look no further than the unambiguously expressed intent of Congress under the first prong of Chevron. Doing so leads to the ineluctable conclusion that ED’s regulation permitting teachers still “participating in” training programs and only making “progress toward full [State] certification” unambiguously conflicts with the higher Congressional HQT standard of “full State certification”. This is so regardless of how any given state may define full certification and requires that ED’s regulation be voided. Should the Court for any reason consider the plain language of the statutory standard ambiguous, even under Chevron’s deferential second prong, ED’s regulation cannot be upheld as a reasonable interpretation consistent with the Act’s purposes. I. THE DISTRICT COURT ERRED IN CONCLUDING THAT CONGRESS’S
DEFINITION OF A “HIGHLY QUALIFIED” TEACHER AS ONE WHO “HAS OBTAINED FULL STATE CERTIFICATION AS A TEACHER” IS AMBIGUOUS. A. Congress’s Use of the Term “Full State Certification” Established an
Unambiguous Standard for HQTs. 28
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1. The District Court Erred in Ignoring the Plain Language of the Phrase “Full State Certification.”
In a single paragraph of analysis, the District Court concluded that NCLB’s
term “full State certification” was ambiguous. The sum total of the District
Court’s analysis under the first Chevron prong was as follows:
Congress did not define “full State certification as a teacher (including certification obtained through alternative routes to certification).” Nor did Congress establish standards for determining which teachers will be considered to have “full State certification,” or unambiguously state that a teacher who is participating in an “alternative route” program cannot be highly qualified because he/she has not yet completed that program. Thus, Congress has not “directly spoken to the precise question at issue.” Chevron, 467 U.S. at 842. Because it is not clear what is meant by “full State certification,” the court must proceed to the second step of the Chevron analysis.
ER9:13-20. In failing to apply any of the common tools of statutory construction
in its analysis under Chevron’s first prong and instead basing its conclusion on
erroneous inferences drawn from what Congress did not do, the District Court
committed reversible error.
It is well-settled that courts must apply “traditional tools of statutory
construction” to determine whether “Congress had an intention on the precise
question at issue.” Chevron, 467 U.S. at 843 n.9. Where an issue of statutory
construction has come to litigation, rarely will Congress’s intent be explicitly
spelled out in marquee letters, a standard the District Court erroneously applied. 29
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ER9 (“Congress did not. . . unambiguously state that a teacher who is participating in an “alternative route” program cannot be highly qualified”). Rather, a court must look to the plain, ordinary meaning of the statute’s words, its legislative history, and its overall purpose and structure to determine Congress’s intent. Gen. Dynamics Land Sys. v. Cline, 540 U.S. 581, 600 (2004).
The District Court disregarded the cardinal rule of statutory construction which requires a court to turn first to the plain language of a statute itself. See e.g., Russello v. United States, 464 U.S. 16, 20-21 (1983); Johnson v. Aljian, 490 F.3d 778, 780 (9th Cir. 2007) (following “the common practice of consulting dictionary definitions to clarify their ordinary meaning” (internal citations omitted)). Here, the court explicitly rejected according a common, ordinary meaning to the term “full,” (see ER12, n.3). In fact, the word “full” has a plain, commonly understood and unambiguous meaning: “(1) completely filled; containing all that can be held; filled to the utmost capacity…(2) complete; entire; maximum….”8 As the Supreme Court has noted, “[a]n obviously broad word that [Congress] went out of its way to add to an important statutory definition”—here, the term “full”—“is
8 Dictionary.com Unabridged (v 1.1). Random House, Inc., available at http://dictionary.reference.com/browse/full (last visited Mar. 6, 2008).
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precisely the sort of provision that deserves a respectful reading.” Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 705 (1995).
The term “full” in turn modifies “State certification as a teacher.” 20 U.S.C. § 7801(23)(A)(i). This latter phrase—also ignored by the District Court— unambiguously references the teacher certification laws established by each state. Applying the common, ordinary meaning of “full” to the phrase “State certification as a teacher” reveals Congress’s unambiguous intent from the statute’s plain language: that all children receive instruction from teachers who (in addition to a B.A. and subject matter competence) have obtained the full, maximum, most complete level of certification granted by the state in which the children attend school.
2. The District Court Erred in Ignoring the Direct Conflict Between ED’s Regulation and the Statute’s Plain Language Awarding “Highly Qualified” Status Only to Individuals Who “Ha[ve] Obtained” Full State Certification.
In reaching the erroneous conclusion that “the regulation does not conflict with the statute” (ER11), the District Court failed entirely to consider the most fundamental and direct conflict of all: the statute’s explicit requirement that HQTs “have obtained full State certification.” Nowhere does the District Court’s order address the unambiguous conflict between the statutory requirement that HQTs “have obtained full state certification” (20 U.S.C. § 7801(23)(A)(i)) (emphasis
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added)) and the challenged regulation, which grants HQT status to an individual who “is participating” in an alternate route and merely making “progress toward full certification as prescribed by the State” (34 C.F.R. § 200.56(a)(2)(ii)) (emphases added).
That Congress discussed full State certification entirely in the present perfect or past tense—“has obtained” or “obtained” through alternative routes—obviously confirms that “full certification” here cannot connote an inchoate or incipient status as Defendants’ regulation would have it. Simply put, being or having become is not the same as becoming; full is not the same as becoming filled. Having obtained full state certification is a more advanced state of being than “demonstrat[ing] satisfactory progress” toward it, and the lower court erred in ignoring the plain implication of the verb tenses Congress chose.
3. The District Court Erred in Ignoring the Legislative History Underlying the Phrase “Full State Certification.”
The legislative history confirms Plaintiffs’ reading of the phrase “full State certification” and the importance of the word “full.” Both H.R. 1 (the House version eventually signed into law) and S. 1 (the parallel Senate version that supplied key provisions to the final Act) contained a heightened standard for teachers by requiring that teachers who are “fully qualified” (the House’s term) or “highly qualified” (the Senate’s) have state certification. H.R. 1 at 782-83
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(introduced Mar. 22, 2001) (defining “fully qualified” to mean “the teacher has obtained State certification”) (see ER281-282); S. 1 at 283-84 (introduced Mar. 28, 2001) (defining “highly qualified” to mean the teacher “is certified or licensed by the State involved”) (see ER284-285).9 When the Conference Committee came together to hammer out the final legislation, it adopted the Senate’s term “highly qualified” and clarified its intent by inserting the word “full” before “State certification” and adding the provision (now codified at 20 U.S.C. § 7801(23)(A)(ii)) excluding individuals who have had regular certification requirements waived on an emergency, temporary, or provisional basis from “highly qualified” teacher status. CONF. REP. NO. 107-334 to accompany H.R. 1 at 544-45, 1032-34 (Dec. 12, 2001) (see ER290, 293-94).
Though presented below, the District Court utterly failed to consider this critical legislative history in reaching its crucial initial determination under the first Chevron prong. See ER9:13-20. In fact, the legislative history only further underscores Congress’s unambiguous intent. In making final amendments to the bill, Congress clarified and emphasized that only teachers with “full” State
9 See also H.R. Rep. No. 107-63, at 223-224 (May 14, 2001) (ER298), H.R. 1, 107th Cong., at 921-922 (1st Sess. 2001) (May 23, 2001) (ER302-303) and S. Rep. No. 107-7, at 283-284 (June 14, 2001) (ER306-307) (later drafts of these bills maintaining, in pertinent part, their respective definitions pre-Conference Committee).
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certification and without “emergency, temporary, or provisional” certification should be considered “highly qualified.” Because “a conference report represents the final statement of terms agreed to by both houses, next to the statute itself it is the most persuasive evidence of congressional intent,” Demby v. Schweiker, 671 F.2d 507, 510 (D.C. Cir. 1981); accord Sierra Club v. Clark, 755 F.2d 608, 615 (8th Cir. 1985), and should be accorded great weight. Id. In failing to give Congress’s addition of the term “full” and its explicit prohibition against “emergency, temporary, or provisional” teachers any meaning at all, the District Court committed legal error.
Subsequent comments by the House and Senate Education Committees reinforce the conclusion that Congress’s actions in conference were not idle ones. Both the House and Senate Education Committees strongly opposed ED’s proposed regulation defining the term “highly qualified teacher” when it was noticed in the Federal Register (see ER677). Comments on ED’s proposed regulations by the majority members of the Senate Health, Education, Labor and Pensions Committee (HELP) stated that: “[t]he provision exempts teachers with alternative certification from the certification requirement. This directly contradicts the statute. The statutory language is clear that all teachers must be
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certified. This should be struck.” ER692 (emphasis added). The House Democratic Committee Staff expressed similar concerns:
This provision. . . specifically exempts teachers in alternative certification programs from obtaining certification if a State deems they are permitted to teach in the classroom. This would allow uncertified teachers to be considered highly qualified. This contradicts the statute. . . . ER684 (emphasis in original). Additionally, Senator Kennedy, chairman of the HELP Committee and a key player in securing NCLB’s passage, sharply criticized ED’s earlier June 2002 draft guidance (see ER702) defining the HQT term similar to the proposed regulation: “In the draft guidance. . . .[a]lternate route teachers can be considered highly qualified while holding a provisional certification while they are working to obtain full certification. This is inconsistent with the definition in [NCLB] which holds the same standards for all teachers.” 148 CONG. REC. S 5341, 5342-43 (June 11, 2002) (emphasis added) (see ER310). It is a fundamental canon of statutory construction that courts must “give effect, if possible, to every clause and word of a statute rather than to emasculate an entire section.” Turtle Island Restoration Network v. Nat’l Marine Fisheries Serv., 340 F.3d 969, 975 (9th Cir. 2003) (internal citations omitted) (finding against agency under the first Chevron prong). Here, the District Court’s reading ignored Congress’s purposeful and critical addition of the word “full” and the
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related provision prohibiting provisionally certified teachers as HQTs. See also Argument, infra, at I.C. (further explicating the meaning of the latter provision).
4. The District Court Failed to Understand that Congress’s Requirement of “Full State Certification” References the Laws of All Fifty States.
As noted, the District erred in wholly disregarding a second key adjective modifying the word “certification”: the requirement that “highly qualified teachers” have “full State certification.” ER9, 11-12 (emphasis added). In doing so, the lower court fatally misunderstood the longstanding relationship between the federal government and the states with respect to public schools as further reflected in NCLB itself. Public education in the United States has historically been a matter of state and local control, with the federal government taking only a limited role.10 NCLB, while perhaps the most expansive piece of federal education legislation in the past forty years, continues this tradition of federalism by leaving to each state the authority to determine the critical academic content, proficiency, and teacher quality standards at the core of the Act. Facts, supra, at B; see also Goodwin Liu, Education, Equality, and National Citizenship, 116 YALE L.J. 330, 401-402, n.340-342 (“[T]he operative provisions of the statute—in particular, its testing and accountability requirements—address student ‘proficiency on
10 See, e.g., Freeman v. Pitts, 503 U.S. 467, 490 (1992) (“As we have long observed, local autonomy of school districts is a vital national tradition” (citations omitted)).
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challenging state academic achievement standards and state academic assessments.’ . . .[E]ach state has virtually unfettered discretion to define and revise the standards for measuring proficiency.”) (internal citations omitted; emphasis in original); see also 20 U.S.C. § 7801(23)(A) (as to teacher certification standards).
ED has always understood each state to have autonomy over what it decides are the requirements a teacher must complete to obtain “full State certification” as a teacher. The best indication of this is the challenged regulation itself, which concedes that alternate route teachers are only making “progress toward full certification as prescribed by the State.” 34 C.F.R. § 200.56.(a)(2)(ii)(A)(4) (emphasis added).
Repeatedly, Defendants’ pre-litigation discussions of “full state certification” in the Administrative Record and in their subsequent guidance to states echo this conclusion. ED rejected criticisms that its proposed regulations failed to define more fully what it means to have licensure “waived on an emergency, temporary, or provisional basis,” reasoning that “[s]tate certification and licensure is a matter of State law and policy, and hence the definition of these terms is left to State decisionmaking.” ER680.
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Defendants’ guidance to states has explicitly clarified that the term “full
State certification” is an unambiguous term whose meaning is determined by the
laws of each of the fifty states as to how a teacher may be considered fully-
certified by that state. An example of such guidance provides:
C-6. What is meant by “full State certification”? Full State certification is defined by State policy. . . . States are free to redefine, in accordance with State law, their certification requirements (for example, they may streamline requirements if they determine that they are too onerous) or create non-traditional approaches to certification. . . . ER278 at C-6 (emphasis added).11
Contrary to Congress’s clear intent and NCLB’s entire legislative scheme—
and indeed the history of federal legislation in public education—the District
Court’s decision erroneously permits the U.S. Department of Education to lower an
unambiguous “full certification” state standard. Where California—and most
states—award “full State certification” only to individuals who have completed a
teacher preparation program, Defendants’ regulation impermissibly overrides this
state determination by permitting mere program participants to receive HQT status.
11 Plaintiffs relied below on this September 2003 guidance manual for states and districts, which Defendants voluntarily produced, and do so again on appeal. Such extra record evidence, from the agency itself no less, is appropriate to explain technical terms and avoid a frustration of judicial review. Southwest Ctr. for Biological Diversity v. U.S. Forest Service, 100 F.3d 1443, 1450 (9th Cir. 1996).
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In California, where all of the Plaintiffs reside and attend school, “full State certification” requires completion of either a traditional or an alternative teacher preparation program. See Facts, supra, at D. The challenged regulation is illegal precisely because it permits a state like California, which requires completion of a teacher preparation program for full state certification, to report and treat as “highly qualified” those teachers who have not yet achieved California’s level of full certification.
5. ED Consistently Agreed Pre-Litigation That “Full State Certification” Unambiguously Means an Individual Who Has Fully Met the State’s Certification Requirements Relative to the Individual’s Years of Experience and Does Not Encompass Alternate Route Participants.
The court below adopted wholesale Defendants’ new post-litigation position that the phrase “full State certification” is ambiguous as to whether it includes alternative route program participants. ER9:13-20. In fact, neither the court below nor this Court owe any deference to Defendants’ “post hoc litigating position, adopted by counsel for [the agency]” (Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212-213 (1988)), particularly where this position “is flatly contradicted by [the agency’s] past actions” (Int’l Bhd. of Teamsters v. Daniel, 439 U.S. 551, 565568 (1979)).
Incredibly, without explanation or analysis, the District Court ignored the avalanche of record evidence confirming the lack of ambiguity over the meaning
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of the phrase at the center of this case. Prior to this litigation, ED consistently took
the position that Congress’s “full State certification” standard was readily
discernible—indeed that there was a national consensus that states typically require
pedagogical program completion to earn “full” certification. Facts, supra, at D;
ER699 (Meeting the Highly Qualified Teachers Challenge: The Secretary’s Annual Report on Teacher Quality (2002)).12 ED consistently explained to states and
districts that to obtain “full State certification,” individuals must fully meet their
state’s certification requirements relative to the individual’s years of experience.
Consistent with this position (and with Plaintiffs’), ED always acknowledged that
“full State certification” does not include individuals participating in an alternative
route program.
In its draft guidance to states issued in June 2002, for example, in response
to the question “What is meant by ‘full State certification’?,” ED stated:
In the context of the definition of a highly qualified teacher, “full State certification” means that the teacher has fully met those State requirements that apply to the years of experience the teacher possesses. For example, these requirements may vary for first year teachers and veteran teachers.
ER709 at C-2 (emphasis added). As noted, in California, the only credential that
can be obtained by a brand new teacher who has fully met all certification
12 Thus, Congress did not need to fill out the phrase “full State certification” any further. See Miles v. Apex Marine, 498 U.S. 19, 32 (1970) (“We assume that Congress is aware of existing law when it passes legislation.”).
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requirements is a “preliminary” credential, while a fully-certified veteran receives a “professional clear” credential. See Facts, supra, at D. Alternate route program participants in California, by definition, have not “fully met” the certification requirements applicable to brand new teachers precisely because they have not yet completed their pedagogical training and satisfied that core certification requirement.
Indeed, the challenged regulation itself proves the point by conceding that teachers “participating in alternative route[s]” are only making “progress toward full certification” as prescribed by the various states’ standards. 34 C.F.R. § 200.56.(a)(2)(ii)(A)(4).13 Similarly, 34 C.F.R. § 200.56(a)(2) sets out two ways a teacher with a B.A. and subject matter competence may be considered “highly qualified.” The first, clarifying Congress’s definition, provides that a “highly qualified” teacher is one who “[h]as fulfilled the State’s certification or licensure requirements applicable to the years of experience the teacher possesses.” 34 C.F.R. § 200.56(a)(2)(i). The second—the unlawful provision challenged in this suit—provides that a “highly qualified teacher” is one “participating in an
13 See also ER709 Response to Question C-3 (where Defendants also describe alternate route teachers as “making…progress toward full certification”) and also id. Response to Question C-2 (where Defendants did not include alternate route teachers within the definition of “full state certification” but left them for separate treatment under Question C-3).
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alternative route to certification program. . . .” 34 C.F.R. § 200.56(a)(2)(ii). Notably, these two different routes are separated by the disjunctive “or,” making it clear that an individual “participating in” an alternative route program, by definition, has not “fulfilled the State’s certification and licensure requirements.”
The appendix to the final regulation further demonstrates that ED’s true understanding of the term “full State certification” accords with Plaintiffs’, and that prior to this litigation, Defendants never considered alternate route teachers to have full state certification. When comments to the proposed regulation criticized ED for labeling alternate route teachers as “highly qualified,” ED responded in the Federal Register: “we do not believe that Congress intended that teachers in alternative route programs would be unable to teach until they had obtained full State certification,” ER680 (emphasis added). As such, Defendants then reasoned, they felt compelled to create “one exception” to the requirements of full state certification and no provisional certification. ER680-681.
Further, in the September 2003 guidance to states on NCLB teacher quality provisions, ED explained in response to the question “What is meant by ‘full State certification’?”:
Full State certification is defined by State policy. . . . For example, if State law so permits, a State may determine that an individual is fully certified if he or she has passed a rigorous assessment of his or her subject matter mastery, such as one of the assessments currently being developed by the
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American Board for Certification of Teacher Excellence. Such nontraditional approaches to full State certification are different from alternative route to certification programs (see C-7 below) because, in the former, the candidate is fully certified before he or she starts teaching.
ER278 at C-6 (emphasis added). Thus, ED again expressly and unambiguously
acknowledges that teachers participating in alternate route programs are not within
the definition of “full State certification” but exist as an administrative creation
outside of it.
Based on these Record statements, it is clear that there is no true dispute
over the intent and meaning of “full State certification.” The phrase means a
teacher has fully met the state’s certification requirements applicable to his or her
years of experience. Unless and until a state makes the unlikely decision to give
mere alternate route program participants the same full credentials as teacher
preparation program graduates, teachers still completing their pedagogical training
in alternative certification programs have not fully met their state’s certification
requirements.14
14 Note, ED agrees that the “full State certification” phrase obviously also includes brand new teachers who fully meet the certification requirements applicable to new teachers with no experience (like new preliminary credential holders in California) and not just veteran teachers (like professional clear credential holders). This reading (set forth in the unchallenged portion of the regulation, see 34 C.F.R. § 200.56(a)(2)(i)) makes perfect sense and, indeed, is the only possible reading of Congress’s requirement that HQTs have “full State certification.” Otherwise, no state or district would ever be able to develop a supply of new teachers to fill
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B. The District Court’s Interpretation of the Parenthetical “(Including Certification Obtained Through Alternative Routes to Certification)” Is Erroneous and Conflicts With ED’s Prior Interpretations in the Record.
The District Court rejected Plaintiffs’ interpretation of the parenthetical
modifying “full State certification” as rendering the parenthetical superfluous,
reasoning:
If. . . Congress intended that participants in “alternative route” programs have already completed a teacher-training program [before being labeled “highly qualified”], that objective could have been accomplished by the words “full State certification”. . . Alternatively, if Congress wanted to preclude participants in “alternative route” programs from obtaining “full State certification,” it could have done so by inserting the word “after” in place of “through.”
ER12. The court’s interpretation of the parenthetical ignores the principles of
statutory construction and Defendants’ own prior interpretation of the parenthetical
in the Administrative Record.
A plain reading of the parenthetical recognizes that it serves to illustrate only
the phrase “full State certification as a teacher.” That fact and its use of
“including” makes clear that whatever exists within the parenthetical is but a
openings when veterans retire, move or pass away and at the same time comply with NCLB’s 100% HQT requirement. Such a reading also prevents rendering other provisions of NCLB superfluous. For example, NCLB requires that poor and minority students have equal access to experienced, as well as highly qualified teachers. 20 U.S.C. § 6311(b)(8)(C). If HQTs were, by definition, experienced, such a requirement would be unnecessary.
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subset of the referenced “full State certification” standard. It makes perfect sense that Congress sought to clarify that non-traditional, alternative routes were equally satisfactory routes to earning “full State certification” as traditional teacher certification programs. Whichever equally satisfactory route a prospective teacher chose to pursue, however, Congress’s definition of the term “highly qualified teacher” is clear: one had to first complete the requirements for “full State certification”—which in California means (and which ED has always understood to mean in other states) completion of either a traditional or an alternative teacher preparation program—in order to be considered “highly qualified.”
In ED’s guidance to states implementing NCLB, ED has always taken the same position as Plaintiffs: that the parenthetical merely clarifies that full state certification can be obtained through either traditional or alternative routes. See ER709 (June 2002 Guidance) (clarifying that a “highly qualified” teacher is one “who has obtained full State certification (whether he or she has achieved certification through traditional or alternate routes”); ER236 at B-2 (same).
At most, the parenthetical can be read to mean that if a state accords an individual full state certification during participation in an alternative route program (and Plaintiffs are aware of none that do), that individual is fully-certified. If, however, a state grants full certification only after completion of an alternative
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route program (as California does), the individual must complete that alternative route in order to be considered fully-certified. What the parenthetical cannot mean is what the court below concluded: even where a state has precluded alternative route participants from its full level of certification, the state may nonetheless consider teachers-in-training through alternative routes as having obtained full certification under the laws and policies of that state. This non-sequiter would allow the clarification provided in the parenthetical to vitiate the core point of the statutory provision in question.
C. The District Court Ignored the Direct Conflict Between ED’s Regulation and Congress’s Explicit Exclusion of Teachers Who Have “Emergency, Temporary, or Provisional” Certification From the “Highly Qualified” Definition. The District Court’s opinion failed to address yet another obvious conflict
between the statute and the challenged regulation. The Act specifically excludes from the definition of “highly qualified” those teachers who have had “certification or licensure requirements waived on an emergency, temporary, or provisional basis.” 20 U.S.C. § 7801(23)(A)(ii). This provision emphasizes the clear congressional declaration in section 7801(23)(A)(i) that teachers must have already “obtained full State certification” or licensure to be deemed “highly qualified.” Id. (emphasis added). Yet ED’s regulation permits participants in alternative route teacher certification programs to be deemed “highly qualified” only on a
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provisional basis “not to exceed three years.” 34 C.F.R. § 200.56(a)(2)(ii)(A)(3).
The notion that a temporary or provisional certification “not to exceed three years”
is equivalent to “full State certification” is refuted merely by stating it.15
ED itself admits this irreconcilable conflict between its regulation—
certifying alternative route participants as “highly qualified” for a limited period of
only three years—and Congress’s exclusion of “emergency, temporary, or
provisional[ly]” certified teachers from the definition of “highly qualified.” In the
rulemaking history, ED concedes that its regulation permitting alternative route
participants to be labeled “highly qualified” for up to three years is the “one
exception” to the statutory exclusion of “emergency, temporary, or provisional[ly]”
credentialed teachers from the definition of “highly qualified”:
We add only that with one exception the Secretary interprets the phrase “waived on an emergency, provisional, or temporary basis,” to encompass any form of a waiver, by whatever name a State uses, under which the State
15 Indeed, in California, it is indisputable that intern credentials are both “temporary” in that they authorize service for only two years (see CAL. EDUC. CODE §§ 44251, 44325, 44455) and “provisional” in that they limit service to a single school district (see CAL. EDUC. CODE §§ 44325, 44463). In contrast, full certification in California comes in the form of preliminary and professional clear credentials, which have no geographic limit and are valid for a period of 5 years (renewable for clear credential holders). See CAL. EDUC. CODE §§ 44259, 44274.2; CAL. CODE REGS. tit. 5, § 80413. The five-year duration of the validity of preliminary and professional clear credentials is the maximum duration of any credential currently issued in the state. All of California’s other teaching authorizations—valid for only one or two years—must be considered “temporary” by comparison. See ER 220.
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permits a teacher to teach without having obtained full certification or licensure applicable to the years of experience the teacher possesses. That exception is for teachers in alternative routes to certification consistent with § 200.56(a)(2)(ii).
ER680-681. ED’s rationalization of the regulation goes further:
…in order to ensure that alternative route programs do not become longterm vehicles for waiving State requirements for full certification, it is reasonable to establish a maximum period—three years—in which a teacher in an alternative route can be considered to be fully certified without having received State certification. Id.
ED’s public rationale for the challenged regulation is notable for three
reasons. First, ED acknowledges that the challenged regulation grants participants
in alternative route programs a waiver of state requirements for full certification,
and justifies the three year limitation as a safeguard to prevent long-term misuse of
this loophole. Second, ED concedes that the challenged regulation has created “an
exception” to Congress’s explicit statutory prohibition on waivers of the “full State
certification” requirement—one for which the Appendix provides policy rationales
but no legal authority. Third, ED—as it has consistently done throughout the
Administrative Record—once again recognizes that alternative route participants
have not yet obtained full state certification. In failing to address this damning
regulatory history in which ED blatantly and publicly acknowledged the obvious
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conflict between the statute and the regulation, the District Court committed legal error.
In sum, Congress’s definition of the term “highly qualified teacher” as one who “has obtained full State certification as a teacher (including through alternative routes to certification)” and who “has not had certification or licensure requirements waived on an emergency, temporary, or provisional basis,” (20 U.S.C. § 7801(23)(A)) is unambiguous. The statute’s plain language, legislative history, structure, and purpose demonstrate Congress’s unambiguous intent that all children, but especially poor and minority children, be taught by teachers who have obtained their state’s fullest level of teacher certification based on their years of experience—not by teachers-in-training who are still making “progress toward full certification” (34 C.F.R. § 200.56(a)(2)(ii)). The lower court’s finding of ambiguity—which failed to utilize traditional tools of statutory interpretation, neglected to address the fundamental conflict between the statute and the regulation itself, and ignored ED’s damning pre-litigation positions in the Administrative Record—constitutes manifest legal error. II. EVEN ASSUMING THE STATUTE IS AMBIGUOUS, THE DISTRICT COURT ERRED
IN CONCLUDING THAT ED’S REGULATION DEFINING A TEACHER-INTRAINING AS “HIGHLY QUALIFIED” IS REASONABLE AND CONSISTENT WITH NCLB.
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According to Chevron, given the clarity of NCLB’s HQT definition, this Court need look no further to reverse the lower court’s decision and rule in favor of Plaintiffs. Nonetheless, even if the Court were to find some ambiguity in Congress’s “highly qualified” teacher definition, ED’s regulation should not be accorded deference under the second prong of the Chevron analysis as it conflicts with NCLB’s overall goals and leads to absurd results, rendering it “manifestly contrary to the statute.” Chevron, 467 U.S. at 843-44. See also Hawaii v. FEMA, 294 F.3d 1152, 1159 (9th Cir. 2001) (rejecting agency interpretation under Chevron’s second prong where it is unreasonable, leads to absurd results and does not advance Congress’s purposes).
A. ED’s Regulation is Wholly Inconsistent With the Statutory Scheme and Undermines NCLB’s Goals of Improving Access to, Distribution of, and Public Accountability for Better Prepared Teachers. The Supreme Court has long recognized that administrative regulations that
are inconsistent with their statutory mandate or that frustrate the policies that Congress sought to implement must be rejected. FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 32 (1981); Kaiser Aluminum & Chem. Corp. v. Bonneville Power Admin., 261 F.3d 843, 848-49 (9th Cir. 2001). As the lower court itself recognized, “an agency’s interpretation of a statute is not entitled to deference when it goes beyond the meaning that the statute can bear.” ER8:26-28
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(citing MCI Telecomms. Corp. v. AT & T Co., 512 U.S. 218, 229 (1994)). The
District Court’s opinion, however, devotes just two sentences to its duty under the
second prong of Chevron to analyze the reasonableness of the regulation:
The regulation simply adds the provision that an individual who “is participating in an alternative route to certification program” that fulfills certain requirements may be considered to have “obtained full State certification as a teacher.” The Secretary’s interpretation is also consistent with the other provisions of the NCLB Act—in particular, the provisions regarding the “alternative route” programs.
ER13:1-5. Nowhere does the court’s opinion ever address Plaintiffs’ arguments
below that the challenged regulation, by allowing teachers-in-training to be labeled
“highly qualified,” wholly undercuts NCLB’s goals of improving teacher quality,
and ensuring equity and accountability with respect to students’ access to fully-
prepared teachers.
1. ED’s Regulation Frustrates Congress’s Intent that Poor and Minority Students Have Equal, if Not Greater, Access to Fully-prepared, Wellqualified Teachers.
The primary goals of NCLB are to bring all students to the level of
“proficient” in reading and math by 2014 and to close the achievement gap
between low-income and minority students and their more affluent, white peers.
See 20 U.S.C. §§ 6301, 6311(b)(2)(F), 6311(b)(2)(B). As stated by Secretary
Spellings (see ER447), a cornerstone of NCLB’s accountability scheme for
ensuring that these ambitious goals are met is that all children must be taught by 51
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“highly qualified” teachers as that term is defined in the statute. Delivering these
teachers to all children, especially poor and minority students, in turn relies on the
Act’s hiring, distribution, planning and reporting requirements. See Facts, supra, at A.16
Even if this Court were somehow to find ambiguity in the statutory
definition of a “highly qualified” teacher, there can be no dispute that the Act seeks
to improve students’ access to better prepared, more qualified teachers, not to
worsen it. It strains credulity to assert that, as a general matter, ED’s regulation
increases access to better prepared teachers when by definition it enacts a standard
that awards, without limitation, HQT status to teachers who have not yet
completed their pedagogical training—indeed, who may have just enrolled in a
preparation program—in place of the higher standard that would be in place
without the regulation. That standard, absent ED’s offending regulation, would
require all teachers to have completed all certification requirements, including their
16 See also, e.g., 147 CONG. REC. H2611-01, at *H2626 (May 23, 2001) (comments of Congressman Miller (Martinez) stating “the poorest school districts with the poorest children, as the President will point out, and the poorest performing children, under this legislation, within 4 years they are going to have to have a qualified teacher in every classroom.”) (see ER315);147 CONG. REC. H4121-01, at *H4127-H4128 (July 18, 2001) (comments of Congresswoman Solis (Los Angeles) criticizing the “overabundance of teachers who do not have credentials” in her district and its impact on “low income students”) (see ER312-313).
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traditional or alternate route pedagogical training, prior to obtaining HQT status. Instead, under Defendants’ regulation, the teaching force of an entire school, school district, or even of an entire state could lawfully consist of 100% alternative route program participants teaching full-time while still learning how to teach at night and on weekends. Far from “reasonable,” ER13:1, this proposition so fundamentally undermines the core promise of NCLB to improve teacher quality as to be rendered absurd.
And in California, the regulation has led to absurd results. Low-performing, low-income and minority students—the students whom Congress intended would reap the greatest benefits from NCLB—are the ones disproportionately taught by interns still learning how to teach. Indeed, 23% of California’s 10,000 interns teach in schools whose students are 98-100% minority. ER330¶13, 340; see also Facts, supra at E.2.
Even if one of the sub-goals of the Act can be said to be fostering experimentation with alternative routes of certification, that conclusion cannot justify ED, within its discretion under prong two of Chevron, so favoring such a goal as to jettison other core teacher quality goals of the Act—like improving access to better prepared teachers and the accurate and meaningful reporting of teacher quality information to the public. In other words, the agency may try to
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harmonize the Act’s various goals, but it is not free to undercut any, even if faced with language that it views as ambiguous or problematic.
2. ED’s Regulation Frustrates Congress’s Intent that Schools, Districts, and States Provide Accurate, Meaningful Information to Parents and the Public Regarding Students’ Access to Better Prepared Teachers.
It bears emphasizing the extent to which ED’s regulation eviscerates the public transparency and accountability provisions so central to the Act’s purpose of improving the academic achievement of all students. See 20 U.S.C. § 6301(4). Parents’ “right-to-know” when their child is being taught by a non-HQT is substantially undermined. 20 U.S.C. § 6311(h)(6)(B)(ii). Under ED’s regulation, districts are under no obligation to inform parents when their child is being taught by a teacher-in-training through an alternative route program—even though that teacher is not yet fully-certified and, indeed, may have only just begun an alternative teacher preparation program. Without this critical information, parents—such as the parents of the plaintiffs in this case—are unable to make important decisions regarding their child’s education as the Act intends.
NCLB also mandates that schools, districts, states and the Department of Education report on their numbers of HQTs and the progress they are making towards meeting the 100% HQT goal. See Facts, supra, at A.1. Armed with this information, the Act intends that parents and the public hold their schools, districts,
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and ultimately their state accountable for providing access to fully-certified, HQTs. With this data, districts can monitor individual schools’ progress toward meeting the 100% HQT goal and equitable distribution requirements, and where necessary, develop local policies to increase access to HQTs. States can monitor and respond to district data, and ED can in turn monitor and respond to state-level data. The structure of NCLB’s HQT public reporting requirements contemplates that each of these entities take steps to meet the HQT requirement, and that—if the nation falls short of meeting the 100% HQT goal—Congress will receive this information from ED and prepare informed education policy and budget responses.
By reporting over 10,000 California alternative route teachers-in-training and over 100,000 such individuals nationally as “highly qualified”, ED’s regulation masks meaningful differences in the true quality and preparation of teachers contrary to the Act’s purposes. For example, if a low-income, high minority school had 100% alternative route teachers-in-training and a cross-town affluent, low minority school had 100% fully prepared and fully-certified teachers, the two schools would, under ED’s regulation, be reported as having the exact same number of “highly qualified” teachers. ED’s regulation thus improperly insulates schools, districts and states from the very political pressures Congress intended be visited upon them to improve the qualifications of their teachers.
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3. ED’s Regulation is Also Unreasonable Because it Usurps States’ Longstanding Authority over Teacher Certification, Which NCLB Explicitly Sought to Reinforce.
Whatever ambiguity a court might possibly find in the Act also cannot justify ED’s subversion of NCLB’s traditional delegation to states the sole role of determining state teacher certification standards.
Courts “ordinarily expect a ‘clear and manifest’ statement from Congress to authorize an unprecedented intrusion into traditional state authority.” Rapanos v. United States, 547 U.S. 715, 737-38 (2006) (plurality opinion by Scalia, J.). Public education and the establishment of state teacher certification standards certainly falls into this domain. Yet, as noted above, rather than authorizing ED’s intrusion, Congress’s “clear and manifest” HQT definition explicitly continues the traditional federal role of deferring to each of the fifty states to determine what full teacher certification in that state means. See Argument, supra, at § I.A.4. ED’s regulation intruding in this traditional state domain thus not only violates the plain language of the Act under Chevron’s first prong, it is also unreasonable, inconsistent with the structure and purposes of NCLB, and entitled to no deference under Chevron’s second prong. See Rapanos, 547 U.S. at 737-38 (agency’s interpretation unreasonable because it resulted in “a significant impingement of the States’ traditional and primary power over land and water use”).
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B. The District Court Erroneously Concluded That Reading NCLB’s HQT Definition as Requiring “Full State Certification” Is Inconsistent With Congress’s Support for Alternative Route Certification Programs. After devoting nearly a page to summarizing only Defendants’ arguments
on this point, ER11:7-25, the District Court concluded—without a single word of analysis—that it would be inconsistent for Congress to have authorized funding to support alternative route programs such as “Troops to Teachers” and “Transition to Teaching,” while simultaneously excluding participants in these programs from HQT status. ER13:4-5. In fact, as demonstrated below, these provisions are entirely consistent with each other and demonstrate that Congress was not merely mandating standards, but providing interim means to satisfy them.
1. The District Court and ED Erred As a Matter of Law in Presuming that Congress Inadvertently Excluded Alternate Route Participants from “Highly Qualified” Status.
As this Court has stated, courts “must presume that Congress acts with deliberation, rather than by inadvertence, when it drafts a statute.” California Cosmetology Coalition v. Riley, 110 F.3d 1454, 1460 (9th Cir. 1997) (citing United States v. Motamedi, 767 F.2d 1403, 1406 (9th Cir. 1985)). In defining the term “highly qualified” teacher, Congress’s intent was unmistakable: only a teacher who “has obtained full State certification”—whether that certification was obtained through a traditional or an alternative route program— or “passed the State teacher
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licensing examination, and holds a license to teach in such State,” is “highly qualified.” 20 U.S.C. § 7801(23)(A)(i). Though Congress’s “highly qualified” teacher definition sets forth only these two avenues for meeting the HQT standard, ED’s regulation adds an unauthorized third avenue: individuals “participating in an alternative route” and making “progress toward full certification.” It is wellsettled that “[a] regulation may not serve to amend a statute, Koshland v. Helvering, 298 U.S. 441, 447 (1936), nor add to the statute ‘something which is not there.’ United States v. Calamaro, 354 U.S. 351 (1957).
ED’s justification for adding this “one exception” “for teachers in alternative routes to certification” was that “we do not believe that Congress intended that teachers in alternative route programs would be unable to teach until they had obtained full State certification.” ER680-681 (67 Fed. Reg. 71764-71765 (Dec. 2, 2002). Thus, Defendants—who in this same sentence and elsewhere repeatedly concede that alternate route participants lack the necessary “full State certification”—acknowledge their belief that Congress inadvertently excluded alternative route teachers-in-training from the “highly qualified” definition, necessitating the challenged regulation. As California Cosmetology teaches, however, Congress acts by deliberation, not inadvertence, and the agency’s duty here was to find harmony among provisions, not to override one. See Cosmetology
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Coalition v. Riley, 110 F.3d at 1457-1459 (Secretary of Education’s perceived conflict necessitating certain student financial aid regulations did not exist; instead, regulations conflicted with the clear and unambiguous language of the statute.).
2. Because Participation in the Various Alternate Route Programs is Voluntary, not Mandatory, and Because Congress has Delegated to States the Role of Defining “Full State Certification,” There is No Irreconcilable Conflict Between the Two.
As an initial matter, despite ED’s best efforts to manufacture discord, it must be conceded that on its face there is no conflict between Congress’s support for some alternative route programs and the “full State certification” standard. Defendants and the court below fail to recognize that NCLB’s provisions governing alternative route programs such as “Troops to Teachers” and “Transition to Teaching” are entirely permissive. NCLB does not require any state or district to use these voluntary programs. Thus, even assuming a state wanted to ensure that only HQTs were hired by its districts, it would remain the case that, by setting their own “full State certification” standard, states are able to decide whether they want their schools to utilize teachers in alternative route programs.
3. NCLB’s Statutory Scheme Fully Accepts that Non-HQTs Will Continue to Teach in Areas Where There Are Teacher Shortages and Supports Alternative Route Programs as One Way to Help Transition Districts Into Compliance With the 100% HQT Requirement.
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Although NCLB posits an ultimate goal that all children have fully-certified, HQTs in core courses, the statute recognizes that it will likely take years to reach this 100% HQT goal and that, in the meantime, children will continue to be taught by non-HQTs. Thus, NCLB requires that, even after the Act’s 100% HQT deadline of 2005-06, state and local education agencies must continue to have plans for how they will meet the 100% HQT requirement (see 20 U.S.C. §§ 6311(a), 6312(c)(1)(I)); states, districts, and schools must continue to work to distribute equitably non-HQTs (see 20 U.S.C. § 6311(b)(8)(C)); states, districts, and schools must continue to report on the progress they are making towards meeting the 100% HQT requirement (see 20 U.S.C. §§ 6311(h)(1)(C)(viii), 6311(h)(2), 6319(b)(1)(A)); and states and districts may seek to obtain Title II, Parts A and C grant funds to redress these ongoing HQT shortages with alternative route participants who commit to remain in the high need school or district after transitioning to full certification (see 20 U.S.C. § 6671 et seq., 20 U.S.C. § 6681 et seq.). All of these requirements would have been unnecessary and idle acts by Congress if it actually expected full 100% HQT compliance by the end of 2005-06.
Defendants do not dispute that Congress intended alternative route programs to redress longstanding HQT shortages in high-need districts and schools. See Defs. Opp. at 5:1-3 (Docket No. 60). By statutory mandate, “Troops to Teachers”
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and “Transition to Teaching” participants must be assigned to “high-need” districts and/or schools experiencing teacher shortages that, by definition, are already out of compliance with NCLB’s 100% HQT requirement. See 20 U.S.C. §§ 6674, 6682-83. See also 20 U.S.C. §§ 6613, 6623 (Title II, Part A grant funds may be used, inter alia, to redress teacher shortages through alternative route programs). Because these districts are already out of compliance, hiring non-“highly qualified” alternative route participants does not put them in further violation of NCLB. Instead, districts with teacher shortages are able to fill teacher vacancies and replace substitute or other underprepared teachers with alternative route participants who—though they are not yet fully-certified, HQTs—have subject matter knowledge, are in a fast-track program to obtain full certification and become “highly qualified,” and have committed to stay in the district for at least three years. 20 U.S.C. §§ 6674, 6683.
Secretary Spellings agrees that the 100% HQT requirement is a goal that will take time to achieve beyond NCLB’s 2005-06 100% HQT timeline. The Secretary notified states in October 2005 that “[s]tates that do not quite reach the 100 percent goal by the end of the 2005-06 school year will not lose federal funds if they are implementing the law and making a good-faith effort to reach the HQT goal in NCLB as soon as possible.” ER447 (emphasis added). Thus, contrary to
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Defendants’ contention, states and districts would not be categorically prohibited by NCLB from hiring alternative route program participants were these teachers deemed not “highly qualified.” To the contrary, this practice is recognized by the statutory scheme as inevitable and would serve as evidence of “good faith” interim efforts to meet the 100% HQT goal in high-need schools and districts. III. THE DISTRICT COURT ERRONEOUSLY CONCLUDED THAT CONGRESS’S
FAILURE TO AMEND NCLB’S HQT DEFINITION INDICATES CONGRESSIONAL APPROVAL OF ED’S REGULATION. The District Court erred in imputing legislative acquiescence to the challenged regulation based on “Congress’s failure to reverse the Secretary’s regulation after more than five years since its promulgation.” ER13 (Op. at 12:6-8). As an initial matter, it is clear from the regulatory history that members of Congress—including the majority members of the Senate Health Education Labor and Pensions Committee and Senator Kennedy, one of NCLB’s key authors—expressly disapproved of the challenged regulation when first proposed. See ER684, ER692, 148 CONG. REC. S 5341, 5342-43 (June 11, 2002) (comments of Sen. Kennedy) (see ER309-310), discussed supra at I.A.3. Furthermore, the case law is clear that congressional acquiescence may only be assumed in certain limited circumstances not applicable here. Generally, courts follow the rule that “Congress takes no governmental action except by legislation.”
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Rapanos, 547 U.S. at 750. Congressional acquiescence may only be assumed in the rare circumstance “when there is evidence that Congress considered and rejected the ‘precise issue’ presented before the Court.” Id. (emphasis in original), citing SWANCC v. United States Army Corps of Eng’rs, 531 U.S. 159, 169-170 n.5 (2001). See also Aaron v. SEC, 446 U.S. 680, 694 n.11 (1980)) (even where Congress had been expressly informed of agency’s interpretation on two occasions when relevant law was amended, Congress’s failure to overturn agency’s interpretation fails to indicate acquiescence with agency’s interpretation where amendments concern other unrelated matters). Here, Congress has failed to make a single amendment to NCLB since it was first passed in 2001, much less considered and rejected any amendment to NCLB’s definition of a “highly qualified” teacher. Indeed, as a reauthorization statute, NCLB presents a regular schedule for revisiting and amending, and thus, it is not surprising that Congress would defer tinkering with individual provisions until it undertakes reauthorization of the Act as a whole. The District Court thus erred in presuming legislative acquiescence based on Congress’s failure to reverse the regulation.
NCLB is currently due for reauthorization. When this will happen and whether NCLB will retain its current structure or be completely overhauled will depend on the new Congress and President. Whatever the outcome, however,
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Congress deserves a prompt and final judicial determination interpreting the original NCLB statute with respect to “highly qualified” teachers so that it may make any amendments it deems necessary as part of a larger reauthorization.
CONCLUSION AND REMEDY REQUESTED For the reasons stated above, Plaintiffs ask this Court to rule that ED’s regulation plainly conflicts with Congress’s unambiguous definition of the term “highly qualified” teacher as one who “has obtained full State certification”. In the alternative, Plaintiffs ask this Court to rule that ED’s regulation is an unreasonable exercise of agency authority and inconsistent with the purposes of the Act. Plaintiffs respectfully request that this Court reverse the District Court’s Order and the accompanying judgment and remand with instructions to void 34 C.F.R. § 200.56(a)(2)(ii), enter judgment for Plaintiffs, and provide additional relief consistent with this Court’s judgment and opinion and Plaintiffs’ Prayer for Relief.

Dated: October 15, 2008

Respectfully submitted,

s/ John T. Affeldt s/ Tara Kini

JOHN T. AFFELDT TARA KINI PUBLIC ADVOCATES, INC.

JEFFREY A. SIMES GOODWIN PROCTER LLP
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STATEMENT OF RELATED CASES Circuit Rule 28-2.6
Plaintiffs know of no other related cases pending before this Court.

Dated: October 6, 2008

Respectfully submitted,
s/ John T. Affeldt JOHN T. AFFELDT PUBLIC ADVOCATES, INC. 131 Steuart Street, Suite 300 San Francisco, CA 94105

STATEMENT OF RELATED CASES CASE NO. 08-16661

CERTIFICATE OF COMPLIANCE PURSUANT TO FED. R. APP. P. 32 (A)(7)(C) AND CIRCUIT RULE 32-1
FOR CASE NUMBER 08-16661
I certify that: (check appropriate option(s))
_X_ 1. Pursuant to Fed. R. App. P. 32 (a) (7) (C) and Ninth Circuit Rule 32-1, the attached corrected opening/answering/reply/cross-appeal brief is
• Proportionately spaced, has a typeface of 14 points or more and contains 13,989 words (opening, answering, and the second and third briefs filed in cross-appeals must not exceed 14,000 words; reply briefs must not exceed 7,000 words), or is
• Monospaced, has 10.5 or fewer characters per inch and contains ________ words or ______ lines of text (opening, answering, and the second and third briefs filed in cross-appeals must not exceed 14, 000 words or 1,300 lines of text; reply briefs must not exceed 7,000 words or 650 lines of text).
___ 2. The attached brief is not subject to the type-volume limitations of Fed. R. App. P. 32(a)(7)(B) because
• This brief complies with Fed. R. App. P. 32(a)(1)-(7) and is a principal brief of no more than 30 pages or a reply brief of no more than 15 pages;
• This brief complies with a page or size-volume limitation established by separate court order dated ______ and is o Proportionately spaced, has a typeface of 14 points or more and contains _____ words, or is o Monospaced, has 10.5 or fewer characters per inch and contains _____ pages or _____ words or ______ lines of text.
___ 3. Brief in Capital Cases • This brief is being filed in a capital case pursuant to the typevolume limitations set forth at Circuit Rule 32-4 and is
CERTIFICATE OF COMPLIANCE CASE NO. 08-16661

o Proportionately spaced, has a typeface of 14 points or more and contains _____ words (opening, answering, and the second and third briefs filed in cross-appeals must not exceed 21,000 words; reply briefs must not exceed 9,800 words) or is
o Monospaced, has 10.5 or fewer characters per inch and contains _____ words or _____ lines of text (opening, answering, and the second and third briefs filed in cross appeals must not exceed 75 pages or 1,950 lines of text; reply briefs must not exceed 35 pages or 910 lines of text).
__ 4. Amicus Briefs
• Pursuant to Fed. R. App. P. 29 (d) and 9th Cir. R. 32-1, the attached amicus brief is proportionally spaced, has a typeface of 14 points or more and contains 7000 words or less, or is
• Monospaced, has 10.5 or fewer characters per inch and contains not more than either 7000 words or 650 lines of text, or is
• Not subject to the type-volume a limitation because it is an amicus brief of no more than 15 pages and complies with Fed. R. App. P. (32)(a)(1)(5).

Dated: October 15, 2008

s/ John T. Affeldt
John T. Affeldt Public Advocates, Inc. 131 Steuart Street, Suite 300 San Francisco, CA 94105-1241
Attorneys for Plaintiffs-Appellants Renee, et al.

CERTIFICATE OF COMPLIANCE CASE NO. 08-16661

CERTIFICATE OF SERVICE Case No. 08-16661
My business address is 131 Steuart Street, Suite 300, San Francisco California 94105-1241 and I am employed in the City and County of San Francisco, State of California. I am over the age of 18 and not a party to this action.
I hereby certify that on October 15, 2008, I electronically filed the foregoing with the Clerk of the Court of the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system:
APPELLANTS’ CORRECTED OPENING BRIEF
I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.
I further certify that I served a copy of the foregoing document on the following counsel:
Alisa B. Klein Civil Division, Appellant Staff United States Department of Justice 950 Pennsylvania Ave., N.W. Room 7235 Washington, D.C. 20004 Tel. (202) 514-1597 Fax. (202) 514-8151 Alisa.Klein@usdoj.gov
directly by electronic mail and by overnight mail by sealing a package containing a true and correct copy of this document, with proper postage affixed, addressed to the person above, and by placing this day at the above business address said envelopes for collection, and mailing by overnight U.S. mail following ordinary business practices. I am readily familiar with the regular practice of collection and processing of correspondence for mailing of United States mail.
CERTIFICATE OF SERVICE CASE NO. 08-16661

I further certify that APPELLANTS’ INITIAL EXCERPTS OF RECORD was served on the above named counsel by overnight mail on October 6, 2008.
I declare under penalty of perjury the foregoing is true and correct, and that I executed this proof of service in San Francisco, California this 15th day of October, 2008.
s/ Tara Kini Tara Kini
CERTIFICATE OF SERVICE CASE NO. 08-16661

 
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

 SONYA RENEE; CANDICE JOHNSON, a

minor, by Sonya Renee, her

guardian ad litem; MARIBEL

HEREDIA; JOSE ALDANA, a minor,

by Maribel Heredia, his guardian

ad litem; B. DOE, a minor, by N.

Doe, her guardian ad litem;

MARIEL RUBIO; DANIELLE RUBIO, a

minor, by Mariel Rubio, her

guardian ad litem; STEPHANIE

RUBIO, a minor, by Mariel Rubio,

her guardian ad litem; GUADALUPE

GONZALEZ; DAISY GONZALEZ, a minor, by Guadalupe Gonzalez,

No. 08-16661

her guardian ad litem; JAZMINE JOHNSON, a minor, by Deanna Bolden, her guardian ad litem; ADRIANA RAMIREZ, a minor, by Arcelia Trinidad Ramirez, her

 D.C. No. 3:07-CV-04299-PJH
ORDER AND OPINION

guardian ad litem; JANE DOE, a

minor, by John Doe, her guardian

ad litem; CALIFORNIANS FOR JUSTICE

EDUCATION FUND; CALIFORNIA

ASSOCIATION OF COMMUNITY

ORGANIZATIONS FOR REFORM NOW,

Plaintiffs-Appellants,

v.

ARNE DUNCAN, in his official capacity; UNITED STATES DEPARTMENT OF EDUCATION,
 Defendants-Appellees.

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16318

RENEE v. DUNCAN

Appeal from the United States District Court for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding

Argued and Submitted February 11, 2009—Stanford, California

Filed September 27, 2010

Before: Dorothy W. Nelson, William A. Fletcher and Richard C. Tallman, Circuit Judges.

Opinion by Judge William A. Fletcher; Dissent by Judge Tallman

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COUNSEL
John T. Affeldt and Tara Kini, Public Advocates, Inc., San Francisco, California, for the plaintiffs-appellants.
Alisa B. Klein, United States Department of Justice, Civil Division, Washington, D.C., for the defendant-appellee.
Lisa A. Davis, Wilson Sonsini Goodrich & Rosati P.C., Palo Alto, California, for The National Coalition of ESEA Title I Parents, Inc., et al., as amicus curiae.
Donald B. Verilli, Jr., Jenner & Block LLP, Washington, D.C., for Teach for America, et al., as amicus curiae.
ORDER
This court’s opinion filed July 23, 2009, and reported at 573 F.3d 903, is withdrawn and is replaced by the attached Opinion and Dissent.

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The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing en banc, filed August 25, 2009, is DENIED.

OPINION
W. FLETCHER, Circuit Judge:
Appellants Sonya Renee, et al., appeal the district court’s order granting summary judgment in favor of Appellees U.S. Department of Education and Arne Duncan, Secretary of Education1 (collectively, “the Secretary”). Appellants challenge a federal regulation permitting teachers who are participating in alternative-route teacher training programs, but have not yet obtained full State certification, to be characterized as “highly qualified teachers” under the No Child Left Behind Act. The district court granted summary judgment to the Secretary. We reverse and remand.
I. Background
A. No Child Left Behind Act and the Challenged Regulation
The No Child Left Behind Act (“NCLB”) was enacted in 2002. Its overarching goal is “to ensure that all children have a fair, equal, and significant opportunity to obtain a highquality education and reach, at a minimum, proficiency on challenging State academic achievement standards and state academic assessments.” 20 U.S.C. § 6301. NCLB seeks to
1Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Secretary Arne Duncan is automatically substituted for former Secretary of Education Margaret Spellings as Appellee in this case.

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close the “achievement gap between high- and lowperforming children, especially the achievement gaps between minority and nonminority students, and between disadvantaged children and their more advantaged peers.” Id. § 6301(3).

Each state is responsible for ensuring compliance by its local school districts. Id. §§ 1232c, 7844(a). NCLB provides funds to states and schools under several sections, only one of which is central to this appeal. Specifically, Title I funds are used to supplement the educational needs of disadvantaged students. Id. §§ 6301 et seq. The Secretary has the authority to enforce NCLB. He may withhold funds or take other enforcement action if a state fails to comply substantially with NCLB’s requirements. Id. § 1234c (“Whenever the Secretary has reason to believe that any recipient of funds under any applicable program is failing to comply substantially with any requirement of law applicable to such funds, the Secretary may . . . withhold further payments under that program as authorized by section 1234d of this title[.]”).

A premise of NCLB is that good teachers — defined by Congress as “highly qualified” teachers — are crucial to educational success. NCLB provides that, by the end of the 200506 academic year, only “highly qualified” teachers should instruct core academic classes in school districts receiving Title I funding (the “100% requirement”). Id. § 6319(a)(2). “Core academic subjects” are “English, reading or language arts, mathematics, science, foreign languages, civics and government, economics, arts, history, and geography.” Id. § 7801(11); 34 C.F.R. § 200.55(c).

NCLB requires that states and school districts develop and submit plans to meet the mandates of the statute. 20 U.S.C. §§ 6311(a)(1), 6311(b)(8)(C), 6319(a)(2) (state plans); id. §§ 6312(b)(1)(N), 6312(c)(1)(I), 6319(a)(3) (district plans). To receive funds under Title I of the statute, NCLB requires states to identify steps they will take to ensure that “poor and

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minority children are not taught at higher rates than other children by inexperienced, unqualified, or out-of-field teachers.” Id. § 6311(b)(8)(C).

NCLB also requires that states and school districts report annually on their progress toward meeting the 100% requirement. Id. §§ 6311(h)(1)(C)(viii), 6311(h)(2), 6319(b)(1). States must provide this information to the Secretary, id. §§ 6311(h)(4)(G), 6319(b)(1)(B), who must report nationwide statistics on “highly qualified teachers” to Congress, id. § 6311(h)(4)-(5). Schools receiving Title I funds must inform a parent when his or her child is taught for four or more weeks by a teacher who is not “highly qualified.” Id. § 6311(h)(6)(B)(ii).

If a “State educational agency” fails to submit to the Secretary a “plan” satisfying the requirements of NCLB, id. § 6311(a)(1), the Secretary may withhold federal funds until the state has done so. Id. § 6311(g)(2) (“If a state fails to meet any of the requirements of this section, other than the requirements described in paragraph (1) [not at issue here], then the Secretary may withhold funds for State administration under this part until the Secretary determines that the State has fulfilled those requirements.”); id. § 6311(b)(8)(C) (“Each State plan shall describe . . . the specific steps the State educational agency will take to ensure that both schoolwide programs and targeted assistance schools provide instruction by highly qualified instructional staff as required by sections 6314(b)(1)(C) and 6315(c)(1)(E).”).

NCLB contains a lengthy definition of “highly qualified teacher.” Of central concern in this litigation, “highly qualified” means that:

the teacher has obtained full State certification as a teacher (including certification obtained through alternative routes to certification) or passed the State teacher licensing examination, and holds a license to

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teach in such State, except that when used with respect to any teacher teaching in a public charter school, the term means that the teacher meets the requirements set forth in the State’s public charter school law[.]

20 U.S.C. § 7801(23)(A)(i) (emphasis added).

On December 2, 2002, the Secretary promulgated regulations providing a more detailed definition of the statutory term “highly qualified teacher.” 34 C.F.R. § 200.56. Section 200.56 provides, in pertinent part:

[A] “highly qualified teacher” . . . meets the requirements in paragraph (a) [and other paragraphs not relevant to this appeal].

(a) In general.

(1) Except as provided in paragraph (a)(3) of this section [covering charter schools], a [“highly qualified”] teacher . . . must —

(i) Have obtained full State certification as a teacher, which may include certification obtained through alternative routes to certification; or

(ii)(A) Have passed the State teacher licensing examination; and (B) Hold a license to teach in the State.

(2) A teacher meets the requirement in paragraph (a)(1) of this section if the teacher —

(i) Has fulfilled the State’s certification and licensure requirements appli-

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cable to the years of experience the teacher possesses; or

(ii) Is participating in an alternative route to certification program under which —

(A) The teacher —

(1) Receives high-quality professional development . . . ;

(2) Participates in a program of intensive supervision . . . ;

(3) Assumes functions as a teacher only for a specified period of time not to exceed three years; and

(4) Demonstrates satisfactory progress toward full certification as prescribed by the State[.]

Id. (emphasis added).

Neither NCLB nor the Secretary’s regulation defines “alternative routes to certification.” The traditional path to a teaching credential generally involves obtaining a degree and taking education courses. The term “alternative routes to certification” generally refers to non-traditional training programs that are typically designed for people who already hold at least a bachelor’s degree in a field other than education. These alternative programs are often designed to address teacher shortages in specific subjects or geographic areas. See, e.g., Cal. Educ. Code § 44382 (“Alternative certification programs shall address geographic and subject matter shortage areas, and shall be targeted toward people with work experi-

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ence and others who already have a bachelor’s degree in the field in which they plan to teach.”).

Some aspects of the traditional route to teacher certification — such as formal course work in education philosophy or pedagogy — are typically shortened, or sometimes waived altogether, in alternative-route programs. Several well-known and successful alternative-route programs, such as Teach for America and Troops to Teachers, provide some training to participants before they begin teaching in the classroom. Teach for America participants, for example, receive training during the summer before they enter the classroom. Support and training typically continue for the length of an alternativeroute program. After successful completion of an alternativeroute program, a teacher receives a credential similar or identical to a credential obtained after successful completion of a traditional teacher-training program.

Appellants do not object to characterizing an alternativeroute teacher who has already obtained “full State certification” as a “highly qualified teacher.” See 20 U.S.C. § 7801(23)(A)(i) (“highly qualified teacher” includes an alternative-route teacher who “has obtained full State certification as a teacher”) (emphasis added); 34 C.F.R. § 200.56(a)(1)(i) (“highly qualified teachers” include alternative-route teachers who “have obtained full State certification as a teacher”) (emphasis added). However, Appellants do object to characterizing as a “highly qualified teacher” an alternative-route teacher who has not yet obtained full state certification, but who merely “[d]emonstrates satisfactory progress toward full certification[.]” 34 C.F.R. § 200.56(a)(2)(ii)(A)(4) (emphasis added). Appellants contend that such teachers are not “highly qualified” within the meaning of § 7801(23).

B. California Law

Neither NCLB nor the Secretary’s regulation defines the term “full State certification” contained in NCLB. The parties

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agree that NCLB gives the states considerable flexibility in establishing credentialing systems under which a state teaching permit or credential may constitute “full State certification” within the meaning of NCLB. California law uses the terms “waiver,” “permit,” and “credential” to indicate various levels of teachers, and of certification, under state law. California has several levels of waivers, permits, and credentials, arranged in a rough hierarchy.

First, beginning at the bottom of the hierarchy, there are waivers. Individuals can teach pursuant to a waiver of the requirement for either a permit or credential. The Commission on Teacher Credentialing has authority to grant waivers in specified situations. Cal. Educ. Code § 44225(m).

Second, there are emergency permits, including an Emergency 30-day Substitute Teaching Permit, Cal. Code Regs. tit. 5, § 80025, and an Emergency Career Substitute Teaching Permit, id. § 80025.1. Emergency permits are valid for no more than one year and are restricted to the district that requested the issuance of the emergency permit. Id. § 80023.1. Teachers can renew emergency permits, but renewal ordinarily requires, among other things, demonstrated progress toward a non-emergency credential. Id. § 80026.6(a)(6).

Third, there are Short-Term Staff Permits and Provisional Internship Permits. Unlike emergency permits, which largely cover substitute teachers, these permits allow a teacher to serve as a teacher of record in an assigned classroom. Id. §§ 80021(e), 80021.1(e).

Fourth, there is an “intern credential.” This is the first certification in the hierarchy that California characterizes as a “credential” rather than a “permit.” An intern credential holder is participating in, but has not yet completed, an alternative-route teacher training program. See Cal. Educ. Code §§ 44830.3, 44259(b)(3)(C). Like Short-Term and Pro-

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visional Internship permits, an intern credential allows the holder to serve as a teacher of record. Id. §§ 44325(a), 44326, 44830.3(a). California requires internship programs to provide “preservice training . . . tailored to the grade level or class to be taught.” Id. § 44830.3(b)(3).

Fifth, there is a “preliminary credential.” A preliminary credential may be obtained through either a traditional or an alternative-route teacher training program. Id. § 44259(b)(3). A preliminary credential is generally valid for five years. Id. § 44251(a)(2), (b)(2). The minimum requirements for a preliminary credential include a bachelor’s degree, a passing score on the state’s “basic skills examination,” satisfactory completion of an accredited “program of professional preparation” (including traditional and alternative-route programs), and a passing score on one or more subject matter examinations or completion of an approved subject matter program. Id. § 44259(b).

Finally, at the top of the hierarchy, there is a “clear credential.” See id. § 44259(c). To obtain a clear credential, an individual must have held a preliminary credential, have completed a “program of beginning teacher induction,” and have gained experience in specified areas. Id. § 44259(c)(2), (4). Clear credentials are generally valid for life. See id. § 44251(a)(3), (b)(3).

In 2004, after the promulgation of the federal regulation challenged in this case, California promulgated regulations that piggybacked on the federal regulation. The California regulation applicable to middle and secondary schools provides that a teacher “meets NCLB requirements” if the teacher “[i]s currently enrolled in an approved intern program for less than three years or has a full credential.” Cal. Code Regs. tit. 5, § 6110(2) (emphasis added). The regulation applicable to elementary schools provides the same thing, but omits the word “full” before “credential.” Id. § 6101(2) (“[i]s currently enrolled in an approved intern program for less than

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three years or has a credential”) (emphasis added). By their use of the word “or,” these regulations indicate that an intern teacher does not have a “(full) credential.” That is, the California regulations provide the qualification criterion in the alternative: A teacher “meets NCLB requirements” if the teacher is “enrolled in an approved intern program” or if the teacher “has a (full) credential.”

The 2004 California regulations mimic the federal regulation challenged in this case. As described in greater detail above, the federal regulation provides that a teacher may be considered fully certified, and thus “highly qualified,” within the meaning of NCLB, if the teacher “[i]s participating in an alternative route to certification program” and “[d]emonstrates satisfactory progress toward full certification,” or if the teacher “[h]as fulfilled the State’s certification and licensure requirements applicable to the years of experience the teacher possesses.” 34 C.F.R. § 200.56(a)(2). Mimicking the federal regulation, the California regulations provide that a teacher “meets NCLB requirements” if that teacher is “currently enrolled in an approved intern program for less than three years” or “has a (full) credential.” Cal. Code Regs. tit. 5, §§ 6110(2), 6101(2).

Appellants contend that the challenged federal regulation, upon which the 2004 California regulations are based, allows a disproportionate number of interns to teach in minority and low-income schools in California, in violation of NCLB. Specifically, they contend that intern teachers in California do not have “full State certification” and are thus not “highly qualified teachers” within the meaning of NCLB. They contend that if the federal regulation is declared invalid, California will not be allowed to treat intern teachers as highly qualified teachers for purposes of NCLB. The result, Appellants contend, will be that California is likely to take steps to ensure that fewer intern teachers, and more teachers with “preliminary” and “clear” credentials, teach in minority and lowincome public schools in California.

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Appellants brought suit in federal district court, alleging that 34 C.F.R. § 200.56(a) is invalid to the extent that it characterizes an alternative-route teacher who is still in the process of obtaining “full State certification” as a “highly qualified teacher.” The challenged portion of the regulation is § 200.56(a)(2)(ii). Both parties moved for summary judgment. The district court granted summary judgment to the Secretary, upholding § 200.56(a)(2)(ii). Appellants timely appealed.

We have jurisdiction pursuant to 28 U.S.C. § 1291.

III. Standard of Review

We review de novo questions of justiciability under Article III. Porter v. Jones, 319 F.3d 483, 489 (9th Cir. 2003). We also review de novo a district court’s grant of summary judgment. Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d 930, 941 n.17 (9th Cir. 2006). “Although we give deference to an agency’s construction of a statutory provision it is charged with administering, we must reject those constructions that are contrary to clear congressional intent or that frustrate the policy Congress sought to implement.” Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1175 (9th Cir. 2002) (internal citation omitted).

IV. Discussion

A. Order of Analysis

The Secretary argues that Appellants do not have Article III standing. In a case where Article III justiciability is at issue, we usually begin our discussion with that question because Article III justiciability is a prerequisite to reaching the merits of the dispute. We conclude that Appellants have Article III standing, as discussed below. But we reverse the usual order of discussion because we think our discussion of the merits

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will help the reader understand our discussion of Article III standing.

B. The Merits

The challenged federal regulation interprets a federal statute. The regulation was adopted by the responsible federal agency through notice and comment rulemaking. We therefore apply the analytical framework outlined in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The first question is “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-843; see also Pac. Nw. Generating Coop. v. Dep’t of Energy, 580 F.3d 792, 806 (9th Cir. 2009). If, however, we determine that Congress has not clearly spoken on the precise question, the second question is whether the agency’s interpretation “is based on a permissible construction of the statute.” Chevron, 467 U.S. at 843. Because the intent of Congress, as expressed in the NCLB, is clear, we do not get beyond the first question.

NCLB provides that an alternative-route teacher is “highly qualified” once he or she has obtained “full State certification.” The statutory text provides, in pertinent part:

The term “highly qualified” —

(A) when used with respect to any public elementary school or secondary school teacher teaching in a State, means that —

(i) the teacher has obtained full State certification as a teacher (including certification obtained through alternative routes to certification)[.]

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20 U.S.C. § 7801(23) (emphasis added). NCLB does not define “full State certification,” but it makes clear — whatever “full State certification” means — that such certification must have been obtained before a teacher can be characterized as “highly qualified.”

The federal regulation, quoted at length above, begins by essentially repeating the statutory language. It provides that a “highly qualified teacher” “must . . . have obtained full State certification as a teacher, which may include certification obtained through alternative routes to certification.” 34 C.F.R. § 200.56(a)(1)(i) (emphasis added). It then goes on, however, to provide that an alternative-route teacher is “highly qualified” even if he or she has not obtained “full State certification.” It provides that a teacher “meets the requirements in paragraph (a)(1)” (which include the requirement that “full State certification” have already been obtained), if that teacher “[i]s participating in an alternative route to certification program” and “[d]emonstrates satisfactory progress toward full certification as prescribed by the State.” Id. § 200.56(a)(2)(ii) (emphasis added).

The Secretary points out that the meaning of “full State certification” in NCLB is ambiguous because it depends to a substantial degree on state law. We agree that the meaning of “full State certification” in NCLB is ambiguous and that it substantially depends on state law. But this ambiguity is irrelevant.

[1] The “precise question at issue,” Chevron, 467 U.S. at 842, is not the meaning of “full State certification” as used in NCLB. Rather, the “precise question at issue” is the difference between the meaning of “has obtained” full State certification in the statute, 20 U.S.C. § 7801(23), and the meaning of “demonstrates satisfactory progress toward” full State certification in the regulation, 34 C.F.R. § 200.56(a)(2)(ii). The difference between having obtained something and merely making satisfactory progress toward that thing is patent. We

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conclude that the Secretary’s regulation impermissibly expands the definition of “highly qualified teacher” contained in 20 U.S.C. § 7801(23) by including in that definition an alternative-route teacher who merely “demonstrates satisfactory progress toward” the requisite “full State certification.”

[2] We therefore hold that 34 C.F.R. § 200.56(a)(2)(ii) is invalid because it is inconsistent with the “unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 843. We emphasize that our holding is based on the difference between the meaning of “has obtained” in 20 U.S.C. § 7801(23) and the meaning of “demonstrat[es] satisfactory progress toward” in § 200.56(a)(2)(ii). Our holding is not based on the meaning of “full State certification” in § 7801(23).

C. Article III Standing

The Secretary did not argue in the district court that Appellants lack standing under Article III. He makes that argument for the first time on appeal. Lack of Article III standing is a non-waivable jurisdictional defect that may be raised at any time, even on appeal after failing to raise it in the district court. See Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1085 (9th Cir. 2003). For the reasons that follow, we conclude that Appellants have Article III standing.

[3] “[T]he irreducible constitutional minimum of [Article III] standing contains three elements.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); see also DBSI/TRI IV Ltd. P’ship v. United States, 465 F.3d 1031, 1038 (9th Cir. 2006). “First, the plaintiff must have suffered an ‘injury in fact’ ” that is “concrete and particularized” and “actual or imminent.” Lujan, 504 U.S. at 560. “Second, there must be a causal connection between the injury and the conduct complained of,” such that the injury is fairly traceable to the action challenged. Id. “Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable

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decision.” Id. at 561 (internal quotations omitted). We consider these three requirements in turn.

1. Injury in Fact

Appellants are California public school students, their parents, and two non-profit organizations, Californians for Justice (“CFJ”) and California Association of Community Organizations for Reform Now (“California ACORN”). The named students, along with student members of the two organizations, attend California public schools at which significant numbers of intern credential holders serve as teachers. As a result, these students are being taught by interns, have been taught by interns, or are substantially likely to be taught by interns.

Appellants presented evidence in the district court that a disproportionate number of interns teach in California public schools that serve minority and low-income students. For example, forty-one percent of interns in California teach in the twenty-five percent of schools with the highest concentrations of minority students. In contrast, two percent of interns in California teach in the ten percent of schools with the lowest concentration of minority students. Interns are similarly concentrated in schools serving low-income communities, with sixty-two percent of interns teaching in the poorest half of California’s schools. This disproportionate distribution of interns, Appellants contend, has resulted in a poorer quality education than Appellants would otherwise have received.

[4] We conclude that Appellants have established injury in fact. In adopting NCLB, Congress decided that teachers with “full State certification” are, in the aggregate, better teachers than those without such certification. We recognize that it is debatable whether Congress was correct in deciding that teachers with “full State certification” are in fact better than teachers without such certification. This is particularly debatable if intern teachers enrolled in programs such as Teach for

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America do not have “full State certification.” But that is not for us to decide. We are bound to accept Congress’ determination that students taught by a disproportionate number of teachers without “full State certification” have been injured in fact.

2. Causation

[5] We also conclude that there is a causal connection between the promulgation of the federal regulation challenged in this case and the later promulgation of the California regulations. The parties do not dispute that the California regulations were adopted as a result of the challenged federal regulation. To the degree that the federal regulation, and the piggybacking California regulations, have had the effect of permitting California and its school districts to ignore the fact that a disproportionate number of interns teach in schools in minority and low-income areas, there is a causal connection between the challenged regulation and the injury of which Appellants complain.

3. Redressability

Finally, we conclude that Appellants’ injury is likely to be redressed by the invalidation of the federal regulation. “Plaintiffs need not demonstrate that there is a ‘guarantee’ that their injuries will be redressed by a favorable decision.” Graham v. Fed. Emergency Mgmt. Agency, 149 F.3d 997, 1003 (9th Cir. 1998). The plaintiffs’ burden is “relatively modest.” Bennett v. Spear, 520 U.S. 154, 171 (1997). They need only show that there would be a “change in legal status,” and that a “practical consequence of that change would amount to a significant increase in the likelihood that the plaintiff would obtain relief that directly redresses the injury suffered.” Utah v. Evans, 536 U.S. 452, 464 (2002). If an agency has misinterpreted the law, there is Article III standing “even though the agency . . . might later, in the exercise of its lawful discretion,

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reach the same result for a different reason.” Fed. Election Comm’n v. Akins, 524 U.S. 11, 25 (1998).

[6] The challenged federal regulation permits a state to treat intern teachers as “highly qualified” under NCLB even if those teachers are not fully certified under state law but are only “demonstrat[ing] satisfactory progress toward full certification.” The 2004 California regulations, piggybacking on the federal regulation, provide that fully credentialed teachers under California law, as well as teachers who are currently enrolled in an intern program, are “highly qualified” within the meaning of NCLB. But the California regulations do not change the definition of fully credentialed under California law. Thus, unless intern teachers have “full State certification” under some other California law, such teachers are not “highly qualified” for purposes of NCLB in the absence of the challenged federal regulation. If the federal regulation is invalidated, in other words, California is very likely out of compliance with NCLB. That “change in legal status” significantly increases the likelihood that California will take steps to increase the number of teachers with “preliminary” and “clear” credentials in minority and low-income schools in order to comply with NCLB.

The Secretary makes two arguments against this conclusion. First, he argues that intern teachers are, in fact, already fully certified under California law. In making this argument, the Secretary contends that because California is not a party to this suit we should not interpret California law ourselves, but rather should defer to the Secretary’s interpretation. This is a very odd contention. As the Secretary surely knows, we routinely interpret California law in cases in which California is not a party. And while we defer to the Secretary’s interpretation of federal law under Chevron, we owe no deference to his interpretation of state law.

It is reasonably clear that intern teachers are not fully certified under current California law. California’s Education

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Code distinguishes between holders of intern credentials and holders of preliminary and clear credentials in several ways. For example, § 44300(a)(1)(A) of the Education Code, which governs the hiring of permit holders, requires school districts to document recruitment efforts to hire “certificated teachers, including teacher candidates pursuing full certification through internship, district internship, or other alternative routes.” (Emphasis added.) That is, while interns are “certificated teachers,” they are merely “pursuing full certification.” Cal. Educ. Code § 44300(a)(1)(A); see also id. § 44225.7(a) (indicating that interns are not “fully prepared” teachers); Bakersfield Elementary Teachers Ass’n v. Bakersfield City Sch. Dist., 145 Cal. App. 4th 1260, 1277 (2006) (referring to credentials other than clear and preliminary as less than “regular”).

The 2004 piggybacking California regulations similarly distinguish between intern teachers and fully credentialed teachers. Under the regulation applicable to middle and secondary schools, a teacher is deemed to “meet the requirements of NCLB” under two circumstances. One is that the teacher be “currently enrolled in an approved intern program.” The other is that the teacher have “a full credential.” Cal. Code Regs. tit. 5, § 6110(2). Thus, as recently as 2004, California confirmed that intern credential holders are not fully certified under the current credentialing system.

Second, the Secretary argues that if the federal regulation is held invalid, California will almost certainly change its credentialing laws to provide that the holder of an intern credential is fully certified under California law. We disagree. As just discussed, California’s Education Code indicates that holders of “preliminary” and “clear” credentials have “full certification,” but that interns do not. After the passage of NCLB, California made no attempt to change its law to provide that teachers with intern credentials are fully credentialed under California law. Both before and after the promulgation of the challenged federal regulation, California law has char-

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acterized intern teachers as not having full credentials. The Secretary points to no evidence indicating that, in the event the federal regulation is held invalid, California will change its credentialing law in a manner it has so far not seen fit to do.

Finally, our dissenting colleague makes an argument not made by the Secretary. He argues that even if the federal regulation is struck down, and even if intern teachers in California are not “highly qualified” within the meaning of NCLB, there is nothing in NCLB that empowers the Secretary to withhold funds as means of compelling a state to adopt a specific system of teacher credentialing. Diss. at 16350 (citing 20 U.S.C. § 7910). But that is not the issue. It is undisputed that NCLB gives the State great flexibility in deciding which teachers are fully certified under state law, and that the Secretary cannot compel a State to adopt any specific credentialing system.

The issue, rather, is whether the Secretary has the authority to withhold funds when a State fails to take steps to ensure that students in minority and low-income schools are not taught disproportionately by teachers without “full State certification” as the state then defines “full certification.” That is, a state is free to define “full certification” in any way it chooses. But then, once having defined full certification under state law, the state is required to take steps to ensure that fully certified teachers are proportionately represented in the teaching staffs of minority and low-income schools. It is undisputed that the Secretary has authority to withhold funds if a state does not take such steps. See 20 U.S.C. § 1234c (Secretary may withhold funds if a recipient “is failing to comply substantially with any requirement of law applicable to such funds”); id. § 6311(b)(8)(C), (g)(2) (Secretary may withhold funds if the State has not submitted a plan describing “specific steps the State educational agency will take to ensure that both schoolwide programs and targeted assistance schools provide instruction by highly qualified instructional staff”).

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[7] The Secretary is not required to withhold funds if a state fails to take steps to come into compliance with NCLB. The statute provides that he “may” do so rather than that he “must” do so. Id. §§ 1234c, 6311(g)(2). But the possibility of the Secretary withholding funds is an obvious incentive for a State to comply with NCLB. Further, even if the Secretary does not withhold funds, we are unwilling to assume that California is a scofflaw state. That is, we are unwilling to assume that California will refuse to take steps to come into compliance with NCLB in the absence of such compulsion.

Conclusion

[8] We cannot be absolutely certain how California will respond to the “change in legal status” effected by the invalidation of § 200.56(a)(2)(ii). It is possible, as the Secretary argues, that California will change its credentialing law such that intern teachers will, for the first time, be fully certified under state law. But, as discussed above, the Secretary points to no evidence supporting his contention that California is likely to do so. Indeed, the available evidence suggests precisely the opposite. On the record before us, we conclude that a favorable decision of this court will significantly increase the likelihood of redress of plaintiffs’ injuries. See Utah, 536 U.S. at 464. That is all that is required by Article III. See Fed. Election Comm’n, 524 U.S. at 25. We therefore hold that Appellants have standing under Article III.

We further hold that the definition of a “highly qualified teacher” contained in 34 C.F.R. § 200.56(a)(2)(ii) is invalid because it impermissibly expands the definition in 20 U.S.C. § 7801(23) to include teachers who only “demonstrate[ ] satisfactory progress toward full certification.” Our holding does not depend on the meaning of “full State certification” in § 7801(23). We do not address the question whether the Secretary could promulgate a valid regulation providing that an intern teacher meeting certain criteria could have “full State certification” within the meaning of NCLB.

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We reverse the district court’s grant of summary judgment in favor of the Secretary. We remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

TALLMAN, Circuit Judge, dissenting:
I respectfully dissent. Appellants—several California public school students, their parents, and two non-profit organizations, including the now-defunct California Association of Community Organizations for Reform Now (“California ACORN”)—lack Article III standing because their alleged injury cannot be redressed by a favorable decision from us. I do not disagree with the majority’s conclusion that the regulation’s phrase, “[d]emonstrates satisfactory progress toward full certification as prescribed by the State,” 34 C.F.R. § 200.56(a)(2)(ii)(A)(4), is broader than the statute’s phrase, “has obtained full State certification,” 20 U.S.C. § 7801(23). But striking down the federal regulation at issue will have no positive practical impact on Appellants’ alleged injury because that injury is caused by the actions of a third party not before us—the State of California. Because invalidating the challenged federal regulation will not redress Appellants’ alleged injury, I would hold they have no standing to challenge the regulation in the first place. This appeal should be dismissed for that reason.
I
Appellants argue that the Secretary of Education’s (“Secretary’s”) regulation of the states, in this case California, has harmed them. Under § 702 of the Administrative Procedure Act (“APA”), “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is enti-

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tled to judicial review thereof.” 5 U.S.C. § 702. “To establish standing to sue under the APA, appellants must first meet the ‘irreducible constitutional minimum of standing [which] contains three elements: (1) injury in fact; (2) causation; and (3) likelihood that a favorable decision will redress the injury.’ ” DBSI/TRI IV Ltd. P’ship v. United States, 465 F.3d 1031, 1038 (9th Cir. 2006) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). Appellants, as the parties “invoking federal jurisdiction[,] bear[ ] the burden of establishing these elements.” Lujan, 504 U.S. at 561.

While Appellants may be able to establish an injury in fact, they can neither establish causation nor a likelihood that a favorable decision will redress their injury.

II

Appellants have struggled to define their injury in fact. The majority characterizes Appellants’ injury as a “poorer quality education” that results from a disproportionate number of interns being assigned to California public schools that serve minority and low-income students. Maj. Op. at 16335. This characterization seemingly contains two injuries. One injury is a poorer quality education itself. Another injury is the disproportionate number of intern teachers hired in these schools. Of course, Appellants argue that the latter causes the former. It follows then, that what Appellants really want is quite understandable—a better quality education.

But as the author of the majority opinion once wrote, “The critical question is not what [a plaintiff] ‘really’ want[s].” William A. Fletcher, The Structure of Standing, 98 Yale L.J. 221, 242 (1988). Rather, as my colleague there argued, courts should “look[ ] to the underlying ‘relevant’ statute to determine whether the would-be plaintiff has standing.” Id. at 26465; see also Int’l Primate Protection League v. Adm’rs of Tulane Educ. Fund, 500 U.S. 72, 77 (1991) (citing the same article for the same proposition). Thus, the argument must be

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that because NCLB entitles Appellants to the same proportion of highly qualified teachers to non-highly qualified teachers as students in affluent areas, the deprivation of that entitlement constitutes their alleged real and immediate injury.

The majority nevertheless characterizes Appellants’ injury in fact by what they “really” want—an improvement in their “poorer quality education.” But it is entirely speculative to conclude that striking down the regulation at issue would redress that injury. As amicus Teach for America notes, its teachers were able to fill positions in low-income areas precisely because “schools in disadvantaged areas were far more likely to have had hiring difficulties than schools in other areas.” Brief for Amicus Curiae Teach for America, et al. at 27-28 (quoting Richard M. Ingersoll, Center for American Progress, Why Do High-Poverty Schools Have Difficulty Staffing Their Classrooms with Qualified Teachers? 5 (Nov. 2004)). Put simply, many “highly qualified teachers” would rather work in affluent area schools than low-income area schools. See Brian A. Jacob, The Challenges of Staffing Urban Schools with Effective Teachers, 17 Future of Children 1 (Spring 2007) (noting that 34.7% of central city schools had difficulty hiring a math teacher, compared with only 25.1% of suburban schools).

By removing the Teach for America teachers’ “highly qualified” label, Appellants hope to lower the number of Teach for America teachers legally allowed to fill vacant positions in low-income area schools. But were California to carry out Appellants’ desired result, Teach for America suggests that disadvantaged schools would not see an increase in the number of teachers with “full State certification” teaching in lowincome schools, but rather an endemic increase in vacancies. Faced with a staggering number of vacancies, school districts would be forced to resort to emergency measures, such as hiring short-term or long-term substitute teachers. See Brief of Amicus Curiae Teach for America at 29.

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Some have argued that students taught inconsistently by substitute teachers do not receive the same quality education as students consistently taught by permanent teachers, regardless of either teacher’s certification status. See Charles T. Clotfelter, Helen F. Ladd & Jacob L. Vigdor, National Bureau of Economic Research Working Paper No. 13648, Are Teacher Absences Worth Worrying About in the U.S.? 26 (Nov. 2007) (“students whose teachers miss more days for sickness score lower on state achievement tests”); Teacher Absences Hurting Learning, USA Today, Jan. 18, 2006 (citing University of Washington postdoctoral fellow Raegen Miller for the proposition that as few as ten teacher absences in a year cause significant loss in math achievement). Thus, what little information there is about the potential impact of the majority’s decision indicates that it would not redress the majority’s characterization of Appellants’ alleged injury—a “poorer quality education.”

In addition, were Appellants’ injury in fact defined as a “poorer quality education,” they would have difficulty proving that such an injury is “real and immediate, not conjectural or hypothetical.” City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (internal quotations omitted). It is speculative to conclude that all fully certified teachers provide a higher quality education than all teachers participating in alternative route programs. Compare Kati Haycock, Good Teaching Matters: How Well-Qualified Teachers Can Close the Gap 13 (1998) (noting that “[e]ducation courses completed, advanced education degrees, scores on professional knowledge sections of licensing exams, even, interestingly, years of experience . . . [do not] seem to have a clear relationship to student achievement”), and Thomas J. Kane, Jonah E. Rockoff & Douglas O. Staiger, Photo Finish: Certification Doesn’t Guarantee a Winner, Education Next 64 (Winter 2007) (noting that “a teacher’s certification status matters little for student learning”), with Linda Darling-Hammond, Access to Quality Teaching: An Analysis of Inequality in California’s Public Schools, 43 Santa Clara L. Rev. 1045, 1051 (2003)

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(noting that “[n]ational studies have . . . found that differences in teachers’ qualifications—including teachers’ general ability, knowledge of subject matter, preparation for teaching, and certification status, which reflects aspects of all of these other indicators—show significant effects on student achievement measured at the state, district, school, and individual student levels”) (citation omitted).

Appellants have sued under the APA to enforce the letter of NCLB. In passing NCLB, Congress asked states to develop “plans” to “identify steps” that they will take to ensure that “poor and minority children are not taught at higher rates than other children by inexperienced, unqualified, or out-of-field teachers.” 20 U.S.C. § 6311(b)(8)(C). Appellants allege that the federal regulation at issue has injured their right to not be taught by inexperienced teachers at a higher rate than “other children.” Their alleged injury should therefore be characterized as a lower proportion of experienced to inexperienced teachers instructing them as opposed to those instructing students in affluent areas. It is this alleged injury—the lower proportion itself—that I would consider as Appellants’ “real and immediate” alleged injury under the relevant statute. Lyons, 461 U.S. at 102.

The majority reasons that if it strikes down the Secretary’s definition of a “highly qualified” teacher, 34 C.F.R. § 200.56(a)(2)(ii)(A)(4), as inconsistent with Congress’ definition of a “highly qualified” teacher, 20 U.S.C. § 7801(23), Appellants’ alleged injury will be redressed. I cannot agree.

III

Appellants’ alleged injury is caused by a “third party not before the court.” Lujan, 504 U.S. at 560. If a plaintiff is “an object of the [challenged] action (or forgone action) . . . there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it.” Id. at 561-62. “When, however,

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as in this case, a plaintiff’s asserted injury arises from the government’s allegedly unlawful regulation (or lack of regulation) of someone else, much more is needed.” Id. at 562. As the Supreme Court has stated:

In that circumstance, causation and redressability ordinarily hinge on the response of the regulated (or regulable) third party to the government action or inaction—and perhaps on the response of others as well. The existence of one or more of the essential elements of standing depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict, and it becomes the burden of the plaintiff to adduce facts showing that those choices have been or will be made in such manner as to produce causation and permit redressability of injury. Thus, when the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily substantially more difficult to establish.

Id. (internal quotations and citation omitted).

In passing NCLB, Congress defined a “highly qualified” teacher as a teacher with “full State certification.” 20 U.S.C. § 7801(23). However, NCLB left the definition of “full State certification” entirely to the states—all of which are third parties not before us. To date, California has not defined “full State certification.” What California has done is issue its own regulations interpreting and implementing NCLB. Under California Code of Regulations, title 5, §§ 6101 and 6110, “[a] teacher who meets NCLB requirements” is one who “holds at least a bachelor’s degree and is currently enrolled in an approved intern program for less than three years,” or has a credential and meets other applicable testing requirements. Cal. Code Regs. tit. 5, §§ 6101(2), 6110(2). Thus, California

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considers teachers presently participating in alternative certification programs to be highly qualified for purposes of NCLB.

Appellants’ alleged injury is therefore caused by California’s credentialing scheme. But California is not—and seemingly could never be—a party to this suit. See Horne v. Flores, 129 S. Ct. 2579, 2598 n.6 (2009) (“NCLB does not provide a private right of action. . . . Thus, NCLB is enforceable only by the agency charged with administering it.”). As a result, Appellants’ injury “depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict.” Lujan, 504 U.S. at 562.

Because Appellants cannot bring suit against California, they have challenged the Secretary’s regulation. To have Article III standing to do so, however, Appellants must prove that their injury is fairly traceable to the challenged regulation. Lujan, 504 U.S. at 560. Aside from timing, Appellants present no evidence that California inextricably relied on the Secretary’s now-stricken regulation—as opposed to NCLB itself— in adopting its regime.

Therefore, Appellants cannot prove that the Secretary’s regulation caused the injury they allege. Instead, Appellants’ injury is “the result of . . . [California’s] independent action . . . [which is] not before the court.” Bennett v. Spear, 520 U.S. 154, 169 (1997) (internal quotations omitted). Because California could have classified non-certified intern teachers as “highly qualified” even in the absence of the federal regulation, Appellants have not demonstrated that they have been injured by the Secretary’s action.

IV

The majority’s disposition will not redress Appellants’ injury. A plaintiff meets the redressability test if it is “likely”

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—not certain—“that the injury will be redressed by a favorable decision.” Lujan, 504 U.S. at 561 (internal quotations omitted); Bonnichsen v. United States, 367 F.3d 864, 872 (9th Cir. 2004). While “[p]laintiffs need not demonstrate that there is a ‘guarantee’ that their injuries will be redressed by a favorable decision,” Graham v. Fed. Emergency Mgmt. Agency, 149 F.3d 997, 1003 (9th Cir. 1998), a “purely speculative favorable outcome will not suffice,” Rubin v. City of Santa Monica, 308 F.3d 1008, 1020 (9th Cir. 2002) (internal quotation omitted).

The majority does not strike down California’s regulation —the cause of Appellants’ alleged injury. Instead, the majority strikes down a federal regulation that is nowhere mentioned in the California regulation. For Appellants’ injury to be redressed, California—a third party not before us—will have to do something, but Appellants have not met their burden to prove that California would be coerced into doing anything in response to the majority’s holding. Cf. Bennett, 520 U.S. at 169.

Appellants argue that a declaration stating that the Secretary’s alternative route regulation is “unlawful and void,” would likely cause California to cease treating alternative route participants as highly qualified. Both parties agree that whether an alternative route participant holds “full State certification as a teacher (including certification obtained through alternative routes to certification)” is a matter of state law. Thus, redressability turns on whether, absent the regulation, California would continue to consider teachers participating in alternative routes fully certified. But because California is not a party to this suit, we have little reason—beyond speculation—to believe it will change its regulatory scheme in any way as a result of Appellants’ victory.

The majority argues that the current California regulations “piggyback” on 34 C.F.R. § 200.56(a)(2)(ii), and if that section is struck down, “California [will be] very likely out of

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compliance with NCLB” and will therefore be forced to amend its credentialing scheme. Maj. Op. at 16337. I disagree. The very language of California Code of Regulations, title 5, §§ 6101 and 6110 indicates that a teacher who holds a bachelor’s degree and who is enrolled in an approved intern program “meets NCLB requirements,” not the requirements of the Secretary’s regulations. Even assuming that §§ 6101 and 6110 were enacted to conform to both 34 C.F.R. § 200.56 and NCLB itself, there is nothing in §§ 6101 and 6110 that ties their validity to that of § 200.56. The “Reference” section in the notes to §§ 6101 and 6110 includes a citation to NCLB’s statutory definition of “highly qualified,” 20 U.S.C. § 7801(23), but does not reference the Secretary’s definition in § 200.56. Indeed, § 200.56 is not mentioned in either § 6101 or § 6110, even though these sections were enacted after § 200.56. Finally, the “Authority cited” for §§ 6101 and 6110 is California Education Code § 12001, which gives the State Board of Education authority to “adopt rules and regulations for the allocation of federal funds,” but nowhere requires it to conform these “rules and regulations” to federal regulations. Cal. Educ. Code § 12001.

Appellants argue that because California allegedly changed its laws to comply with NCLB and its implementing regulations once before, it will do so again if the Secretary’s implementing regulation is revoked. But Appellants fail to cite any other evidence indicating that revocation of the Secretary’s regulation would have a coercive effect upon California. It is not just that California could change its state law definition of “full credential” to include alternative route participants. California could instead decide to keep its regulatory scheme in its currently ambiguous state. The majority admits as much. See Maj. Op. at 16339 (noting there is “no evidence indicating that, in the event the federal regulation is held invalid, California will change its credentialing law”). Even with the federal regulation stricken, the existing California regulations would continue to credit an intern as “[a] teacher who meets

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NCLB requirements.” Cal. Code Regs. tit. 5, §§ 6101(2), 6110(2).

The majority also overestimates the coercive power that the Secretary has over California, citing 20 U.S.C. § 1234c for the proposition that the Secretary “may withhold funds or take other enforcement action if a state fails to comply substantially with NCLB’s requirements.” Maj. Op. at 16323. Contrary to the majority’s conclusion, Congress has made it clear that the Secretary may not tie federal funding specifically to certification standards. See 20 U.S.C. § 7910(b) (“The Secretary is prohibited from withholding funds from any State educational agency or local educational agency if the State educational agency or local educational agency fails to adopt a specific method of teacher or paraprofessional certification.”); id. § 7910(a) (“[N]o funds available to the Department or otherwise available under this chapter may be used for any purpose relating to a mandatory nationwide test or certification of teachers or education paraprofessionals.”). This specific prohibition on withholding funds based on the “certification of teachers” must trump the Secretary’s general power to withhold funds for “failing to comply substantially” with NCLB. See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992) (“[I]t is a commonplace of statutory construction that the specific governs the general.”).

The majority attempts to circumvent this argument by stating that the question in this case is not whether the Secretary has the authority to dictate how teachers are certified, but rather, “whether the Secretary has the authority to withhold funds when a State fails to take steps to ensure that students in minority and low-income schools are not taught disproportionately by teachers without ‘full State certification’ as the state then defines ‘full certification.’ ” Maj. Op. at 16339. This is a distinction without a difference. Were the Secretary to withhold desperately needed funds from California based on the majority’s interpretation of California’s certification process, the Secretary would in effect be imposing on Califor-

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nia a federal interpretation of California’s own law. Under 20 U.S.C. § 7910(b), the Secretary cannot use the power of the federal purse to compel California to adopt a given standard to determine who is fully State certified, but that is precisely what the majority’s decision attempts to force the Secretary to do.

In enacting NCLB, Congress merely required the states to adopt a “plan” that describes

the specific steps the State educational agency will take to ensure that both schoolwide programs and targeted assistance schools provide instruction by highly qualified teachers as required by sections 6314(b)(1)(C) and 6315(c)(1)(E) of this title, including steps that the state educational agency will take to ensure that poor and minority children are not taught at higher rates than other children by inexperienced, unqualified, or out-of-field teachers, and the measures that the State educational agency will use to evaluate and publicly report the progress of the State educational agency with respect to such steps.

20 U.S.C. § 6311(b)(8)(C). Moreover, 34 C.F.R. § 200.57, the regulation relating to teacher quality, does not require states to force teachers to work at a particular school. Nor does it even require that a balance exist in practice. What § 200.57 does require is that states “establish annual measurable objectives” and describe the steps and strategies the state will use to ensure teacher parity. 34 C.F.R. § 200.57(a)(2). The regulation also requires school districts to develop a plan to ensure that

[t]hrough incentives for voluntary transfers, professional development, recruitment programs, or other effective strategies, minority students and students from low-income families are not taught at higher

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rates than other students by unqualified, out-of-field, or inexperienced teachers.

Id. § 200.57(b)(2).

These minimal requirements highlight why Appellants’ injuries are not redressable. The majority repeatedly assumes that the State of California can simply assign or redistribute highly qualified teachers. These teachers are human beings. They are not pawns on a chess board that can be redistributed at will. Even in the absence of the regulation the majority strikes down, there is no requirement that California reconsider any such teacher allocations, only that it “establish annual measurable objectives,” 34 C.F.R. § 200.57(a)(2), develop a plan with “incentives for voluntary transfers,” id. § 200.57(b)(2), and “report [on its] progress,” 20 U.S.C. § 6311(b)(8)(C).

In short, the majority may strike down a portion of 34 C.F.R. § 200.56, but its disposition cannot compel California to entice better teachers to work in low-income areas. There is simply no basis in the record to believe that California will adopt incentive programs to encourage the voluntary transfer of fully State certified teachers—whoever they may be—as the result of the majority’s disposition. Given California’s current budget woes, that result is speculative indeed. Even if California had the practical means to enact such incentive programs for each locally-controlled school district, the decision to do so lies squarely within the kind of “broad and legitimate discretion the courts cannot presume either to control or to predict,” Lujan, 504 U.S. at 562, and as a result, Plaintiffs do not have standing.

The majority nevertheless holds that California is likely to change its current policies and attempt to redistribute its fully State certified teachers by creating new incentive programs out of fear of being labeled a “scofflaw” and that there is therefore a significant likelihood that Appellants’ injuries will

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be redressed. Maj. Op. at 16339. But this argument again boils down to how “fully State certified” is defined—a question that has left us grappling with California’s ambiguous certification scheme without the benefit of California’s input. Despite the fact that California is not a party to this suit and we are bereft of the State’s own interpretation of its certification scheme, the majority has proceeded to adopt a definition of “fully State certified” that excludes interns. While the majority’s analysis on the subject is thorough, I think it unlikely that California “would feel compelled to accede to the legal view of a . . . court expressed in a case to which it was not a party.” Lujan, 504 U.S. at 571 n.5 (Scalia, J., concurring).

Accordingly, Appellants have failed to meet their burden of establishing redressability.

V

Appellants cannot establish the requirements of causation or redressability necessary to confer Article III standing under Lujan. We should hold they have no standing and direct dismissal of the case.

 
 No. 08-16661 United States Court of Appeals
For The Ninth Circuit
SONYA RENEE ET AL., Plaintiffs-Appellants,
v. ARNE DUNCAN, in his official capacity; UNITED STATES DEPARTMENT OF EDUCATION,
Defendants-Appellees
Appeal from the United States District Court for the Northern District of California Case No. 3:07-cv-04299-PJH
PLAINTIFFS’-APPELLANTS’ RESPONSE TO PETITION FOR REHEARING AND REHEARING EN BANC

JOHN T. AFFELDT TARA KINI PUBLIC ADVOCATES, INC. 131 Steuart Street, Suite 300 San Francisco, CA 94105 Tel: (415) 431-7430
DAVID B. COOK GOODWIN PROCTER LLP 901 New York Avenue, N.W. Washington, D.C. 20001 Tel: (202) 346-4000

JEFFREY A. SIMES GOODWIN PROCTER LLP The New York Times Building 620 Eighth Avenue New York, New York 10018 Tel: (212) 813-8879
PATRICK THOMPSON GOODWIN PROCTER LLP 101 California Street # 1850 San Francisco, California 94111 Tel: (415) 733-6000

Attorneys for Plaintiffs-Appellants Sonya Renee, et al.

TABLE OF CONTENTS Page
INTRODUCTION .....................................................................................................1 FACTUAL STATEMENT ........................................................................................4 ARGUMENT .............................................................................................................9
I. CONGRESS’S FUNDING OF CERTAIN ALTERNATIVE TEACHER PREPARATION PROGRAMS IS CONSISTENT WITH NCLB...................................9
II. PLAINTIFFS HAVE STANDING AS THEIR INJURIES ARE REDRESSABLE............13 III. THE PANEL’S RULING WILL IMPROVE EDUCATION IN CALIFORNIA. ..............17 CONCLUSION ........................................................................................................19
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CASES

TABLE OF AUTHORITIES

Page(s)

Aaron v. SEC, 446 U.S. 680 (1980)............................................................................................10

Alaska Ctr. for the Environment v. Browner, 20 F.3d 981 (9th Cir. 1994) ................................................................................18

Bennett v. Spear, 520 U.S. 154 (1997)........................................................................................8, 14

Beno v. Shalala, 30 F.3d 1055 (9th Cir. 1994) ..............................................................................17

California Cosmetology Coalition v. Riley, 110 F.3d 1454 (9th Cir. 1997) ............................................................................13

Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59 (1978)..............................................................................................16

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000)............................................................................................13

Fed. Election Comm’n v. Akins, 524 U.S. 11 (1998)........................................................................................17, 18

Franklin v. Massachusetts, 505 U.S. 788 (1992)..............................................................................................2

Morris v. Williams, 67 Cal. 2d 733 (1967) .........................................................................................15

Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981)................................................................................................14

Rapanos v. United States, 547 U.S. 715 (2006)............................................................................................10

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Riles v. Bennett, 831 F.2d 875 (9th Cir. 1987) ..............................................................................14
Utah v. Evans, 536 U.S. 452 (2002)........................................................................................2, 17
Woods v. Superior Court, 28 Cal. 3d 668 (1981) .........................................................................................15
Woods v. United States, 724 F.2d 1444 (9th Cir. 1984) ............................................................................14
STATUTES AND RULES 20 U.S.C. § 1161f(a) ................................................................................................11 20 U.S.C. § 1161f(c)(1) ...........................................................................................10 20 U.S.C. § 1234c ....................................................................................................14 20 U.S.C. § 6311(a) ............................................................................................4, 12 20 U.S.C. § 6311(b)(8)(C) ...................................................................................4, 12 20 U.S.C. § 6311(h) .............................................................................................4, 12 20 U.S.C. § 6312(b)(1)(N) ...................................................................................4, 12 20 U.S.C. § 6319(a)(2)-(3).........................................................................................4 20 U.S.C. § 6319(b)(1).........................................................................................4, 12 20 U.S.C. § 6573(a)(1).........................................................................................8, 14 20 U.S.C. § 6613......................................................................................................12 20 U.S.C. § 6623(a) ...........................................................................................10, 12 20 U.S.C. § 6674..................................................................................................5, 12 20 U.S.C. § 6682..................................................................................................5, 12
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20 U.S.C. § 6683..................................................................................................5, 12 20 U.S.C. § 7801(23)(A)..................................................................................1, 4, 11 CAL. GOV’T CODE § 11342.2 ...................................................................................15 CAL. EDUC. CODE § 12000 .............................................................................8, 14, 15 CAL. EDUC. CODE § 12032 .........................................................................................8 34 C.F.R. § 200.56(a)(2)(ii) ...................................................................................1, 6
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INTRODUCTION The law of the land, as enacted by Congress in the No Child Left Behind Act of 2001 (“NCLB”), is that only “highly qualified” teachers—defined as those who have “obtained full State certification as a teacher”—may teach the core curricula to the nation’s children. 20 U.S.C. § 7801(23)(A)(i). Defendant Secretary of Education’s (“ED’s”) regulation directly countermanded Congress’s enactment by permitting intern teachers who are merely making “progress toward full [State] certification,” to be treated as “highly qualified” by states and districts. 34 C.F.R. § 200.56(a)(2)(ii) (emphasis added). All three members of the panel concluded that ED’s regulation contradicts NCLB’s clear language. Simply put, one cannot have “obtained” full certification if one is merely pursuing it. ED argues, as it has before, that Congress could not have meant what it said because it also funded certain alternative teacher preparation programs, such as Teach For America (“TFA”) and Troops-to-Teachers whose participants lack full certification. But this is a false dichotomy. When NCLB was enacted in 2001, Congress recognized that shortages of fully-certified teachers existed which would make it a challenge for all states to achieve 100% highly qualified teachers by 2006 as NCLB expected. Congress thus keenly understood the need to create an ample pipeline of future highly qualified teachers in alternative (as well as
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traditional) certification programs to meet the stated goal by 2006 and beyond. There is no inconsistency here: Congress’s requirement of fully State-certified teachers cannot be met without viable preparation programs, and thus it is expected that Congress would fund preparation programs that will produce tomorrow’s fully-certified graduates.
ED next challenges Plaintiffs’ standing to sue on the ground that California, which is not a party here, might simply ignore the invalidation of ED’s regulation and thus Plaintiffs’ injuries are not redressable. But both state and federal law expressly obligate California to comply with and enact regulations consistent with NCLB. Far from assuming the State will ignore the legal effect of the challenged regulation’s rescission, courts presume public entities will follow the law. Utah v. Evans, 536 U.S. 452, 460 (2002); Franklin v. Massachusetts, 505 U.S. 788, 803 (1992). The theoretical possibility that California might not, or might even attempt to alter its teacher certification statutes in such a way as to restore the status quo ante, is precisely the kind of speculation that the courts have consistently found do not defeat standing. Moreover, Plaintiff Californians for Justice has already twice successfully sued under the State Administrative Procedures Act (“APA”) to force California regulations into compliance with NCLB’s highly qualified standard. Because the Court’s invalidation of ED’s regulation plainly alters the legal regime
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to which California is subject—exposing it to both a violation of federal law and another State APA challenge—Plaintiffs meet the redressability requirement.
Finally, implicit in ED’s request for an en banc rehearing is the notion that the panel’s ruling will adversely affect public school education in California and elsewhere. ED has it backwards: it is the regulation that has watered down teacher quality and deprived the system of the accountability Congress sought, resulting in disproportionate numbers of underprepared, novice teachers in the poorest and highest minority schools. NCLB does not prohibit the use of non-highly qualified teachers, but it does require that their use be restricted to situations of genuine teacher shortages, and subject to reporting their use to parents, the public and Congress and a plan for lessening their prevalence. Invalidating ED’s regulation will not deprive children of a single teacher, but it will deprive states and districts of the ability to hide behind the regulation to mask their continued use of intern teachers-in-training and their concentration of those interns in the schools most in need of fully-prepared, experienced teachers.
Although Plaintiffs-Appellants do not dispute the importance of the issues raised by this case, Plaintiffs-Appellants respectfully submit that en banc rehearing is neither warranted nor necessary in light of the issues raised by ED.
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FACTUAL STATEMENT A key component of NCLB’s promotion of academic achievement and
accountability is that students be taught by “highly qualified” teachers. Congress
specified that a “highly qualified” teacher is one who “has obtained full State
certification as a teacher (including certification obtained through alternative routes
to certification) or passed the State teacher licensing examination, and holds a
license to teach in such State . . . .” 20 U.S.C. § 7801(23)(A). NCLB provided
that by the end of the 2005-2006 school year, only “highly qualified” teachers
should teach the core curricula. 20 U.S.C. § 6319(a)(2)-(3).
At the same time, Congress understood that 100% compliance with the
“highly qualified” teacher requirement might well not be met by 2005-2006, and
thus it required states and districts even after that deadline to: (a) continue to report which teachers are not highly qualified,1 (b) continue to develop plans for
100% compliance, (c) report on their ongoing progress, and (d) distribute non-
highly qualified teachers in an equitable manner. 20 U.S.C. §§ 6311(a),
6312(b)(1)(N), 6319(b)(1), 6311(b)(8)(C).
1 Parents in low-income Title I schools, for example, are to be notified if their children are taught by a non-highly qualified teacher for more than four weeks. 20 U.S.C. § 6311(h)(6)(B)(ii). School, districts, and states are required to report to the public and states are required to report to Congress through ED on the number of not-highly qualified teachers employed. 20 U.S.C. §§ 6311(h), 6319(b)(1).
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Congress also sought to ensure an adequate supply of fully-certified, “highly qualified” teachers by funding preparation programs such as “Troops-to-Teachers” and “Transition-to-Teaching,” whose participants must be assigned to “high-need” districts and/or schools experiencing teacher shortages where they commit to remain after graduating. See 20 U.S.C. §§ 6674, 6682-83. Even still, Secretary Spellings stated that “[s]tates that do not quite reach the 100 percent goal by the end of the 2005-06 school year will not lose federal funds if they are implementing the law and making a good-faith effort to reach the HQT goal in NCLB as soon as possible.” ER447 (emphasis added).
When NCLB was enacted, ED acknowledged that Congress meant exactly what it said in its definition of “highly qualified” teachers. For example, guidance to states issued in June 2002, answered the question “What is meant by ‘full State certification’?,” by asserting that it “means that the teacher has fully met those State requirements that apply to the years of experience the teacher possesses.” ER709 at C-2 (emphasis added), which typically means, like in California, completion of teacher preparation. Nonetheless, ED shortly thereafter conceded it was making an “exception” (ER680-681) to the requirement that a teacher have “obtained full State certification” and that such requirement not be temporarily or provisionally waived by enacting the regulation challenged here, which provides
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that interns who are merely making “progress toward full [State] certification,” may be deemed “highly qualified” by states and districts. 34 C.F.R. § 200.56(a)(2)(ii) (emphasis added).
The consequence of ED’s regulation has been a vast increase in the number of intern teachers in California, particularly in schools and districts with large numbers of low-income and minority students. The number of interns in California rose approximately 50%, from 7,251 in 2001-2002, immediately prior to the regulation’s promulgation, to 10,716 in 2006-2007. See ER516, 518. Students in schools that are nearly entirely minority are five times more likely to have intern teachers than students in schools with the lowest minority concentration, and the poorest performing schools are disproportionately saddled with interns. ER339, 330. Moreover, because ED’s regulation permitted California to mislabel these interns as “highly qualified” from the first day of their enrollment in an alternative preparation program, California has not had to report their continued and growing use either to parents, the public, or Congress and has not had to develop a plan to decrease their numbers. Prior Proceedings
On June 17, 2008, the District Court granted summary judgment in favor of ED, concluding that the relevant part of the statute—“has obtained full State
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certification as a teacher (including certification obtained through alternative routes to certification)”—was ambiguous and deferred to ED’s authority to interpret ambiguous provisions. 2008 U.S. Dist. LEXIS 49369 at *20-21 (N.D. Cal. 2008).
On July 23, 2009, the initial panel decision of this Court, making no mention of the District Court’s analysis, nonetheless disagreed with the determination that ED’s regulation was ambiguous and that it did not conflict with NCLB. See, e.g., Opinion, 573 F.3d 903, 907-08, 911 n.8 (9th Cir. 2009) (noting that interns do not have full certification in California and that “there is no disagreement based on the law” with the dissent). The majority differed from Judge Fletcher’s dissent only on the question of redressability, holding that a favorable ruling would not redress Plaintiffs’ injuries because “[t]his court could order a revision of the regulation, but California is free to disregard the Secretary.” Id. at 912.
On September 27, 2010, in response to Plaintiffs’ petition for rehearing, the panel withdrew its prior opinion and concluded (with Judge Tallman dissenting) that Plaintiffs have standing. The heart of Plaintiffs’ petition was a refutation of the original majority’s conclusion that California State Board of Education (“SBE”) regulations implementing the “highly qualified” requirement could expand either NCLB’s “highly qualified” definition or California’s full certification standard. The SBE is required by state and federal law to implement a
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“highly qualified” definition consistent with NCLB (20 U.S.C. § 6573(a)(1); Cal. Educ. Code §§ 12000, 12032) and utterly lacks any authority to modify the State’s full certification standard, such being the exclusive province of the Legislature and a separate state agency, the California Commission on Teacher Credentialing. Pltfs Rehearing Pet. at 7, 5-10. Agreeing, the new panel majority held that Plaintiffs could meet their “relatively modest” burden (quoting Bennett v. Spear, 520 U.S. 154, 171 (1997), Opinion at 16336) because the relevant SBE regulations “do not change the definition of fully credentialed under California law” but rather “piggyback[ed]” on the federal regulation to label teachers enrolled in intern programs as “highly qualified.” Opinion at 16337. Thus, because intern teachers are not, in fact, fully-certified under California law, the invalidation of the federal regulation would necessarily involve a change in legal status sufficient to render the SBE regulations inconsistent with NCLB and satisfy redressability. Id.
The panel further ruled that ED’s regulation contradicted Congress’s unambiguous directive that only a teacher who “has obtained” full State certification may be highly qualified. Id. at 16333. Notably, the dissent agreed with the majority’s interpretation of the statute and the regulation’s conflict with it, disagreeing, again, only on redressability. Id. at 16341.
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ARGUMENT
I. Congress’s Funding of Certain Alternative Teacher Preparation Programs Is Consistent With NCLB. The main premise of ED’s request for rehearing is false. ED argues that
because Congress funded alternative route programs such as Troops-to-Teachers, Transition-to-Teaching and Teach For America, it could not possibly have meant a heightened definition of “highly qualified” teachers in NCLB to exclude those same teachers from the classroom.
This argument fails for two reasons. First, Congress understood that creating a pipeline of new teachers was essential to meeting the future goal of having highly qualified teachers in every classroom, and it looked to teacher preparation programs (both traditional and alternative routes) as means to this end. NCLB’s provisions show that, when enacted in 2001, Congress contemplated it would take several years for districts and states to comply—e.g., full compliance with the “highly qualified” requirement was not expected until five years after enactment. To aid the process along, Congress provided support for robust teacher preparation channels. Programs such as Troops-to-Teachers and TFA were funded to create a pipeline of highly qualified teachers. Nothing in the language of these
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statutes suggests that Congress believed these new interns to be highly qualified
from the get-go.
To the contrary, the very statutes cited by ED confirm that Congress did not
view these new teacher recruits as highly qualified ab initio. Title II, Part A of the
ESEA, for example, provides funds for the training of “teachers who become
highly qualified through State and local alternative routes to certification.” 20
U.S.C. § 6623(a)(2)(C)(iii) & (a)(7) (emphasis added). The 2008 Higher
Education Opportunity Act (“HEOA”) similarly gave a grant to TFA to “provide
highly qualified teachers” to areas of “high need.” 20 U.S.C. § 1161f(c)(1).2
Nowhere in either NCLB or the HEOA, however, does Congress state its belief or
understanding that new interns are highly qualified before they have completed
their alternative preparation program and “obtained full State certification.”3
2 ED suggests that because Congress did not act to strike down the regulation, it should be deemed to have acquiesced to it. But Congressional acquiescence may only be assumed in the rare circumstance “when there is evidence that Congress considered and rejected the ‘precise issue’ presented before the Court[,]” which is not the case here. Rapanos v. United States, 547 U.S. 715, 737-38 (2006) (emphasis in original) (citing SWANCC v. United States Army Corps of Eng’rs, 531 U.S. 159, 169-170 n.5 (2001)); see also Aaron v. SEC, 446 U.S. 680, 694 n.11 (1980). Here, Congress has failed to make a single amendment to NCLB since it was first passed in 2001, much less considered and rejected any amendment to NCLB’s “highly qualified” teacher definition. 3 Amici TFA, et al. (hereinafter Amici TFA) wrongly contend that “lawmakers specifically identified alternative certification programs as a key element in state
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Second, ED’s argument fails to take into account the important role that non-
highly qualified teachers continue to play in the statutory scheme even after the
2005-06 deadline for 100% highly qualified teachers. NCLB anticipates that there
will be areas of teacher shortages, emergencies and similar contingencies in which
it will be necessary to employ interns or other non-fully-certified teachers. These
teachers are not prohibited from a classroom role, even in the core curricula, but
rather a state or district that employs them is obligated to report their resort to such
teachers (to parents, the public, and Congress), must equitably distribute them so
that the burdens are not borne disproportionately by low-income and minority
students, and must develop a plan for lessening reliance on such less-than-fully-
prepared and fully-certified teachers. See, e.g., 20 U.S.C. §§ 6311(a),
plans for the Race to the Top grant program competition.” TFA Br. at 4-5. The American Recovery and Reinvestment Act (“ARRA”) says nothing about alternative certification programs, and in fact reiterates—word for word— Congress’s directive in NCLB to states to “address inequities in the distribution of highly qualified teachers between high- and low-poverty schools, and to ensure that low-income and minority children are not taught at higher rates than other children by inexperienced, unqualified, or out-of-field teachers.” P.L. 111-5, § 14005(d)(2) (2009). Thus, as recently as 2009, Congress evidenced its recognition that states had not yet met the 100% highly-qualified teacher goal and required additional incentives to achieve equity in teacher distribution. Moreover, ARRA and the HEOA, like Title II of NCLB, simply define highly qualified teachers by reference back to the plain language of 20 U.S.C. § 7801(23)(A). See P.L. 111-5 § 14013(6), 20 U.S.C. § 1161f(a).
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6312(b)(1)(N), 6311(b)(8)(C), 6311(h), 6319(b)(1).4 In other words, it is illogical
for ED to argue that non-highly qualified interns will have to be replaced with even
less qualified substitutes. Instead, intern teachers will continue to play a “stop
gap” role, but subject to accountability, fairness and the specific safeguards
established by Congress in NCLB. NCLB, as properly construed by the Court, in
no way obviates the need for or use of alternative preparation programs.
As noted above, ED itself has made clear that states that resort to non-highly
qualified teachers after 2005-06 to address shortages are not subject to the loss of
federal funds. ER447. The use of some number of non-highly qualified teachers is
contemplated by the statutory scheme—and by ED itself—as inevitable and
potentially probative of “good faith” interim efforts to meet the statutory standard
in high-need areas. Id.
4 “Troops-to-Teachers” and “Transition-to-Teaching” participants must be assigned to “high-need” districts and/or schools experiencing teacher shortages that are, by definition, already out of compliance with NCLB’s highly qualified teacher requirement. See 20 U.S.C. §§ 6674, 6682-83. See also 20 U.S.C. §§ 6613, 6623 (Title II, Part A grant funds may be used, inter alia, to redress teacher shortages through alternative route programs). Hiring non-highly qualified alternative route participants does not put districts in further violation of NCLB. Instead, districts with teacher shortages are able to fill teacher vacancies and replace substitute or other underprepared teachers with alternative route participants who—though they are not yet fully-certified, highly qualified teachers—have subject matter knowledge, are in a fast-track program to obtain full certification and become “highly qualified,” and have committed to stay in the district for at least three years. 20 U.S.C. §§ 6674, 6683.
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Thus, ED is correct that statutes must be construed if at all possible to fit into “an harmonious whole.” Defs. Pet. at 15, quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132-33 (2000). Plaintiffs’ reading clearly does that—harmonizing Congress’s desire that all core classes be taught by fully-certified teachers with its support in Title II for alternative preparation routes as one means to that eventual end. ED’s attempt to manufacture an inconsistency so as to override the plain language requirement that all highly qualified teachers “ha[ve] obtained full State certification” must be rejected as inconsistent with this “fundamental canon of statutory construction.” Id.; California Cosmetology Coalition v. Riley, 110 F.3d 1454, 1460 (9th Cir. 1997) (courts “must presume that Congress acts with deliberation, rather than by inadvertence”).
II. PLAINTIFFS HAVE STANDING AS THEIR INJURIES ARE REDRESSABLE. The panel correctly found Plaintiffs’ injuries redressable and rejected ED’s
contention (raised for the first time on appeal) that Plaintiffs lacked standing. ED’s rehash of this argument fails for several reasons.
First, it is incorrect that California is at liberty to ignore the invalidation of ED’s regulation as federal law compels compliance. Because California receives funds under NCLB, it must comply with NCLB’s conditions and requirements.
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See Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981); Riles v.
Bennett, 831 F.2d 875, 877 (9th Cir. 1987); Woods v. United States, 724 F.2d
1444, 1449 (9th Cir. 1984). NCLB itself requires that state regulations be
consistent with the Act, 20 U.S.C. § 6573(a)(1), and it explicitly provides that the
Secretary may withhold funds or take other enforcement action if a state fails to comply with NCLB. See 20 U.S.C. § 1234c.5 This is more than sufficient to
create a coercive effect on California to confer standing. Bennett v. Spear, 520
U.S. 154, 169 (1997).
Second, state law also binds California to comply with NCLB. California
Education Code § 12000 only authorizes the SBE to act to implement federal
education spending statutes “insofar as consistent with the requirements prescribed
by the federal law and implementing rules and regulations.” See also id. § 12032
(SBE must act under NCLB “in accordance with these acts of Congress and any
5 In a 2005 letter to all chief state school officers, Secretary Spellings stated:
[F]or states that either are not in compliance with the statutory HQT requirements or are not making good-faith effort to meet the goal of having all teachers highly qualified, the Department reserves the right to take appropriate action such as the withholding of funds. As a first requirement in a State’s effort to implement the law, it must have a definition of a “highly qualified teacher” that is consistent with the law. . . .
ER447 (emphases added); see also ER662 (July 23, 2007 Secretary’s Letter to States).
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rules and regulations adopted thereunder.”). In addition, California’s APA requires
that state regulations be consistent both with the statute they implement (Cal. Gov’t
Code § 11342.2), and with “existing statutes, court decisions, or other provisions of law.” Id. at §§ 11349(d), 11349.1(a)(4).6
Far from a theoretical possibility that the SBE could be liable under the State
APA for ignoring the rescission of ED’s regulation, in fact, Plaintiff Californians
for Justice (“CFJ”) has twice brought such actions to enforce the highly qualified
teacher standard in California. When the SBE initially adopted a highly qualified
definition that incorporated emergency credentialed teachers and did so without
promulgating its new rule as a regulation, CFJ sued to force the SBE to adopt the
very regulations now at issue in this action, knowing that doing so, inter alia,
would force the SBE to make such regulations consistent with NCLB and, thereby,
exclude emergency credentialed teachers. See Plaintiffs’ Request for Judicial Notice (November 15, 2010) at RJN1-43.7 Similarly, when the California
6 See Morris v. Williams, 67 Cal. 2d 733, 737-38 (1967) (affirming judgment declaring state regulations invalid as inconsistent with state and federal law under California APA); Woods v. Superior Court, 28 Cal. 3d 668, 672, 682 (1981) (same). 7 CFJ’s petition for a writ of mandate was denied as moot and/or not yet ripe inasmuch as, at the time of the decision, the SBE had foresworn enforcing the challenged highly qualified definition, Pltfs. RJN at 21-22, and later instituted APA proceedings to promulgate the regulations at issue in this case. In later
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Commission on Teacher Credentialing (“CTC”) sought to recharacterize some 3,000 emergency credentialed teachers as “Individualized Interns” and fit them, thereby, under the exception to full certification created by ED’s regulation, CFJ successfully sued again to void the CTC’s rule as having been promulgated in violation of the State APA. Id. at RJN44-66.
The notion that California might someday alter its teacher certification requirements to evade the Court’s ruling does not defeat standing. “Nothing in [the Supreme Court’s] cases requires a party seeking to invoke federal jurisdiction to negate . . . speculative and hypothetical possibilities . . . to demonstrate” redressability. Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 78 (1978). In fact, even the possibility that a defendant may later reimpose the same legal regime upon compelled reconsideration “does not defeat plaintiffs’ standing” under the redressability prong. Beno v. Shalala, 30 F.3d 1057, 1065 (9th Cir. 1994); Fed. Election Comm’n v. Akins, 524 U.S. 11, 25 (1998).
Redressability exists where a court-ordered “change in a legal status” results in a “significant increase in the likelihood that plaintiff would obtain relief.” Utah,
granting CFJ’s request for attorneys’ fees—made solely under a “catalyst” theory—the Superior Court implicitly found CFJ’s suit had catalyzed the SBE’s decision to abandon its unlawful definition and adopt a new definition under the APA. Id. at RJN23-43.
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RESPONSE TO PETITION FOR REHEARING & REHEARING EN BANC CASE NO. 08-16661

536 U.S. at 464. There is little doubt that that is the case here. The invalidation of ED’s regulation affirmatively requires, as a matter of both federal and state law, that California revise its copycat SBE regulations to remove the intern exception.
III. THE PANEL’S RULING WILL IMPROVE EDUCATION IN CALIFORNIA. The invalidation of ED’s regulation will not result in a parade of horribles,
but its opposite. As noted, the regulations’ voiding does not mean that interns can no longer teach in California or elsewhere, or that groups like TFA will have no role to play. Instead, the invalidation of the regulation will simply, and for the first time, apply rigor and daylight to what has previously lacked both. States and districts will not be at liberty to rely indefinitely on underprepared novice interns and concentrate them in low-income, high minority schools, and they will not be able to mislabel brand new interns as “highly qualified” teachers in communications with parents or reports to the public and Congress. If districts and states use interns to fill shortages or for other purposes, they will, for the first time, be held accountable. They will bear the political consequences of failing to supply fully-credentialed teachers and will have incentives, previously lacking, to provide inducements to attract such teachers and improve teacher preparation pipelines. Tellingly, Defendants (and Amici TFA) fail to mention NCLB’s critical
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transparency and accountability provisions related to highly qualified teachers in attempting to rebut Plaintiffs’ standing or otherwise.8
In short, the regulation has allowed California not only to evade its obligation to improve the preparedness of its teachers, but to deflect scrutiny from its actions. This is precisely the opposite of what Congress intended. The panel was correct to invalidate the regulation and end its undermining of NCLB’s core teacher quality provisions.
8 Amici TFA’s attempt to manufacture an injury-in-fact issue by quibbling with Congress’s full State certification standard has no place here. Plaintiffs need not prove the correctness of the standard Congress chose, only that they are being denied the benefits of having that standard operate as Congress intended. See, e.g., Alaska Ctr. for the Environment v. Browner, 20 F.3d 981 (9th Cir. 1994) (rejecting defendants’ standing argument as “untenable, because Congress has determined that the relief plaintiffs seek [there, procedural compliance with the Clean Water Act] is the appropriate means of achieving desired water quality”); see also Federal Election Comm’n v. Akins, 524 U.S. 11, 21-22 (1998) (injury-in-fact met where plaintiff denied “information which must be publicly disclosed pursuant to a statute”). (In fact, as the brief of Amici Title I Parents demonstrates [see Docket 48], there exists ample empirical evidence to support Congress’s standard.)
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CONCLUSION ED’s submission poses no grounds that warrant rehearing or rehearing en banc, and the request should be denied.

Dated: November 15, 2010

Respectfully submitted,
s/ John T. Affeldt s/ Tara Kini s/ Jeffrey A. Simes
JOHN T. AFFELDT TARA KINI PUBLIC ADVOCATES, INC.
JEFFREY A. SIMES GOODWIN PROCTER LLP

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RESPONSE TO PETITION FOR REHEARING & REHEARING EN BANC CASE NO. 08-16661

CERTIFICATE OF SERVICE Case No. 08-16661
My business address is 131 Steuart Street, Suite 300, San Francisco California 941051241 and I am employed in the City and County of San Francisco, State of California. I am over the age of 18 and not a party to this action.
I hereby certify that on November 15, 2010, I electronically filed the foregoing with the Clerk of the Court of the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system:
1. PLAINTIFFS’-APPELLANTS’ RESPONSE TO PETITION FOR REHEARING AND REHEARING EN BANC
2. PLAINTIFFS’-APPELLANTS’ MOTION TO STRIKE TFA ET AL. AMICUS BRIEF, OR, IN THE ALTERNATIVE, ORDER IT CORRECTED
3. PLAINTIFFS’-APPELLANTS’ REQUEST FOR JUDICIAL NOTICE
I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.
I further certify that on November 15, 2010, I caused true and correct copies of the above named documents to be served upon the person named below by electronic mail.
Alisa B. Klein Civil Division, Appellant Staff United States Department of Justice 950 Pennsylvania Ave., N.W. Room 7235 Washington, D.C. 20004 Tel. (202) 514-1597 Fax. (202) 514-8151 Alisa.Klein@usdoj.gov
I declare under penalty of perjury the foregoing is true and correct, and that I executed this certificate of service in San Francisco, California this 15th day of November 2010.
s/ Tara Kini
CERTIFICATE OF SERVICE CASE NO. 08-16661

 
 Case: 08-16661 11/12/2008 Page: 1 of 47 DktEntry: 6704283

No. 08-16661 ___________________________________________________________________ ___________________________________________________________________
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ______________________
SONYA RENEE, et al.,
Plaintiffs-Appellants,
v.
MARGARET SPELLINGS, as Secretary of Education, and UNITED STATES DEPARTMENT OF EDUCATION,
Defendants-Appellees. _______________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA No. 07-cv-04299 PJA _______________________
BRIEF FOR THE APPELLEES _______________________

Of counsel:
KENT D. TALBERT General Counsel Department of Education Washington, D.C. 20202

GREGORY G. KATSAS Assistant Attorney General
SCOTT N. SCHOOLS United States Attorney
MARK B. STERN (202) 514-5089
ALISA B. KLEIN (202) 514-1597 Attorneys, Appellate Staff Civil Division, Room 7235 Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C. 20530-0001

_________________________________________________________________ _________________________________________________________________

Case: 08-16661 11/12/2008 Page: 2 of 47 DktEntry: 6704283

TABLE OF CONTENTS

Page

STATEMENT OF JURISDICTION.. . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE ISSUES.. . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE.. . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . 5

I. Statutory And Regulatory Background.. . . . . . . . . 5

A. The No Child Left Behind Act Of 2001.. . . . . . 5

B. Teacher Qualifications.. . . . . . . . . . . . . 6

1. Empirical research linking teacher qualifications to student achievement.. . . 6

2. NCLB teacher qualification provisions.. . . 9

C. The 2002 Department Of Education Regulations.. 12

D. Subsequent appropriations and legislation. . . 14

II. District Court Proceedings. . . . . . . . . . . . . 14

SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . 17

STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . 19

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . 19

I. Plaintiffs Lack Standing Because The Relief They Seek Would Not Redress Their Alleged Injuries.. . . 19

II. The Alternative Route Regulation Is A Reasonable Interpretation Of The Statutory Requirements. . . . 24

A. Under Chevron and Pennhurst, The Regulation Must Be Sustained Unless It Is Directly Foreclosed By The Statutory Text.. . . . . . . 24

B. The Regulation Is Fully Consistent With The Statutory Definition Of “Highly Qualified” Teacher And With Other Relevant Provisions.. . 25

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Case: 08-16661 11/12/2008 Page: 3 of 47 DktEntry: 6704283 C. Plaintiffs’ Reliance On California Law Is Misplaced.. . . . . . . . . . . . . . . . . 35
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . 38 CERTIFICATE OF COMPLIANCE STATEMENT OF RELATED CASES CERTIFICATE OF SERVICE
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Case: 08-16661 11/12/2008 Page: 4 of 47 DktEntry: 6704283

TABLE OF AUTHORITIES

Cases:

Page

ACORN v. New York City Department of Education, 269 F. Supp. 2d 338 (S.D.N.Y. 2003).. . . . . . . . 15, 20, 21

Alliance for Children, Inc. v. City of Detroit Public Schools, 475 F. Supp. 2d 655 (E.D. Mich. 2007).. . . . . . . . . . . 20

Arlington Central School District Board of Education v. Murphy, 548 U.S. 291 (2006).. . . . . . . . . . . . . . . . . . . . 24

Bennett v. Kentucky Department of Education, 470 U.S. 656 (1985).. . . . . . . . . . . . . . . . . . 24, 25

Blessing v. Freestone, 520 U.S. 329 (1997).. . . . . . . . . . . . . . . . . . . . 20

Center for Biological Diversity v. National Highway Traffic Safety Administration,
538 F.3d 1172 (9th Cir. 2008).. . . . . . . . . . . . . . . 24

Center for Biological Diversity v. U.S. Fish & Wildlife Service, 450 F.3d 930 (9th Cir. 2006). . . . . . . . . . . . . . . . 19

Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).. . . . . . . . . . . . . . . . . . 24, 26

Earth Island Institute v. Ruthenbeck, 490 F.3d 687 (9th Cir. 2007), cert. granted, 128 S. Ct. 1118 (2008). . . 23

Flores v. Arizona, 516 F.3d 1140 (9th Cir. 2008).. . . . . . . . . . . 5, 20, 21

Gonzaga University v. Doe, 536 U.S. 273 (2002).. . . . . . . . . . . . . . . . . . 20, 21

Guerrero v. Clinton, 157 F.3d 1190 (9th Cir. 1998).. . . . . . . . . . . . . . . 23

Heckler v. Chaney, 470 U.S. 821 (1985).. . . . . . . . . . . . . . . . . . . . 33

Maryland Psychiatric Society v. Wasserman, 102 F.3d 717 (4th Cir. 1996). . . . . . . . . . . . . . . . 25

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Case: 08-16661 11/12/2008 Page: 5 of 47 DktEntry: 6704283
Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002).. . . . . . . . . . . . . . . 25
Pennhurst State School & Hospital v. Halderman, 451 U.S. 1 (1981).. . . . . . . . . . . . . . . . . . . . . 24
Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984). . . . . . . . . . . . . . . . . . . . . 36
Port of Seattle, Washington v. FERC, 499 F.3d 1016 (9th Cir. 2007).. . . . . . . . . . . . . . . 33
Statutes:
20 U.S.C. § 1161f.. . . . . . . . . . . . . . . . . . . . . . 18 20 U.S.C. § 1161f(a). . . . . . . . . . . . . . . . . 14, 18, 34 20 U.S.C. § 1161f(c). . . . . . . . . . . . . . . . . 14, 18, 34 20 U.S.C. § 1232c.. . . . . . . . . . . . . . . . . . . . . . 6 20 U.S.C. § 1234c.. . . . . . . . . . . . . . . . . . . . . . 6 20 U.S.C. § 6301 et seq.. . . . . . . . . . . . . . . . . 27, 37 20 U.S.C. § 6311(b)(8)(C).. . . . . . . . . . . . . . . . . . 9 20 U.S.C. § 6319(a)(1). . . . . . . . . . . . . . . . . . . 9, 34 20 U.S.C. § 6319(a)(2). . . . . . . . . . . . . . . . . . . . . 9 20 U.S.C. § 6319(a)(3). . . . . . . . . . . . . . . . . . . . . 9 20 U.S.C. § 6333. . . . . . . . . . . . . . . . . . . . . . . . 9 20 U.S.C. § 6601. . . . . . . . . . . . . . . 10, 11, 17, 30, 32 20 U.S.C. § 6613(c)(3). . . . . . . . . . . . . . . . 11, 12, 31 20 U.S.C. § 6623(a)(7). . . . . . . . . . . . . . . . . . 12, 31 20 U.S.C. § 6623(a)(2)(C)(iii). . . . . . . . . . . . . . 12, 31 20 U.S.C. § 6672. . . . . . . . . . . . . . . . . . . . . 12, 31 20 U.S.C. § 6674(a)(1)(B).. . . . . . . . . . . . . . . . . . 12 20 U.S.C. § 6681. . . . . . . . . . . . . . . . . . . . . . . . 3 20 U.S.C. § 6681(1).. . . . . . . . . . . . . . . . . . . 11, 30 20 U.S.C. § 6681(2).. . . . . . . . . . . . . . . . . . 3, 11, 30 20 U.S.C. § 7801(1).. . . . . . . . . . . . . . . . . . . . . . 9 20 U.S.C. § 7801(23)(A).. . . . . . . . . . . . . . . . . . 2, 3 20 U.S.C. § 7801(23)(A)(i). . . . . . . . . . . 3, 10, 11, 13, 25 20 U.S.C. § 7801(23)(A)(ii).. . . . . . . . . . . . . . . 10, 27 20 U.S.C. § 7801(23)(B).. . . . . . . . . . . . . . . . . . . 10 20 U.S.C. § 7801(23)(B)(ii).. . . . . . . . . . . . . . . . . 10 20 U.S.C. § 7801(23)(C).. . . . . . . . . . . . . . . . . . . 10 20 U.S.C. § 7844(a).. . . . . . . . . . . . . . . . . . . . . . 6 20 U.S.C. § 7910(a).. . . . . . . . . . . . . . . . . . . . . 26 20 U.S.C. § 7910(b).. . . . . . . . . . . . . . . . . . . 26, 37
28 U.S.C. § 706.. . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1331. . . . . . . . . . . . . . . . . . . . . . . 1
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Case: 08-16661 11/12/2008 Page: 6 of 47 DktEntry: 6704283
Pub. L. No. 107-110 (2002), 115 Stat. 1425. . . . . . . . . . 5 Pub. L. No. 110-315, 122 Stat. 3390, 20 U.S.C.A. § 1161f. 14, 34 Cal. Educ. Code § 44251(b)(2).. . . . . . . . . . . . . . 28, 29 Cal. Educ. Code § 44251(b)(3).. . . . . . . . . . . . . . . . 28 Cal. Educ. Code § 44256(a). . . . . . . . . . . . . . . . . . 29 Cal. Educ. Code § 44300.. . . . . . . . . . . . . . . . . . . 27 Cal. Educ. Code § 44301.. . . . . . . . . . . . . . . . . . . 27 Cal. Educ. Code §§ 44325 et seq.. . . . . . . . . . . . . 15, 26 Cal. Educ. Code §§ 44325(c)(1)-(3). . . . . . . . . . . . . . 26 Cal. Educ. Code § 44325(f). . . . . . . . . . . . . . . . 27, 38 Cal. Educ. Code §§ 44450 et seq.. . . . . . . . . . . . . 15, 26 Cal. Educ. Code § 44453.. . . . . . . . . . . . . . . . . . . 26 Cal. Educ. Code § 44453(b). . . . . . . . . . . . . . . . 27, 38
Regulations:
34 C.F.R. § 200.56(a)(2)(ii). . . . . . . . . . . . . . . . . . 3 34 C.F.R. § 200.56(a)(2)(ii)(A).. . . . . . . . . . . . . 13, 23 34 C.F.R. § 200.56(a)(2)(ii)(B).. . . . . . . . . . . 13, 23, 37 34 C.F.R. § 200.56(b).. . . . . . . . . . . . . . . . . . . . 12 34 C.F.R. § 200.56(c).. . . . . . . . . . . . . . . . . . . . 12 67 Fed. Reg. 71710 (December 2, 2002).. . . . 3, 12, 13, 23, 25
Legislative Materials: 147 Cong. Rec. S4145 (daily ed. May 2, 2001). . . . . . . . . 33 147 Cong. Rec. S13340 (daily ed. Dec. 17, 2001) . . . . . . . 33 H.R. Conf. Rep. 108-792 (2004). . . . . . . . . . . . . . . . 14 H.R. Conf. Rep. No. 108-10 (2003),
2003 U.S.C.C.A.N. 10, 200, 321. . . . . . . . . . . . . . . 14 H.R. Conf. Rep. No. 108-401 (2003),
2003 U.S.C.C.A.N. 3, 248. . . . . . . . . . . . . . . . . . 14 H.R. Conf. Rep. No. 109-337 (2005),
2006 U.S.C.C.A.N. 1531. . . . . . . . . . . . . . . . . . . 14
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STATEMENT OF JURISDICTION Plaintiffs invoked the district court’s jurisdiction under 28 U.S.C. §§ 706 and 1331. The district court entered final judgment for the government on July 2, 2008. Plaintiffs filed a timely notice of appeal on July 18, 2008. This Court has appellate jurisdiction under 28 U.S.C. § 1291.
STATEMENT OF THE ISSUES Plaintiffs challenge a federal regulation that established minimum standards that must be met for a teacher participating in an “alternative route to certification” program to be “highly qualified” within the meaning of the No Child Left Behind Act of 2001. The questions presented are: 1. Whether plaintiffs lack standing because the relief they seek would not redress their alleged injuries. 2. Assuming standing, whether the challenged regulation is a reasonable interpretation of the statute.
STATEMENT OF THE CASE This case concerns the interpretation of provisions of the Elementary and Secondary Education Act of 1965 (“ESEA”), as amended by the No Child Left Behind Act of 2001 (“NCLB”). The No Child Left Behind Act was a comprehensive reform of the ESEA, the federal spending program that provides funds to assist the states and their local school districts in the education of elementary and secondary school children. States that receive

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funds under the Act must comply with the Act’s requirements and ensure the compliance of their school districts.
Under Title I, Part A of the Act (“Title I”), states allocate federal funds to school districts and schools in high poverty areas. Congress provided that, beginning with the first day of the 2002-2003 school year, school districts were required to ensure that all teachers hired to teach in programs supported by Title I funds were “highly qualified” as defined in the Act, and that by the end of the 2005-2006 school year, all teachers were highly qualified (whether or not they taught in Title I programs and whether they were new hires or veteran teachers). In addition, states and districts were required to develop plans that would ensure that all teachers of core academic subjects were highly qualified by the end of the 2005-2006 school year, and identify steps they would take to prevent the concentration of inexperienced, unqualified or out-of-field teachers in low-income or minority areas. States and districts were required to report annually on the percentages of classrooms taught by highly qualified teachers, and schools with Title I programs were required to notify parents when their children are taught for four consecutive weeks by a teacher who is not highly qualified.
Congress defined “highly qualified” to mean that a teacher has (1) a bachelor’s degree, (2) demonstrated knowledge of the subjects he or she teaches, and, as particularly relevant here,
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(3) “full State certification as a teacher (including certification obtained through alternative routes to certification).” 20 U.S.C. § 7801(23)(A). In the same legislation, Congress also enacted programs that expressly encourage the states and school districts to recruit teachers through alternative route programs, particularly to teach in high-need schools. See, e.g., id. § 6681. These programs “enable individuals to be eligible for teacher certification within a reduced period of time, relying on the experience, expertise, and academic qualifications of an individual, or other factors in lieu of traditional course work in the field of education.” Id. § 6681(2).
In 2002, the Department of Education (“DOE”) issued regulations implementing Title I. As relevant here, the regulations established minimum standards that must be met if a teacher participating in an alternative route to certification program is to be considered fully certified, and thus highly qualified, for purposes of NCLB. 34 C.F.R. § 200.56(a)(2)(ii) (the “alternative route regulation”). In issuing this regulation, the Department rejected the suggestion that, in enacting 20 U.S.C. § 7801(23)(A)(i), Congress intended to deny school districts implementing Title I programs the flexibility to recruit and hire participants in alternative route programs as teachers. 67 Fed. Reg. 71710, 71764 (December 2, 2002).
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Plaintiffs are several California public school students and their parents, joined by two California-based organizations. They filed this lawsuit in 2007, five years after the alternative route regulation was issued, alleging that the regulation is inconsistent with the statute. Plaintiffs allege that they have been harmed by the regulation because, in the years since the regulation was issued, California and its school districts have hired thousands of alternative route participants, Amended Complaint ¶63 (ER756), allowed these teachers to be concentrated in low-income and minority areas, id. ¶64 (ER757), and treated the teachers as highly qualified for reporting and parental notification purposes, id. ¶¶17-40, 66-74 (ER734-745, 757-761).
Plaintiffs did not name California or its school districts as defendants. Instead, they sued the Secretary of Education, seeking a declaration that the alternative route regulation is invalid. ER763. They also sought to compel the Secretary to correct alleged inaccuracies in reports to Congress and to notify the states of the regulation’s alleged invalidity. ER764-765.
The district court entered summary judgment for the government, holding that the challenged regulation was a reasonable interpretation of the statute. ER2. The court explained that the statutory definition of “highly qualified” was ambiguous because Congress did not define what it means to have “full State certification (including certification obtained
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through alternative routes to certification).” ER9, 11-12. The court held that the agency’s interpretation was reasonable and consistent with the statutory provisions in the Act that expressly encouraged the states to develop alternative route programs and authorized school districts to recruit teachers who participated in them. ER11-13.
STATEMENT OF FACTS I. Statutory And Regulatory Background
A. The No Child Left Behind Act Of 2001 The No Child Left Behind Act of 2001 was signed into law on January 8, 2002. See Pub. L. No. 107-110 (2002), 115 Stat. 1425. The No Child Left Behind Act is a comprehensive reform of the Elementary and Secondary Education Act of 1965, the federal spending program that provides billions of dollars each year to assist the states and their local school districts in the education of elementary and secondary school children. As this Court has explained, the No Child Left Behind Act placed conditions on receipt of federal education funds that were designed to bring about “overall, gradual school improvement.” Flores v. Arizona, 516 F.3d 1140, 1172 (9th Cir. 2008). The Act’s various provisions, including the teacher qualification provisions at issue in this case, are means to that end. The Secretary of Education is vested with authority to enforce NCLB, and may withhold funds or take other enforcement
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action if a state fails to comply substantially with the Act’s requirements. Id. § 1234c. States are responsible for ensuring the compliance of their local school districts. Id. §§ 1232c, § 7844(a).
B. Teacher Qualifications 1. Empirical research linking teacher qualifications to student achievement
Congress understood that teachers play a key role in role in enabling school districts and schools to meet the benchmarks set by their states. Although research available to Congress confirmed that good teachers are an important factor in improving student achievement, see, e.g., SER81-88 (AR565-572) (Kati Haycock, Good Teaching Matters: How Well-Qualified Teachers Can Close The Gap (1998)), distinctions were drawn in the types of qualifications that make a teacher effective. Studies showed that a teacher’s subject matter knowledge and verbal ability were the two most important factors in raising student achievement. See, e.g., SER89-91 (AR573-575) (Haycock); SER134-135 (AR10171018) (Kate Walsh, Teacher Certification Reconsidered: Stumbling For Quality (2001)).1
1 The data on subject matter knowledge were especially clear in the areas of mathematics and science, where teachers with majors in the fields they taught routinely obtained higher student performance than teachers without such majors. SER90 (AR574) (Haycock). Verbal ability, which is usually measured by short vocabulary tests and is understood as a measure of a teacher’s general cognitive ability (intelligence), was the attribute with the strongest positive link to student achievement. SER144, 146
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By contrast, there was little rigorous evidence that teacher certification (also known as licensing) systematically related to student achievement. (SER111, 123) (AR595, 607) (Goldhaber & Brewer, Teacher Licensing and Student Achievement (1999)); SER133 (AR1016) (Walsh). Although state requirements vary, under the conventional certification model aspiring teachers generally must complete an accredited teacher education program that includes course work in pedagogical theory and practice teaching. SER218 (AR1766) (Frederick Hess, Tear Down This Wall: The Case For A Radical Overhall Of Teacher Certification (2001)). Yet according to empirical evidence available to Congress, “[e]ducation courses completed, advanced education degrees, scores on professional knowledge sections of licensing exams, even, interestingly, years of experience – none seem to have a clear relationship to student achievement.” SER91 (AR575) (Haycock); see also SER220-225 (AR1768-1773) (Hess).
Research raised concerns that certification requirements could be counterproductive, by deterring individuals with the attributes most closely linked to student achievement (strong verbal ability and subject matter knowledge) from entering the teaching profession. See, e.g., SER226-227 (AR1774-1775) (Hess); SER146 (AR1029) (Walsh). Historically, students enrolled in schools of education generally have not been as academically
(AR1027, 1029) (Walsh). -7-

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accomplished as other university students. SER22 (AR401) (Meeting the Highly Qualified Teachers Challenge: The Secretary’s Annual Report on Teacher Quality (2002) (citing data). Moreover, under conventional certification requirements, undergraduates either must decide early in their programs to pursue an education degree or else face the time and expense of a post-graduate education program. SER22-24 (AR401-403) (citing Hess).
“Alternative route to certification” programs seek to reduce these barriers to entry into the teaching profession. Although programs vary, in general they allow individuals who wish to teach, such as liberal arts college graduates or military retirees, to begin in the classroom without having first completed a formal teacher education program. SER113 (AR597) (Goldhaber & Brewer); see also Pl. Br. 2. For example, Teach For America (TFA), a nonprofit organization, recruits high-achieving seniors from the nation’s top colleges to serve as teachers in inner-city or rural schools while enrolled in alternative route to certification programs. SER246 (AR2278) (Raymond & Fletcher, The Teach For America Evaluation (2001)). Most Teach For America recruits serve in schools that qualify for funding under Title I of the ESEA due to their high concentrations of students living in poverty. Ibid.
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2. NCLB teacher qualification provisions Against this background, Congress enacted NCLB provisions that set standards for teacher qualifications and authorized grants to assist the states in meeting those standards. Congress provided that, beginning with the first day of the 2002-2003 school year, school districts were required to ensure that all teachers hired to teach in programs supported by Title I funds were “highly qualified” to teach. 20 U.S.C. § 6319(a)(1). The school districts affected by this provision are located in low-income areas because Title I allocations are principally based on population income. Id. § 6333. Congress also required states and school districts receiving Title I funds to develop plans to ensure that all teachers of core academic subjects were highly qualified by the end of the 2005-2006 school year, regardless of whether they were newly hired and regardless of whether they taught in Title I programs. Id. § 6319(a)(2) & (3).2 States also were required to identify in their plans the steps that they would take to ensure that poor and minority students were not taught at higher rates than other children by inexperienced, unqualified, or out-of-field teachers. Id. § 6311(b)(8)(C).
2 The Act defines “core academic subjects” to mean English, reading or language arts, mathematics, science, foreign languages, civics and government, economics, arts, history, and geography. 20 U.S.C. § 7801(1).
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Congress defined the term “highly qualified” to require that a teacher (1) hold at least a bachelor’s degree; and (2) have demonstrated, in specified manner, subject-matter competence in each subject the teacher would teach. 20 U.S.C. § 7801(23)(B) & (C). New middle or secondary school teachers, for example, needed to have an academic major in the field taught, equivalent course work, or advanced credentialing, or to have passed a rigorous state test. Id. § 7801(23)(B)(ii).
In addition, and as particularly relevant here, Congress provided that a “highly qualified” teacher needed to have “obtained full State certification as a teacher (including certification obtained through alternative routes to certification),” and not have had “certification or licensure requirements waived on an emergency, temporary or provisional basis.” Id. § 7801(23)(A)(i) & (ii). Congress did not define these phrases and, as plaintiffs acknowledge, their definition is left to the discretion of the states because certification is a matter of state law and policy. Pl. Br. 38. Congress did, however, specify that “full States certification” includes “certification obtained through alternative routes to certification.” 20 U.S.C. § 7801(23)(A)(i). And, in Title II of the Act, which authorized various grant programs to increase “the number of highly qualified teachers in the classroom,” id.
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§ 6601, Congress expressly encouraged states and school districts to recruit teachers participating in alternative route programs.
For example, Congress authorized the “Transition to Teaching Program,” which “encourage[d] the development and expansion of alternative routes to certification under State-approved programs that enable individuals to be eligible for teacher certification within a reduced period of time, relying on the experience, expertise, and academic qualifications of an individual, or other factors in lieu of traditional course work in the field of education.” Id. § 6681(2). It provided funds to “recruit and retain highly qualified mid-career professionals” and “recent [college] graduates” to serve “as teachers in high-need schools, including recruiting teachers through alternative routes to certification.” Id. § 6681(1). Similarly, the “Improving Teacher Quality State Grants Program,” id. §§ 6601 et seq., authorizes states to use funds to “establish, expand, or improve alternative routes for State certification of teachers” by targeting individuals “with a baccalaureate or master’s degree, including mid-career professionals from other occupations, paraprofessionals, former military personnel, and recent college or university graduates with records of academic distinction who demonstrate the potential to become highly effective teachers.”
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Id. § 6613(c)(3).3 And the “Troops To Teachers Program” facilitates the employment of eligible former members of the Armed Services to serve as teachers in schools in high-need school districts experiencing a shortage of highly qualified teachers. Id. §§ 6672 & 6674(a)(1)(B).
C. The 2002 Department Of Education Regulations In 2002, after notice and comment, the Department of Education issued a set of regulations implementing Title I of the ESEA, as amended by the No Child Left Behind Act. See 67 Fed. Reg. 71710 (December 2, 2002). As relevant here, the regulations established minimum standards that must be met for a teacher participating in an alternative route program to be “fully certified” for purposes of being considered “highly qualified” within the meaning of NCLB. Like other teachers, alternative route participants must have at least a bachelor’s degree, as well as demonstrated subject-matter competence in each subject the teacher would teach. 34 C.F.R. § 200.56(b) & (c). In addition, the regulations require that to be considered fully certified for
3 The “Improving Teacher Quality State Grants Program” likewise authorizes school districts to use funds to “recruit qualified professionals from other fields,” to “provide such professionals with alternative routes to teacher certification,” and to “hir[e] highly qualified teachers, including teachers who become highly qualified through State and local alternative routes to certification,... in order to reduce class size, particularly in the early grades.” Id. § 6623(a)(2)(C)(iii) & (a)(7).
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purposes of the NCLB definition of “highly qualified,” a state must ensure through its certification and licensing process that the teacher receives high-quality professional development that is sustained, intensive, and classroom-focused before and while teaching, as well as and intensive supervision; assumes the functions of a teacher for no more than three years; and demonstrates satisfactory progress toward full certification as prescribed by the state. Id. § 200.56(a)(2)(ii)(A) & (B).
In issuing this regulation, the Department of Education rejected the suggestion that, in enacting 20 U.S.C. § 7801(23)(A)(i), Congress intended that school districts implementing their Title I programs be denied the flexibility to hire teachers participating in alternative route programs. 67 Fed Reg. at 71764. The Department explained that “Congress has chosen both to authorize and fund two alternative route programs, Troops-to-Teachers and Transition to Teaching, in Title II, part C of the ESEA, and has permitted States and [school districts] to use Title II, part A formula grant funds to hire teachers in alternative route programs.” Ibid. “Hence,” the Department did “not believe that Congress intended that teachers in alternative route programs would be unable to teach until they had obtained full State certification.” Ibid.
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D. Subsequent appropriations and legislation. In the years since the 2002 regulation was issued, Congress has repeatedly appropriated funds to support alternative route programs, both for the ESEA Title II Transition to Teaching, Troops to Teachers, and the Improving teacher quality State Grants Programs, and also specifically for Teach for America.4 In August 2008, as part of the Higher Education Opportunity Act, Congress enacted provisions that authorized a five-year grant to Teach for America, “the national teacher corps of outstanding recent college graduates who commit to teach for two years in underserved communities.” Pub. L. No. 110-315, § 806, 122 Stat. 3390, 20 U.S.C.A. § 1161f. Congress specified that grant funds should be used to “provide highly qualified teachers to high-need local educational agencies in urban and rural communities,” 20 U.S.C.A. § 1161f(c), and defined the term “highly qualified” to have the same meaning given in the No Child Left Behind Act. Id. § 1161f(a). II. District Court Proceedings. Plaintiffs are several California public school students and their parents, joined by two organizations, California Association of Community Organizations for Reform Now (“ACORN”)
4 See, e.g., H.R. Conf. Rep. No. 108-10 (2003), 2003 U.S.C.C.A.N. 10, 200, 321; H.R. Conf. Rep. No. 108-401 (2003), 2003 U.S.C.C.A.N. 3, 248; H.R. Conf. Rep. 108-792 at 1233 (2004); H.R. Conf. Rep. No. 109-337, at 114 (2005), 2006 U.S.C.C.A.N. 1531.
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and Californians for Justice Education Fund. They filed this lawsuit in 2007 – five years after the alternative route regulation was issued – alleging that the regulation is inconsistent with the statute. Plaintiffs allege that they have been harmed by the regulation because, in the years since the regulation was issued, California and its school districts have hired thousands of alternative route participants, Amended Complaint ¶63 (ER756), allowed these teachers to be concentrated in low-income and minority areas, id. ¶64 (ER757), and treated the teachers as highly qualified for reporting and parental notification purposes, id. ¶¶17-40, 66-74 (ER734-745, 757-761). Specifically, plaintiffs contend that alternative route participants who hold teaching credentials under California’s district intern and university intern programs do not have “full State certification” under California law. Amended Complaint ¶8 (ER731); see also Cal. Educ. Code §§ 44325 et seq. (district intern program); id. §§ 44450 et seq. (university intern program).
Plaintiffs did not name the State of California or its school districts as defendants, implicitly recognizing that the No Child Left Behind Act does not confer individual rights enforceable against a state or local government. ACORN v. New York City Department of Education, 269 F. Supp. 2d 338 (S.D.N.Y. 2003). Instead, plaintiffs sued the Secretary of Education,
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seeking to invalidate the alternative route regulation. ER763. Plaintiffs also sought to compel the Secretary both to correct allegedly inaccurate reports to Congress, ER764, and to notify states and school districts of the regulation’s alleged invalidity, ER764-765.
The district court entered summary judgment for the government, holding that the regulation was a reasonable interpretation of NCLB. The court explained that Congress did not define the phrase “full State certification as a teacher (including certification obtained through alternative routes to certification).” ER9. “Nor did Congress establish standards for determining which teachers will be considered to have ‘full State certification,’ or unambiguously state that a teacher who is participating in an ‘alternative route’ program cannot be highly qualified because he/she has not yet completed that program.” Ibid. Accordingly, the court held that the statutory definition was, at best, ambiguous. Ibid. The court held that the agency’s interpretation was reasonable, explaining that it was consistent with the NCLB provisions that encouraged states and school districts to recruit teachers through alternative route programs. ER11-13. And the court explained that Congress’s failure to reverse the Secretary’s regulation after more than five years suggests that Congress does not believe the regulation exceeds the scope of the Act. ER13.
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SUMMARY OF ARGUMENT Under the Elementary and Secondary Education Act of 1965, as amended by the No Child Left Behind Act of 2001, Congress provides funds to assist the states and localities in improving the academic achievement of their students. To that end, Congress required that as of the start of the 2002-2003 school year all teachers hired to teach in programs funded under Title I be “highly qualified.” As of the end of the 2005-2006 school year, all school district teachers of core academic subjects (whether or not working in a Title I program and whether or not a new hire) were to be highly qualified. Congress defined “highly qualified” teachers to be those who have a bachelor’s degree, demonstrated subject matter competence, and “full State certification.” Congress did not define “full state certification,” but specifically included “certification obtained through alternative routes to certification.” The Department of Education, in formal rulemaking proceedings, reasonably concluded that “highly qualified” teachers under Title I of the Act include participants in “alternative route” programs funded under Title II of the Act, such as teachers funded under the Transition to Teaching and Troops-to-Teachers programs. Indeed, the express purpose of these Title II grant programs was to increase “the number of highly qualified teachers in the classroom.” 20 U.S.C. § 6601
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(emphasis added). The agency properly declined to adopt an understanding of Title I that would impede that goal.
The reasonableness of the agency’s regulations is underscored by the enactment of the Higher Education Opportunity Act, which was signed into law in August 2008. That statute authorized a five-year grant to Teach for America, which Congress described as “the national teacher corps of outstanding recent college graduates who commit to teach for two years in underserved communities.” 20 U.S.C.A. § 1161f. Congress specified that these grant funds should be used to “provide highly qualified teachers to high-need local educational agencies in urban and rural communities,” id. § 1161f(c), and defined “highly qualified” to have the same meaning that the term is given in NCLB, id. § 1161f(a). Plaintiffs cannot plausibly contend that these alternative route teachers are not highly qualified within the meaning of NCLB.
The district court was thus correct to reject plaintiffs’ challenge to the alternative route regulation. Moreover, as a threshold matter, plaintiffs cannot demonstrate standing to sue. They assume that a decision to “void” the regulation would cause California to alter its treatment of alternative route participants. But as they recognize, the question whether a teacher holds “full State certification” is a matter of state law, determined by reference to the laws of the fifty states.
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Congress did not authorize the federal courts to offer opinions on state credentialing laws, much less to do so in the absence of a state defendant. The only concrete result of a decision to invalidate the alternative route regulation would be to void the minimum standards to which states now must adhere if their alternative route participants are to be highly qualified under NCLB. That result would impede, rather than advance, plaintiffs’ stated interests.
STANDARD OF REVIEW The entry of summary judgment is subject to de novo review in this Court. Center for Biological Diversity v. U.S. Fish & Wildlife Service, 450 F.3d 930, 941 n.17 (9th Cir. 2006).
ARGUMENT I. Plaintiffs Lack Standing Because The Relief They
Seek Would Not Redress Their Alleged Injuries. As we explain below in Part II, the alternative route regulation was a reasonable interpretation of ambiguous statutory language and thus should be sustained. As a threshold matter, plaintiffs lack standing because the relief they seek would not redress their alleged injuries and, instead, would undermine their stated concerns. Plaintiffs allege that they have been harmed by the alternative route regulation because California and its school districts have thereby hired alternative route participants as highly qualified classroom teachers, allowed these teachers to be
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concentrated in low-income and minority areas, and treated these teachers as highly qualified for purposes of various state and local plans, reports, and parental notification requirements.
Plaintiffs have not named California or its school districts as defendants. The reason for that decision is evident: every court to address the issue has held that NCLB does not create individual rights enforceable against a state or local government. See Alliance for Children, Inc. v. City of Detroit Public Schools, 475 F. Supp. 2d 655 (E.D. Mich. 2007) (collecting cases) (cited in Flores v. Arizona, 516 F.3d 1140, 1176 n.47 (9th Cir. 2008)). Indeed, ACORN itself (the national organization of plaintiff California ACORN) tried, unsuccessfully, to sue the New York City Department of Education to enforce NCLB, and did not appeal the adverse determination that NCLB cannot be enforced under § 1983. ACORN v. New York City Department of Education, 269 F. Supp. 2d 338 (S.D.N.Y. 2003).
As the Supreme Court explained, where statutory provisions “have an ‘aggregate’ focus, they are not concerned with ‘whether the needs of any particular person have been satisfied,’ and they cannot ‘give rise to individual rights.’” Gonzaga University v. Doe, 536 U.S. 273, 288 (2002) (quoting Blessing v. Freestone, 520 U.S. 329, 343, 344 (1997)) (citations omitted). That principle would doom any private attempt to enforce NCLB against a state, because NCLB aims to raise student achievement at an “aggregate,”
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rather than individual, level. ACORN, 269 F. Supp. 2d at 345 (quoting Gonzaga, 536 U.S. at 290). Although, in Flores, this Court did not decide the § 1983 issue, which was not directly presented, this Court pointedly contrasted the structure of NCLB with the structure of a rights-conferring statute. Flores, 516 F.3d at 1172-1176. This Court explained that NCLB “packages federal grants with discrete, incremental achievement standards as part of a general plan gradually to improve overall performance. It does not deal in the immediate, rights-based framework inherent in civil rights law, although it is intended to ameliorate over the longer haul the conditions that lead to civil rights violations.” Id. at 1173.
Plaintiffs cannot circumvent these principles by declining to name the State as defendant. Nor would the relief that plaintiffs seek redress their alleged injuries. Plaintiffs seek a declaration that the alternative route regulation is “unlawful and void.” Prayer For Relief ¶1 (ER763). The implicit assumption is that such a declaration would likely cause California to cease treating alternative route participants as highly qualified. But as plaintiffs recognize, the question whether alternative route participants hold “full State certification as a teacher (including certification obtained through alternative routes to certification)” is a matter of state law. Pl. Br. 36-39. The meaning of these terms “is
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determined by the laws of each of the fifty states as to how a teacher may be considered fully-certified by that state.” Pl. Br. 38. This would be true whether or not the Secretary had issued the challenged regulation.
Plaintiffs thus invite the Court to examine the nuts and bolts of California education law, urging that the teaching credentials issued under California’s “district internship” and “university internship” programs do not amount to full certification under California law and that only “preliminary” and “professional clear” credentials suffice. Pl. Br. 14-19, 3839. As we explain in Part II, Congress did not expect the federal courts to offer opinions about what state law means by certification or full certification. As a threshold matter, a court cannot properly issue judgments on such matters in the absence of a state defendant.5
Invalidation of the alternative route regulation would have one concrete result, but it is far from the result that plaintiffs intend. If the regulation were declared “void” (ER763), states no longer would have to adhere to the minimum standards set out in the regulation, such as the requirement that alternative route participants receive intensive professional
5 In district court, we explained our belief that alternative route participants do, in fact, have “full State certification” under California law. The district court did not decide this state law issue, and, as just explained, this Court also should not decide it.
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development before beginning to teach as well as intensive supervision afterwards. 34 C.F.R. § 200.56(a)(2)(ii)(A) & (B).6 Invalidation of the regulation thus would undermine, rather than advance, plaintiffs’ stated interests.
Plaintiffs’ other requests for relief are similarly unavailing. They seek an order requiring the Secretary to “notify” states that the alternative route regulation is “unlawful and void.” ER764. Even assuming that the Secretary could be compelled to take such action, it would not redress any of plaintiffs’ asserted injuries because, as just explained, certification is a matter of state law. Plaintiffs’ attempt to compel the Secretary to correct reports to Congress (ER764) fails for the same reason and also for a more general reason: private parties lack standing to challenge the accuracy of an agency’s reports to Congress. Guerrero v. Clinton, 157 F.3d 1190, 1191 (9th Cir. 1998).
6 These requirements were designed to ensure that alternative routes to certification do not become vehicles for granting long-term waivers of certification requirements, and also with the understanding that for these teachers to be effective, those in alternative route programs need to be prepared to teach their students from the moment they step into their classrooms, and receive the follow-up support they need as beginning teachers. See 67 Fed. Reg. at 71764.
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II. The Alternative Route Regulation Is A Reasonable Interpretation Of The Statutory Requirements. A. Under Chevron and Pennhurst, The Regulation Must Be Sustained Unless It Is Directly Foreclosed By The Statutory Text. For the reasons just discussed, the complaint should be
dismissed for lack of standing. If the Court reaches the merits, it should affirm the judgment of the district court. As the district court explained, the alternative route regulation was a reasonable interpretation of the statutory requirements.
Under settled administrative law principles, a federal agency’s interpretation of the statute it is charged with administering is entitled to deference. Center for Biological Diversity v. National Highway Traffic Safety Administration, 538 F.3d 1172, 1194 (9th Cir. 2008) (citing Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)). Unless Congress has directly spoken to the precise issue, the agency’s reasonable interpretation must be sustained. Ibid.
Moreover, under spending clause principles, a state must have “clear notice” of the obligations that flow from receipt of federal funds. Arlington Central School District Board of Education v. Murphy, 548 U.S. 291, 296 (2006) (citing Pennhurst State School & Hospital v. Halderman, 451 U.S. 1 (1981)). This “clear notice” requirement does not mean that Congress must “prospectively resolve every possible ambiguity” that could arise under a spending program, Bennett v. Kentucky Department of
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Education, 470 U.S. 656, 669 (1985); see also Mayweathers v. Newland, 314 F.3d 1062, 1067 (9th Cir. 2002). And the requisite clarity may be supplied by the federal agency charged with implementing the spending program. Bennett, 470 U.S. at 669, 672. Here, however, the Department of Education rejected the contention that, in enacting 20 U.S.C. § 7801(23)(A)(i), Congress intended to deny school districts implementing their Title I programs the flexibility to hire teachers participating in alternative route programs. 67 Fed Reg. at 71764. “It would take an extraordinary view of Pennhurst and Chevron” to “fasten large ... obligations on the states in violation of the statutory interpretation of the federal implementing agency.” Maryland Psychiatric Society v. Wasserman, 102 F.3d 717, 721 (4th Cir. 1996).
B. The Regulation Is Fully Consistent With The Statutory Definition Of “Highly Qualified” Teacher And With Other Relevant Provisions.
1. As the district court explained, NCLB does not define what it means to have “full State certification as a teacher (including certification obtained through alternative routes to certification).” ER9. “Nor did Congress establish standards for determining which teachers will be considered to have ‘full State certification,’ or unambiguously state that a teacher who is participating in an ‘alternative route’ program cannot be highly qualified because he/she has not yet completed the program.”
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Ibid. “Thus, Congress has not ‘directly spoken to the precise question at issue.’” Ibid. (quoting Chevron, 467 U.S. at 842).
Instead, as plaintiffs recognize, Congress left matters of certification to the states, which are “‘free to redefine, in accordance with State law, their certification requirements ... or create non-traditional approaches to certification.’” Pl. Br. 38 (quoting Department of Education’s 2003 guidance (ER278 at C-6)). Indeed, Congress barred the Department of Education from requiring any particular method of teacher certification. 20 U.S.C. § 7910(a) & (b).
In implementing the statute, DOE reasonably concluded that Title I does not preclude states like California from choosing to allow their school districts to employ teachers with certification obtained “through alternative routes.” Under California law, alternative route participants receive teaching credentials issued under the State’s “district internship” or “university internship” programs. See Cal. Educ. Code § 44325 et seq. (district intern credentials); id. § 44450 et seq. (university intern credentials). To be eligible for such teaching credentials, applicants must (1) pass the California Basic Education Skills Test (“CBEST”); (2) hold at least a bachelor’s degree; and (3) demonstrate subject matter competence. See Cal. Educ. Code §§ 44325(c)(1)-(3), 44453; see also ER123124, ER220 (chart). These requirements are more stringent than
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the requirements for entry into a traditional teacher preparation program, precisely because the internship credentials allow their holders to serve as full classroom teachers. ER108.
Alternative route participants in California thus satisfy the plain terms of the statutory parenthetical: they have “certification obtained through alternative routes to certification.” Nor have these teachers had certification requirements “waived on an emergency, temporary, or provisional basis,” 20 U.S.C. § 7801(23)(A)(ii). What California regards as “emergency permits” are governed by different provisions of California law that do not apply to intern credentials. See Cal. Educ. Code §§ 44300 & 44301 (emergency teaching permits).
The California legislature expressly directed the state Commission on Teacher Credentialing to “ensure that each district internship program in California provides program elements to its interns as required by the federal No Child Left Behind Act of 2001 (20 U.S.C. Sec. 6301 et seq.) and its implementing regulations.” Cal. Educ. Code § 44325(f); see also id. § 44453(b) (university internship program). Accordingly, the State’s alternative route participants are fully certified (and thus highly qualified) for purposes of NCLB.
2. Plaintiffs nevertheless urge that the statutory reference to “full” certification cannot encompass alternative route teachers, relying on the following “dictionary” definition:
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“‘(1) completely filled; containing all that can be held; filled to the utmost capacity...(2) complete; entire; maximum....’” Pl. Br. 30 (quoting Dictionary.com Unabridged (v. 1.1), Random House, Inc.).
As plaintiffs’ argument makes plain, however, recourse to the dictionary cannot, by itself, resolve the proper implementation of the statute. Plaintiffs offer no sound basis for their contention that all children must “receive instruction from teachers who (in addition to a B.A. and subject matter competence) have obtained the full, maximum, most complete level of certification granted by the state in which the children attend school.” Pl. Br. 31. To the contrary, as plaintiffs themselves recognize, Congress did not require that teachers have obtained “the full, maximum, most complete level of certification granted by the state.” In California, veteran teachers receive “professional clear” credentials, which are valid for “the life of the holder.” Cal. Educ. Code § 44251(b)(3). In contrast, beginning teachers who have completed traditional education programs receive only “preliminary” credentials, which are valid for five years. Id. § 44251(b)(2). Beginning teachers thus have not obtained the “full, maximum, most complete level of certification granted by the state in which the children attend school.” Pl. Br. 31. Plaintiffs acknowledge that these teachers “obviously” have “full State certification” as that term was used
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by Congress, Pl. Br. 43 n.14, and they are doubtless correct. It is equally clear, therefore, that Congress did not adopt their “dictionary” definition, and that their “plain language” argument is without merit.
Plaintiffs likewise err in asserting that teachers credentialed under an alternative route program are only highly qualified after they have completed the program. As the district court explained, Congress defined “highly qualified” to include teachers who have obtained certification “through” alternative route programs, not “after” those programs were “complete.” ER12.
Plaintiffs are on no firmer ground in noting that California imposes restrictions on the teaching credentials issued under the district and university internship programs. As plaintiffs observe, the credentials are valid for only two years and are subject to geographic restrictions. Pl. Br. 16-17. But, as noted above, the “preliminary” credentials issued to beginning teachers in California are only valid for a term (5 years). Cal. Educ. Code § 44251(b)(2). And “single subject instruction” credentials only allow the holder to teach specified subject matter courses. Id. § 44256(a). Plaintiffs do not suggest that these restrictions render the teacher not highly qualified for purposes of NCLB. The Department of Education was not obliged by
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federal law to distinguish among these gradations in the conditions imposed on teaching credentials.
3. The Department of Education properly implemented the requirement that states employ “highly qualified” teachers in a manner that did not undermine the operation of related statutory provisions. As discussed above, several provisions of the NCLB expressly encourage the states and school districts to recruit teachers through alternative route programs. The “Transition to Teaching Program” encourages “the development and expansion of alternative routes to certification under State-approved programs that enable individuals to be eligible for teacher certification within a reduced period of time, relying on the experience, expertise, and academic qualifications of an individual, or other factors in lieu of traditional course work in the field of education.” Id. § 6681(2). That program provides funds to “recruit and retain highly qualified mid-career professionals” and “recent [college] graduates” to serve “as teachers in highneed schools, including recruiting teachers through alternative routes to certification.” Id. § 6681(1).
Similarly, the “Improving Teacher Quality State Grants Program,” id. §§ 6601 et seq., authorizes states to use funds to “establish, expand, or improve alternative routes for State certification of teachers” by targeting individuals “with a baccalaureate or master’s degree, including mid-career
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professionals from other occupations, paraprofessionals, former military personnel, and recent college or university graduates with records of academic distinction who demonstrate the potential to become highly effective teachers.” Id. § 6613(c)(3).7 And the “Troops To Teachers Program” facilitates the employment of eligible former members of the Armed Services to serve as teachers in schools experiencing a shortage of highly qualified teachers. Id. § 6672.
In plaintiffs’ view, Congress intended to preclude the states and school districts from treating participants in these programs as “highly qualified.” They declare that the programs are merely a “pipeline” for future teachers. Pl. Br. 27. And, in response to the evident tension that these assertions create, they insist that their position does not, “on its face,” create a conflict with NCLB’s alternative route programs because programs such as “Transition to Teaching” and “Troops to Teachers” are “entirely permissive.” Pl. Br. 59 (plaintiffs’ emphasis). They stress that “NCLB does not require any state or district to use these voluntary programs.” Pl. Br. 59 (plaintiffs’ emphasis).
7 The “Improving Teacher Quality State Grants Program” likewise authorizes school districts to use funds to “recruit qualified professionals from other fields,” to “provide such professionals with alternative routes to teacher certification” and to “hir[e] highly qualified teachers, including teachers who become highly qualified through State and local alternative routes to certification,... in order to reduce class size, particularly in the early grades.” 20 U.S.C. § 6623(a)(2)(C)(iii) & (a)(7).
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Plaintiffs do not and cannot explain why Congress would require states and school districts to choose between complying with the “highly qualified” teacher requirements set out in Title I, and implementing the alternative route programs that Congress authorized in Title II of the same legislation. The express purpose of the Title II grant programs was to increase “the number of highly qualified teachers in the classroom.” 20 U.S.C. § 6601 (emphasis added). Congress surely believed that the “highly qualified” teachers funded under Title II would also be regarded as “highly qualified” in determining a state or school district’s compliance with its obligations under Title I.
Indeed, under plaintiffs’ view, the Title I requirements would significantly frustrate the operation of the programs that Congress funds under Title II. As plaintiffs recognize, “alternative route participants are hired by a school district to teach full-time as the sole teacher in a classroom while completing teacher preparation coursework from a local university or the district at night and on weekends.” Pl. Br. 2 (some emphasis added); see also, e.g., SER113 (AR597) (Goldhaber & Brewer). Under Teach For America, for instance, high-achieving college seniors are recruited from the nation’s top colleges to serve as teachers in inner-city or rural schools. SER246 (AR2278) (Raymond & Fletcher). The hallmark of an alternative route program is that its participants serve as full classroom
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teachers. The programs thus reduce barriers to entry into teaching for recent college graduates, mid-career professionals, and others with relevant skills, knowledge and motivation, while at the same time relieving teacher shortages. Congress plainly did not intend to diminish state and local incentives to hire alternative route participants as full time teachers, and thus undermine the vitality of these programs.8
The question is not, as plaintiffs suggest (Pl. Br. 61-62), whether states and school districts would be sanctioned by the Secretary of Education for hiring or retaining alternative route participants. The imposition of sanctions is, of course, discretionary. Port of Seattle, Washington v. FERC, 499 F.3d 1016, 1026-1027 (9th Cir. 2007) (citing Heckler v. Chaney, 470 U.S. 821, 831 (1985)). And the discretionary nature of NCLB enforcement confirms that plaintiffs cannot obtain relief for their asserted injuries. The discretionary nature of sanctions does not, however, make plaintiffs’ statutory position any more
8 Indeed, Congress favored the Troops to Teachers program precisely because it successfully promoted the recruitment and quick placement of former military personnel with subject-matter knowledge as teachers in high-need school districts. See, e.g., 147 Cong. Rec. S4145, at S4147 (daily ed. May 2, 2001) (Sen. Hutchinson) (noting the need to get military personnel into classroom in their areas of expertise “although they don’t have educational certificates or educational degrees”); id. at S13340 (daily ed. Dec. 17, 2001) (Sen. DeWine) (noting the need to involve members of the military and individuals from other fields “with real world jobs” and to “make it easy for them to enter the classroom”).
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plausible: Congress did not expose the states and their school districts to the possibility of sanctions for hiring Teach For America recruits or other alternative route participants.9
If there were any doubt on this point, it was removed on August 14, 2008, when the Higher Education Opportunity Act was signed into law. In that statute, Congress authorized a fiveyear grant to Teach for America, which Congress described as “the national teacher corps of outstanding recent college graduates who commit to teach for two years in underserved communities.” Pub. L. No. 110-315, § 801, 122 Stat. 3390, 20 U.S.C.A. § 1161f. Congress specified that these grant funds should be used to “provide highly qualified teachers to high-need local educational agencies in urban and rural communities.” 20 U.S.C.A. § 1161f(c) (emphasis added). And Congress defined “highly qualified” to have the same meaning that the term is given in NCLB. Id. § 1161f(a).
9 Plaintiffs assert states and school districts do not, in fact, face the possibility of sanctions, noting that the Secretary has provided additional time beyond the end of the 2005-2006 school year to reach the goal of having 100% highly qualified teachers. However, as noted above, Congress provided that since the beginning of the 2002-2003 school year, all newly hired teachers in Title I programs were to be highly qualified. 20 U.S.C. § 6319(a)(1). And as explained, the Transition to Teaching and Troops to Teachers Programs place new alternative route teachers in high-need schools and school districts, so these placements often will be in Title I programs. Whatever means the Secretary may be using to achieve full compliance with the 100% requirement does not alter the requirements of Title I.
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Plaintiffs make no attempt to reconcile their position with these provisions, which their brief does not discuss. In plaintiffs’ view, TFA recruits are not “highly qualified” and cannot be hired without bringing states and school districts out of compliance with NCLB. Congress, however, just confirmed that TFA recruits are “highly qualified” within the meaning of NCLB, even though they serve as full classroom teachers before their alternative route programs are complete. Thus, even assuming for the sake of argument that plaintiffs’ position was once plausible, it is not plausible today.
C. Plaintiffs’ Reliance On California Law Is Misplaced. Plaintiffs invite the Court to examine California’s credentialing system, urging that the teaching credentials held by alternative route participants fall into the same “substandard” category as “provisional intern permits,” “short term staff permits,” and “substitute permits.” Pl. Br. 16. Their reliance on state law is misplaced. Even a cursory review of California law shows that plaintiffs misunderstand the provisions that they invoke. For instance, the chart they cite places intern credentials in a different category from provisional intern permits, short term staff permits, and substitute permits. ER220. More fundamentally, Congress did not expect the federal courts to review the education codes of the fifty states to
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ascertain whether teachers hold the requisite credentials. As of 2002, most states offered more than 50 different types of teaching credentials. SER32 (AR411). Alaska led the way with 229. Ibid. Under ordinary principles of federalism, the task of ensuring state compliance with state law is reserved to a state’s own institutions, not assigned to the federal courts. Indeed, the Supreme Court has stressed that “it is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law.” Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 106 (1984).
As plaintiffs acknowledge, NCLB respects historic prerogatives of the states in the area of education, and many of the Act’s provisions incorporate state law. Pl. Br. 36-37. Congress did not thereby authorize the federal courts to police a state’s compliance with state law.
Congress did not define what it means to have “full State certification ... (including certification obtained through alternative routes to certification),” or what it means to have certification requirements “waived on an emergency, temporary, or provisional basis.” Instead, Congress left matters of certification to the discretion of the states, and prohibited the Secretary of Education from withholding funds on the basis of a failure to adopt a particular method of teacher certification,
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20 U.S.C. § 7910(b). As plaintiffs recognize, the phrase “full State certification” thus reflects a delegation of authority to the states. “‘Full State certification is defined by State policy.’” Pl. Br. 38 (quoting Department of Education’s 2003 guidance (ER278 at C-6)) (emphasis omitted). Accordingly, “‘States are free to redefine, in accordance with State law, their certification requirements ... or create non-traditional approaches to certification.’” Ibid.10
Inexplicably, plaintiffs contend that the alternative route regulation “overrides” this delegation to the states. Pl. Br. 38. But as plaintiffs acknowledge, no state is compelled to hire alternative route participants. Pl. Br. 59. The regulation established minimum standards that must be met for an alternative route participant to be highly qualified for purposes of NCLB. If a state wishes for its alternative route participants be highly qualified for purposes of NCLB, the state must ensure “through its certification and licensing process” that these minimum standards are met. 34 C.F.R. § 200.56(a)(2)(ii)(B).
10 Although plaintiffs invoke DOE’s own 2003 guidance, they claim that DOE’s position on alternative route participants has changed over time. Pl. Br. 40. It has not. The draft 2002 guidance that plaintiffs cite (Pl. Br. 40) specifically stated that teachers in alternative route programs could be considered highly qualified (ER709).
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The California legislature has done exactly that, by

directing the state Commission On Teacher Credentialing to

“ensure that each district internship program in California

provides program elements to its interns as required by the

federal No Child Left Behind Act of 2001 (20 U.S.C. Sec. 6301 et

seq.) and its implementing regulations.” Cal. Educ. Code

§ 44325(f); see also id. § 44453(b) (university internship

program). The requirements of federal law have thus been met.

CONCLUSION

For the foregoing reasons, the complaint should be dismissed

for lack of standing. In the alternative, the judgment on the

merits should be affirmed.

Respectfully submitted,

Of counsel:
KENT D. TALBERT General Counsel Department of Education Washington, D.C. 20202

GREGORY G. KATSAS Assistant Attorney General
SCOTT N. SCHOOLS United States Attorney
MARK B. STERN (202) 514-5089
ALISA B. KLEIN /s/ (202) 514-1597 Attorneys, Appellate Staff Civil Division, Room 7235 Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C. 20530-0001

NOVEMBER 2008

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CERTIFICATE OF COMPLIANCE WITH RULE 32(a)(7)(C) OF THE FEDERAL RULES OF APPELLATE PROCEDURE
I hereby certify pursuant to Fed. R. App. P. 32(a)(7)(C) that the foregoing brief is monospaced, has 10.5 or fewer characters per inch and contains 8,010 words, according to the count of Corel WordPerfect 12.
_______/s/___________ Alisa B. Klein

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STATEMENT OF RELATED CASES We are not aware of any pending related cases.

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CERTIFICATE OF SERVICE
I hereby certify that on this 12th day of November, 2008, I caused copies of the foregoing brief to be sent to the following counsel by federal express, overnight mail and by email, and caused the accompanying supplemental record excerpts to be sent to the following counsel by federal express, overnight mail:
John T. Affeldt Managing Attorney Public Advocates, Inc. 131 Steuart Street, Suite 300 San Francisco, CA 94105 jaffeldt@publicadvocates.org Charles T.C. Compton Wilson Sonsini Goodrich & Rosati, P.C. 650 Page Mill Road Palo Alto, CA 94304 tel: 650-493-9300 ccompton@wsgr.com
_____/s/___________ Alisa B. Klein
Attorney

 
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No. 08-16661
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
SONYA RENEE ET AL., Plaintiffs - Appellants,
v. ARNE DUNCAN, in his official capacity; UNITED STATES DEPARTMENT OF EDUCATION,
Defendants - Appellees
On Appeal from the United States District Court for the Northern District of California Case No. 07-CV-04299-PJH
BRIEF OF AMICI CURIAE IN OPPOSITION TO APPELLEES’ PETITION FOR REHEARING AND REHEARING EN BANC
WILSON SONSINI GOODRICH & ROSATI P.C. CHARLES T.C. COMPTON (State Bar No. 56776) DOMINIQUE-CHANTALE ALEPIN (State Bar No. 241648) BRYSON SANTAGUIDA (State Bar No. 255173)
650 Page Mill Road, Palo Alto, CA 94304 Tel: 650.493.9300
Attorneys for Amici Curiae Action United, Alliance of Californians for Community Empowerment, American
Association of Colleges for Teacher Education, Movement Strategy Center, National Council on Educating Black Children, Parent U Turn, POWER in
Education & Student Equity Action Network
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CORPORATE DISCLOSURE STATEMENT Amicus Student Equity Action Network has no parent corporations. No publicly held corporation holds shares in the Student Equity Action Network.

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TABLE OF CONTENTS
Page
INTRODUCTION .................................................................................................... 1
ARGUMENT ............................................................................................................ 5
I. THE PANEL’S DECISION ASSURES THE TRANSPARENCY AND ACCOUNTABILITY AT THE HEART OF NCLB.................................................... 5
II. THE CONGRESSIONAL DECISION TO REQUIRE FULL STATE CERTIFICATION FOR “HIGHLY QUALIFIED” TEACHERS WAS WELL FOUNDED ......................................................................................................... 6
III. THE NINTH CIRCUIT’S DECISION TO ENFORCE NCLB’S TEACHER QUALITY PROVISIONS WILL NOT HAVE DISASTROUS CONSEQUENCES ......... 12
A. There Is No Basis for Asserting That By Upholding NCLB’s Full State Certification Standard, the Panel’s Decision Will Lead To the Hiring of Less Able Teachers and Cause Harmful Shortages ............................................................................................ 13
B. The Notion That the Panel’s Decision Will Cause Confusion Among State Regulators Is Far-Fetched ............................................ 15
C. Alternative Route Programs Will Maintain Their Importance .......... 16
CONCLUSION....................................................................................................... 18

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TABLE OF AUTHORITIES

Page(s)

CASES
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)................................................................................................8
STATUTES
20 U.S.C. § 6301(3) .................................................................................................17
20 U.S.C. § 6311(b)(8)(C) ...................................................................................6, 14
20 U.S.C. § 6311(h)(6)(B)(ii) ....................................................................................6
20 U.S.C. § 7801(23)(A)(i)..............................................................................6, 9, 13
20 U.S.C. § 6312(c)(1)(L)..........................................................................................6
RULES
Fed. R. App. P. 29......................................................................................................1
OTHER AUTHORITIES
Barbara Torre Veltri, Learning on Other People’s Kids: Becoming a Teach For America Teacher (2010) ..............................................................12
California Department of Education, Teacher Credential and Experience Report, 2008-09 ..........................................................................12
Charles T. Clotfelder et al., Teacher Credentials and Student Achievement in High School: A Cross-Subject Analysis with Student Fixed Effects (Urban Institute, Working Paper No. 11, 2007) ................................................................................................................7
Donald Boyd et al., How Changes in Entry Requirements Alter the Teacher Workforce and Affect Student Achievement (Nov. 2005) ..........................................................................................................7, 12

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Ildiko Laczko-Kerr & David C. Berliner, The Effectiveness of “Teach for America” and Other Under-certified Teachers on Student Academic Achievement: A Case of Harmful Public Policy, 10 Educ. Policy Analysis Archives, abstract (2002) ............................................7
Julian Vasquez Heilig & Su Jin Jez, Teach For America: A Review of the Evidence (2010) ...........................................................................10, 11, 12
Linda Darling-Hammond, Educational Opportunity and Alternative Certification: New Evidence and New Questions, Stanford University: A Scope Policy Brief (March 2009).............................................7
Linda Darling-Hammond et al., Does Teacher Preparation Matter? Evidence about Teacher Certification, Teach for America, and Teacher Effectiveness, 13 Educ. Policy Analysis Archives (2005).........................................................................................................7, 12
Linda Darling-Hammond & Gary Sykes, Wanted: A National Supply Policy for Education: The Right Way to Meet the “Highly Qualified Teacher” Challenge, 11 Educ. Policy Analysis Archives (2003) .............................................................................................15
Teach for America, Our Regions at a Glance .........................................................12
U.S. Department of Education, Report Highlights of State & Local Implementation of No Child Left Behind Act: Volume VIII – Teacher Quality Under NCLB: Final Report (2009) ......................................5
U.S. Department of Education, State & Local Implementation of No Child Left Behind Act: Volume VIII – Teacher Quality Under NCLB: Final Report (2009).......................................................................5, 15

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INTEREST OF AMICI CURIAE Amici Curiae represent a broad range of organizations whose mission is the improvement of public education, especially for low-income and minority children. While each association represents a unique group of constituencies—from disadvantaged children to community organizations—each has a significant interest in ensuring that the Panel’s decision is left standing. Amici represent statewide, regional and national organizations, most of which are grassroots, whose membership comprise tens of thousands of low-income and minority students and parents – the very constituency the No Child Left Behind Act (“NCLB”) was intended to benefit. The Amici joining this brief include:
• Action United: a statewide organization comprised of 42,000 mostly low to moderate-income Pennsylvanians to address issues of discrimination, affordable housing, quality education, and improved public services;
• Alliance of Californians for Community Empowerment: a state-wide community organization of 9,000 low- and moderate-income Californians working to implement change by helping ordinary citizens organize and take action in a variety of areas, including education;
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• American Association of Colleges for Teacher Education: a nationwide association of 882 institutions, which seeks to ensure that all children are taught by effective educators;
• Movement Strategy Center: an organization that supports community-based collaborations nationwide in pursuing social and racial justice, offering a range of services, including strategy development and visioning, organizational development, sustainability training and coaching;
• National Council on Educating Black Children: an organization that seeks to improve the academic achievement of African-American children;
• Parent U-Turn: a parent advocacy group dedicated to improving the educational opportunities of urban students in Los Angeles school and communities;
• POWER in Education: an organization dedicated to helping parents achieve equal rights in education;
• Student Equity Action Network: a non-profit student organization based in California which is dedicated to promoting equity in public education and college readiness for all students and to closing the
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achievement gap that exists with respect to youth from disadvantaged backgrounds and underserved minority groups. Amici believe that the Panel’s opinion, which held that the loophole created by the Department’s regulation violated the intent and purpose of the NCLB, was correct and thus that rehearing or en banc consideration is not warranted.

Dated: November 24, 2010

/s Charles T. C. Compton Charles T.C. Compton

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INTRODUCTION Amici submit this brief in opposition to the Petition for Rehearing and Rehearing En Banc filed by Defendants-Appellees. Pursuant to Federal Rule of Appellate Procedure 29, Amici sought and obtained consent to file this brief from both parties. The Panel’s decision is unquestionably correct: “highly qualified” teachers, as defined in NCLB include only those who “have obtained full State certification,” not those who merely “demonstrate[] satisfactory progress toward full-certification[.]” See Opinion (“Op.”) at 16333. In rendering its decision, the Panel highlighted numerous provisions that reinforce two major goals of the education reform envisioned by NCLB: transparency and accountability. A central premise of NCLB is that by increasing transparency and accountability, the achievement gap between minority and nonminority children can begin closing. NCLB mandates collection and disclosure of information on where educational resources are allocated and how such resources impact the quality of education (transparency), and holds states, districts, and schools responsible for the quality of education they provide (accountability). Amici believe that these two goals cannot be attained if inexperienced and partially-trained interns are added, by ultra vires regulation, to the statutory definition of “highly qualified.” Including interns or teachers-in-training in this

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definition makes it nearly impossible to detect the unequal allotment of fullycertified experienced teachers among schools and districts and, in turn, makes it extremely difficult for states, schools, parents and the public (including Amici) to address existing inequities in teacher distribution and the resulting wedge in educational quality.
Defendants-Appellees (“ED”) and their supporting amici (“the Alternative Route Amici”)1 would have this Court disregard these two major NCLB principles and endorse an altered definition of “highly qualified” that conceals, rather than confronts, the inequitable distribution of intern teachers. The brief submitted by the Alternative Route Amici (the “TFA Brief”) understandably is mute on these foundational principles of NCLB, while assaulting the “full state certification” standard for teacher quality that was unambiguously adopted by Congress.
The TFA Brief consists largely of strident advocacy for alternative route programs in general, and TFA in particular. But neither Amici, the parties nor the Panel take issue with alternative routes to certification, or with TFA; indeed they
1 The Alternative Route Amici include intern providers (Teach for America (“TFA”), The New Teacher Project, ), intern consumers (Council of the Great City Schools, Democracy Prep Public Schools, Houston Independent School District, National Alliance for Public Charter Schools, New Leaders for New Schools), and intern supporters (Center for Education Reform, Democrats for Education Reform, National Council on Teacher Quality, National Center for Education Information, United States Conference of Mayors).

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are important pipelines for developing fully-certified teachers. Amici do take issue with the TFA Brief’s recurring misdirection, conflating the teachers at issue here—those merely enrolled in alternative route certification programs (teacher interns) — and fully-certified teachers who have completed an alternative route program.2
The Alternative Route Amici’s extended endorsement of TFA “and similar programs,” apart from its dubious relevance, rests on several studies, none of which, when closely viewed, suggest that those who are merely participating in alternative route programs are more effective than fully-certified teachers. By contrast, there is a wealth of evidence supporting Congress’ determination that full-certification makes a difference in student performance. Moreover, most of the TFA Brief studies focus only on TFA teacher interns or graduates, who comprise only a fraction of the interns allowed to masquerade as “highly-qualified” under the Department’s rewording of NCLB.
Equally off-point, and unsupported by evidence, is the litany of terribles that ED and the Alternative Route Amici speculate would result from shining a light on the number and distribution of interns cast as “highly qualified” teachers. They
2 [Corrected] Brief of Amici Curiae Teach for America, et al., in Support of Defendants-Appellees’ Petition for Rehearing and Rehearing En Banc (“TFA Brief”) at 4-5, 8-10, 11-13, 15-17.

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speculate that enforcing the Congressional definition will cause schools to stop using interns and, faced with teacher shortages, be forced either to increase class sizes and reduce course offerings or hire even less qualified teachers. These assertions are mere hyperbole and conjecture. Real world experience has shown that schools faced with a shortage of fully-certified teachers can and will continue to hire teacher interns, even while using a variety of recruitment and retention tools, workplace improvements and salary incentives to attract a greater number of fully-certified teachers. Bringing transparency to the number and distribution of teacher interns can only encourage programs to increase the number of fullycertified teachers—including graduates from alternative route programs—and ensure equality in their placement in the poorer schools. The transparency and accountability mandated by NCLB will encourage more and better teachers, not the opposite.
ED and the Alternative Route Amici do not dispute the fact that, as noted by the Panel, interns are disproportionately concentrated in “disadvantaged districts” and schools. Permitting parents, students, and their communities to know the extent to which inexperienced teacher interns are being sent to high-need schools is a necessary precondition to resolving that problem.

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ARGUMENT
I. THE PANEL’S DECISION ASSURES THE TRANSPARENCY AND ACCOUNTABILITY AT THE HEART OF NCLB
Students in disadvantaged areas are disproportionately taught by teacher interns.3 Schools and school districts located in these disadvantaged areas
sometimes have trouble recruiting experienced, fully-certified teachers, and their
investments in training new teachers are appropriated by more affluent districts
who hire such teachers away once they gain experience. Schools in disadvantaged
areas must be able to implement measures which will attract fully-certified
experienced teachers and prevent turnover, including mentoring programs, salary
increases, and improvements in school conditions. Progress will require effort,
dedication and resources from local, state, and federal governments, none of which
will occur without transparency and accountability as mandated by NCLB.
Under NCLB, states schools and districts are charged with taking steps “to
ensure that poor and minority children are not taught at higher rates than other
children by inexperienced, unqualified or out-of-field teachers.” See 20 U.S.C. §§
3 U.S. Department of Education, Report Highlights of State & Local Implementation of No Child Left Behind Act: Volume VIII – Teacher Quality Under NCLB: Final Report (2009), available at http://www2.ed.gov/rschstat/eval/teaching/nclb-final/highlights.pdf; see also Final Report at http://www2.ed.gov/rschstat/eval/teaching/nclb-final/report.pdf; see also TFA Brief at 15, 16-17. All studies and reports cited in this brief have also been appended as exhibits.
(continued...)

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6311(b)(8)(C), 6312(c)(1)(L). Schools must notify parents if their child has been taught for four consecutive weeks by a teacher who is not “highly qualified.” Id. § 6311(h)(6)(B)(ii). These provisions of NCLB work in parallel to increase awareness of gaps in teacher resource distribution across low-income and minority areas and, in turn, to enable states and school districts to use that information to make satisfactory progress in closing those gaps.
These provisions are gutted if interns or teachers-in-training are counted as “highly qualified” for purposes of reporting, accountability and progress toward the goals of NCLB. The Panel correctly decided in favor of transparency by holding ED to the statutory mandate that only those teachers who “[have] obtained full State certification” may be deemed “highly qualified.”4 Op. at 16334. II. THE CONGRESSIONAL DECISION TO REQUIRE FULL STATE CERTIFICATION
FOR “HIGHLY QUALIFIED” TEACHERS WAS WELL FOUNDED As noted by the Panel, “[i]n adopting NCLB, Congress decided that teachers with ‘full State certification’ are, in the aggregate, better teachers than those without such certification.” Op. at 16335 (quoting 20 U.S.C. § 7801(23)(A)(i)).
(...continued from previous page) 4 Not addressed by the Alternative Route Amici is the fact that some children will be taught by teacher intern who, being classified as “highly qualified” prior to obtaining certification, will subsequently fail certification requirements or may never bother to complete their training.

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Congress’ conclusion was, and continues to be, supported by a wealth of evidence demonstrating that, on the whole, certification has a positive impact on student learning across core subjects.5

5 See, e.g., Ildiko Laczko-Kerr & David C. Berliner, The Effectiveness of “Teach for America” and Other Under-certified Teachers on Student Academic Achievement: A Case of Harmful Public Policy, 10 Educ. Policy Analysis Archives, abstract (2002), available at http://epaa.asu.edu/ojs/article/view/316 (finding that students of fully-certified teachers significantly outperformed those of less-than-fully-certified teachers on all sub-tests of the SAT-9); Linda DarlingHammond et al., Does Teacher Preparation Matter? Evidence about Teacher Certification, Teach for America, and Teacher Effectiveness, 13 Educ. Policy Analysis Archives, at 2-3, 18 (2005), available at http://epaa.asu.edu/ojs/article/ viewFile/147/273 (finding that students of fully-certified teachers consistently outperformed those of less than fully-certified teachers including TFA recruits); Donald Boyd et al., How Changes in Entry Requirements Alter the Teacher Workforce and Affect Student Achievement, at 32 (Nov. 2005), available at http://www.teacherpolicyresearch.org/portals/l/pdfs/how_changes_in_entry_requir ements_alter_the_teacher_workforce.pdf (finding that students of new elementary teachers with pre-service training achieved significantly higher gains in reading, language arts, and mathematics than students of new teachers enrolled in certain alternative route programs, including TFA); Charles T. Clotfelder et al., Teacher Credentials and Student Achievement in High School: A Cross-Subject Analysis with Student Fixed Effects, at 2 (Urban Institute, Working Paper No. 11, 2007), available at http://www.caldercenter.org/PDF/1001104_Teacher_Credentials_ HighSchool.pdf (finding that among the greatest negative influences on student achievement was having a new teacher who entered through an alternative route program requiring no initial teacher preparation); Linda Darling-Hammond, Educational Opportunity and Alternative Certification: New Evidence and New Questions, Stanford University: A Scope Policy Brief, at 1 (March 2009), available at http://edpolicy.stanford.edu/pages/pubs/pub_docs/alternative% 20certification%20brief.pdf (teachers who entered teaching through alternative programs were less effective during the years while they were still in training than fully prepared beginning teachers working with similar students).

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In urging en banc review, the Alternative Route Amici take issue with the Congressional mandate and its adoption of “full state certification” as the benchmark for teacher quality under NCLB. They urge the non-sequitur that Congress has expressed no preference for traditionally certified teachers over alternatively certified teachers. Equally unavailing are the numerous studies cited by the Alternative Route Amici on the merits of alternative route programs. None of their arguments directly addresses, much less impeaches, the Panel’s decision that ED’s regulation contravenes NCLB’s definition of a “highly qualified” teacher.
First, and most critically, Congress has the final say. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984) (“If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.”). The Panel, recognizing that it is “bound to accept Congress’ determination,” correctly applied this law. Op. at 16336. If the Alternative Route Amici believe that Congress was wrong, they must seek to persuade Congress, not this Court.
Second, the Alternative Route Amici contend that “Congress did not conclude that alternatively certified teachers were less qualified than traditionally certified teachers.” TFA Brief at 9-11. They protest that Congress supports alternative route certified teachers. Id. Both points are non-sequiturs in their focus

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on fully-certified teachers. Neither the Panel nor any party in this litigation has ever suggested that NCLB’s definition of “highly qualified” differentiates between teachers who obtained their certification through traditional programs and those who obtained it using alternative routes. See 20 U.S.C. § 7801(23)(A)(i) (noting “highly qualified” means teachers certified “through alternative routes to certification.”) (emphasis added). The differentiation in NCLB relevant to this litigation is between fully-certified teachers and those merely “making progress” toward full-certification. NCLB makes it clear that “highly qualified” includes only teachers who “have obtained” their state’s full-certification—not those who are merely enrolled in a certification program. Whether there is a qualitative difference between teachers who have obtained full state certification via alternative routes as opposed to traditional programs has no bearing on this appeal.
Third, the studies cited by the Alternative Route Amici as supporting the effectiveness of teachers-in-training cast no doubt on the importance of fullcertification for teacher quality and effectiveness. See TFA Brief at 11-13; supra at 7, n.5. Most of the studies cited by the Alternative Route Amici do not even purport to compare TFA program participants, or other interns, with fully-certified

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teachers. For example, Decker et al.6 compares TFA teachers with even more
under-prepared teachers still in training.7 With regard to Xu et al.,8 a non-peer
reviewed study, TFA teachers were compared to all other teachers, not just fully-
certified teachers, and the comparison group had a greater share of teachers
uncertified in their field than was true for the TFA teachers.9 As for Kane et al.,10
TFA teachers are compared with teacher groups that “minimize the effect of
teacher preparation, because the authors included teachers licensed through
‘transcript review’ and temporary permits in the same group as college-prepared
6 Paul T. Decker, Daniel P. Mayer & Steven Glazerman, The Effects of Teach For America on Students: Findings from a National Evaluation, Mathematica Policy Research, Inc. (June 9, 2004) (TFA Appendix ¶1).
7 Julian Vasquez Heilig & Su Jin Jez, Teach For America: A Review of the Evidence 5, 7 (2010), available at http://epicpolicy.org/publication/teach-foramerica.
8 Zeyu Xu, Jane Hannaway & Colin Taylor, Making a Difference? The Effects of Teach For America in High School, The Urban Institute/CALDER (Revised March 2009) (TFA Appendix ¶6).
9 Vasquez Heilig et al., supra note 7, at 7. Moreover, this study was criticized by the What Works Clearing-House at the Department’s Institute of Education Sciences for “not linking students with the teacher who taught them; instead, students were matched to teachers based on a test proctor and classroom demographics.” Id.
10 Thomas J. Kane, Jonah E. Rockoff & Douglas O. Staiger, Photo Finish: Certification Doesn’t Guarantee a Winner, Education Next, vol. 7, no. 1 (Winter 2007) (TFA Appendix ¶2); Thomas J. Kane, Jonah E. Rockoff & Douglas O. Staiger, What Does Certification Tell Us About Teacher Effectiveness? Evidence from New York City, Economics of Education Review (May 2007) (TFA Appendix ¶3).

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teachers.”11 Kane’s study in fact demonstrated that, in math and reading, students of first-year teachers-in-training did worse than those of regularly certified firstyear teachers.12 Noell et al.,13 also a non-peer reviewed study, merely shows that TFA teachers and certified teachers perform better than teachers with even less training and experience.14 Constantine et al. offers a similarly irrelevant comparison across different groups of certified teachers who have obtained their certification through alternative route and traditional programs.15
Many of the studies cited by the Alternative Route Amici also focus narrowly on TFA, to the exclusion of the many other programs in which interns participate.16 TFA participants represent a tiny minority—around 8%— of all

11 Vasquez Heilig et al., supra note 7, at 6.
12 Id.
13 George Noell & Kristin Gansle, Teach For America Teachers’ Contribution to Student Achievement in Louisiana in Grades 4-9: 2004-2005 to 2006-2007, Technical Report to the Louisiana Board of Regents (Oct. 27, 2009) (TFA Appendix ¶7).
14 Vasquez Heilig et al., supra note 7, at 7.
15 Jill Constantine et al., An Evaluation of Teachers Trained Through Different Routes to Certification, U.S. Department of Education (Feb. 2009) (TFA Appendix ¶4).
16 See Decker et al., supra note 6; Xu et al., supra note 8; Noell et al., supra note 13.

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teacher interns in California.17 The remaining approximately 92% of intern
teachers cannot be cloaked with the mantle of TFA’s purported benefits—which
are themselves a matter of strenuous debate in the profession.18 In sum, whatever
the merit of some interns, the weight of the empirical evidence supports the
unsurprising conclusion, as reached by Congress, that teachers still in training are
generally less qualified and effective than those who have obtained full state
certification.19
III. THE NINTH CIRCUIT’S DECISION TO ENFORCE NCLB’S TEACHER QUALITY PROVISIONS WILL NOT HAVE DISASTROUS CONSEQUENCES
The Alternative Route Amici and ED urge this Court to rehear this case en
banc by speculating about a series of disastrous consequences that they claim
17 Based on available data, TFA represented 727 teacher interns in California in 2009-2010. Teach for America, Our Regions at a Glance, available at http://www.teachforamerica.org/about-us/regions/. In 2008-2009, the most recent years available, California had nearly 9,000 teacher interns in total. California Department of Education, Teacher Credential and Experience Report, 2008-09, available at http://dq.cde.ca.gov/dataquest/Staff/StaffTeachCred.aspx?cChoice= StTchExp&cYear=2008-09&cLevel=State&cTopic=Paif&myTimeFrame=S.
18 Many scholars have expressed strong skepticism about the benefits of TFA. See, e.g., Vasquez Heilig, et al., supra note 7, at 2; Darling-Hammond (2005), supra note 5; Barbara Torre Veltri, Learning on Other People’s Kids: Becoming a Teach For America Teacher (2010). This skepticism is based not only on classroom effectiveness, but the related high rates of attrition and other issues. See, e.g., Vasquez Heilig et al., supra note 7, at 8; Darling-Hammond (2005), supra note 5, at 14; Boyd et al., supra note 5.
19 See supra 7, n.5.

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might arise from enforcing NCLB’s “fully-certified” standard. Happily, the parade of horribles invoked by the Alternative Route Amici is conjecture, not content, and more informed by rhetoric than reality.
A. There Is No Basis for Asserting That By Upholding NCLB’s Full State Certification Standard, the Panel’s Decision Will Lead To the Hiring of Less Able Teachers and Cause Harmful Shortages
The Alternative Route Amici and ED baldly assert, without evidence or logic, that the Panel’s decision will prohibit the hiring of “alternatively certified teachers of their choosing,” which in turn will “effectively condemn such districts to increased vacancies and an even greater reliance on the use of less qualified, long-term substitute teachers.” TFA Brief at 14-15 (emphasis added). This unsupported scaremongering is reprised elsewhere, with predictions that transparency and accountability will compel a “shift en masse from teachers enrolled in alternative certification programs to substitute teachers [and] drain the pool of talent entering the profession . . . .” Id. at 16. Absolutely no support is provided for these predictions of disaster, because there is none. Nothing in the Panel’s decision, and no stretch of logic, suggests that schools could not or would not hire fully-certified teachers who have completed alternative route programs. The Panel’s decision and NCLB are clear that graduates of alternative certification programs are indeed “highly qualified” under the statute. Op. at 16333-34; 20 U.S.C. § 7801(23)(A)(i). Logic, in fact, would suggest that alternatively certified

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teachers, like other certified teachers, will be more likely to find and keep their jobs than interns, once there is information and accountability in the hiring of “highly qualified” teachers.
Nor does NCLB prohibit the hiring of teacher interns by individual states and districts where shortages may exist. It simply requires states to develop a plan to maximize the use of teachers who are fully-certified under state law and, most importantly, equitably distribute those “highly qualified” teachers to privileged and disadvantaged schools alike. See 20 U.S.C. § 6311(b)(8)(C).
The notion that ending the misclassification of teacher interns will lead to drastic teacher shortages is also far-fetched. Where shortages of fully-certified teachers exist, districts will still be able to hire teacher interns, as they do now. The disclosure of data on the actual distribution of interns will, however, inform the public and policy-makers, enabling dialogue and consequent pressure on schools and school districts to handle shortage issues by implementing recruitment and retention programs.20
There are many effective solutions to the staffing demands in high-need schools that do not require placing teachers in classrooms before they are fully-
20 “[O]ne of the accomplishments of Teach for America and HISD [Houston Independent School District] was the development of means for enabling recruits to participate in preparation and become certified for teaching in their second or third year of teaching.” Darling-Hammond (2005), supra note 5, at 22.

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certified. California and other states have shown that shortages of fully-certified teachers can be addressed with a comprehensive set of recruitment and retention strategies: streamlining hiring practices, improving outreach and recruitment, providing service scholarships to underwrite preparation for those who will teach in high-need fields and locations, raising and equalizing salaries across districts, improving working conditions in high-need schools, providing incentives for expert veteran teachers to teach in these schools, and ensuring adequate mentoring for all beginners.21 Research demonstrates that these strategies have reduced teacher shortages, provided fully prepared teachers for most students, and, in the process, reduced costly teacher turnover. Those gains in turn increase student achievement by fostering a more experienced and stable teaching force.22
B. The Notion That the Panel’s Decision Will Cause Confusion Among State Regulators Is Far-Fetched
The Alternative Route Amici postulate that, because states maintain control over their own teacher credentialing frameworks, the Panel’s decision might cause
21 U.S. Department of Education, State & Local Implementation of No Child Left Behind Act: Volume VIII – Teacher Quality Under NCLB: Final Report at 6678 (2009), available at http://www2.ed.gov/rschstat/eval/teaching/nclb-final/ report.pdf.
22 Linda Darling-Hammond & Gary Sykes, Wanted: A National Supply Policy for Education: The Right Way to Meet the “Highly Qualified Teacher” Challenge, 11 Educ. Policy Analysis Archives, at 1, 2-3 (2003), available at http://epaa.asu.edu/ojs/article/viewFile/261/387.

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confusion in states like Florida and Massachusetts. TFA Brief at 5-7. There is no basis for this concern. Under the Panel’s decision, the states’ responsibility over credentialing systems is unaffected, just as it is by NCLB itself. Each state has determined what “full-certification” means for its teaching cohort. Like California, neither Florida nor Massachusetts considers alternative route participants to be fully-certified but rather, like California, simply bootstrapped their alternative route participants into the definition of “highly qualified” because ED’s regulation encouraged them to do so. See id. The statute and Panel decision merely ensure that teachers not fully-certified under the laws of each state will no longer be hidden behind ED’s regulatory expansion of “highly qualified” for NCLB teacher quality and transparency purposes.
C. Alternative Route Programs Will Maintain Their Importance Amici do not oppose high-quality alternative route programs. Those programs provide an important pathway into the teaching profession and can also be highly valuable in recruiting teachers. Indeed, thousands of teachers who have achieved full state certification through alternative route programs serve today as effective and highly qualified teachers.23 Those teachers are still “highly qualified”

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under the Panel’s decision, and these programs will continue to play an important role in our educational system.
Amici only oppose eviscerating the statutory definition of a “highly qualified” teacher by including interns who are only making “progress toward fullcertification.” This subterfuge does violence to both the letter and spirit of NCLB. NCLB’s promise of increased transparency and accountability in improving teacher quality and educational equality can only be achieved if states and schools are honest about where the disparities in educational resources lie. Allowing interns to enter the classroom disguised as “highly qualified” teachers undermines transparency and interdicts the expected efforts by states, school districts, parents and policy makers to close the “achievement gap between high- and lowperforming children, especially the achievement gaps between minority and nonminority students, and between disadvantaged children and their more advantaged peers.” 20 U.S.C. § 6301(3).

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CONCLUSION

For the foregoing reasons, Defendants-Appellees’ Petition for Rehearing and

Rehearing En Banc should be denied.

Dated: November 24, 2010

Respectfully Submitted,

WILSON SONSINI GOODRICH & ROSATI Professional Corporation Charles T.C. Compton Dominique-Chantale Alepin Bryson Santaguida 650 Page Mill Road Palo Alto, CA 94304 Tel: (650) 493-9300 Fax: (650) 493-6811

By: /s Charles T.C. Compton Charles T.C. Compton
Attorneys for Amici Curiae Action United, Alliance of Californians for Community Empowerment, American Association of Colleges for Teacher Education, Movement Strategy Center, Inc., National Council on Educating Black Children, Parent U Turn, POWER in Education, and Student Equity Action Network

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CERTIFICATE OF COMPLIANCE PURSUANT TO FED. R. APP. 32(A)(7) AND CIRCUIT RULE 32-1
I certify that: ***
4. Amicus Briefs
x Pursuant to Fed. R. App. P. 29(d) and Ninth Circuit Rule 32-1 the attached amicus brief is proportionately spaced, has typeface of 14 points or more and contains 4,138 words.

Dated: November 24, 2010

By: /s Charles T.C. Compton Charles T.C. Compton
Attorneys for Amici Curiae

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CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on November 24, 2010.
Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system.
I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the foregoing document by First-Class Mail, postage prepaid, to the following non-CM/ECF participants:

Michael Q. Hyde U.S. Department of Justice 20 Massachusetts Avenue, NW Suite 6138 Washington, D.C. 20001
David B. Cook, Esq. Goodwin Procter LLP 901 New York Avenue, NW Washington, D.C. 20001

Patrick S. Thompson, Esq. Goodwin Procter LLP Three Embarcadero Center, 24th Flr. San Francisco, CA 94111

/s Denise Aki Valles Denise Aki Valles

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