Alliance for Children v. City of Detroit Schools

• Decision Date: 15 February 2007
• Docket Number: No. 06-15021.,06-15021.
• Citation: 475 F.Supp.2d 655
• Parties: ALLIANCE FOR CHILDREN, INC., Plaintiff, v. CITY OF DETROIT PUBLIC SCHOOLS and Badriyyah Sabree, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

Page 655

475 F.Supp.2d 655

ALLIANCE FOR CHILDREN, INC., Plaintiff, v. CITY OF DETROIT PUBLIC SCHOOLS and Badriyyah Sabree, Defendants.

No. 06-15021.

United States District Court, E.D. Michigan, Southern Division.

February 15, 2007.

Jonathan B. Frank, Jackier, Gould, Bloomfield Hills, MI, for Plaintiff.

Jerome R. Watson, Miller, Canfield, Detroit, MI, Audrey J. Anderson, Hogan & Hartson, Washington, DC, for Defendants.

OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

LAWSON, District Judge.

The plaintiff, a Michigan corporation that provides "supplemental educational services," such as tutoring, to grammar and high school students, has filed the present action against the Detroit Public School District (DPS) and one of its employees alleging that the defendants wrongfully refused to include the plaintiff on an approved list of service providers. The seven-count complaint includes both federal and state law claims. The federal claims are based on the No Child Left Behind Act, the Due Process Clause, and the First Amendment. The defendants have moved to dismiss the entire complaint contending that it fails to state a cognizable claim. The Court heard oral argument from counsel for the parties on February 13, 2007 and took the motion under advisement. The Court now finds that the No Child Left Behind Act does not create a private right of action for the plaintiff, the plaintiff has not alleged a protectable interest under the Due Process Clause, and any retaliatory act alleged by the plaintiff occurred before the activity the plaintiff claims is protected by the First Amendment. The plaintiff, therefore, has failed to state a redressable claim under federal law. The Court will decline to exercise supplemental jurisdiction over the state law claims. Therefore, the motion to dismiss will be granted.

I.

In order to "ensure that all children have a fair, equal, and significant opportunity to obtain a high-quality education," the No Child Left Behind Act, 20 U.S.C. § 6301 et seq., contains provisions requiring local school districts that "fail to make adequate yearly progress" under plans developed by the State to pay for tutoring for low income students. The tutoring is referred to as "supplemental educational services," or SES. 20 U.S.C. § 6316(e).

According to the complaint, the plaintiff is a private company approved by the State of Michigan to provide SES on a contract basis. The plaintiff had a contract with DPS to provide SES during the 2005-2006 school year, during which it enrolled about 1,000 Detroit students. The plaintiff alleges that DPS terminated the contract without cause on February 13, 2006 and would not let the plaintiff provide SES for the rest of the school year, refused to pay the plaintiff for services that were provided before the contract was terminated, and refused to recognize the plaintiff as an approved provider for the 2006-2007 school year. However, a letter from the DPS, attached as exhibit E to the complaint, explains that the contract was terminated because the plaintiff did not provide the services to students required under the contract and failed to pay its employees.

The plaintiff alleges that it tried to resolve these problems by having its attorney contact DPS. Correspondence exchanged in early November 2006 suggested to the plaintiff that perhaps DPS had changed its position and would recognize the plaintiff as a provider. The plaintiff therefore sent an employee to the DPS offices to retrieve information and materials concerning students in need. However, when the plaintiff's representative arrived, defendant Badryyah Sabree, the acting executive director of DPS's Office of Compliance, refused to provide the information and told the plaintiffs employee that DPS did not consider the plaintiff to be an approved provider.

The plaintiff states that the U.S. Department of Education has audited the State's department of education and identified flaws in DPS's method of administering the SES program, including the failure to enter into SES agreements with approved providers, and providing reasonable deadlines for requesting services. The plaintiff also alleges that the defendants are unfairly favoring certain providers over others. On October 27, 2006, an announcement was made at Southeastern High School that any student who failed a class could get credit for the class by enrolling for tutoring with a specific provider. Students were told that a bus would take them to the DPS Welcome Center after school to attend an open house scheduled for certain providers of SES. Three buses of students were taken to the Welcome Center and directed to a specific provider's table, where they signed agreements to be tutored by the provider. The students' parents were not present. The complaint also alleges that the plaintiff complained to DPS about "violations that occurred during the 2005-2006 school year" and that "DPS conducted an investigation." Compl. ¶ 55. "As part of and as a result of the investigation, the DPS took further steps to impair Plaintiff's ability to provide Supplemental Educational Services and students' ability to obtain those services." Compl. ¶ 56.

Based on these allegations, the plaintiff has stated seven counts in its complaint, which are denominated as follows: breach of contract, tortious interference with contract and business relationships, violation of the No Child Left Behind Act, violation of due process, violation of fair and just treatment, violation of 42 U.S.C. § 1983, and defamation. According to the defendants, none of these claims as pleaded is viable.

II.

Motions to dismiss are governed by Rule 12(b) of the Federal Rules of Civil Procedure and allow for dismissal for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). "The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true." Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993). In reviewing a motion to dismiss under Rule 12(b)(6), the allegations in the complaint are taken as true and are viewed favorably to the non-moving party. Miller v. Currie, 50 F.3d 373, 377 (6th Cir.1995); Herrada v. City of Detroit, 275 F.3d 553, 556 (6th Cir.2001). To survive a motion to dismiss, a complaint must contain "either direct or indirect allegations respecting all material elements to sustain a recovery under some viable legal theory." In re DeLorean Motor Co., 991 F.2d 1236, 1240 (6th Cir.1993). The Court may consider only whether the allegations contained in the complaint state a claim for which relief can be granted. Roth Steel Prod. v. Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir.1983). The motion shall be granted only if "no set of facts in support of [the plaintiff's] claim [] would entitle [the plaintiff] to relief." Broyde v. Gotham Tower, Inc., 13 F.3d 994, 996 (6th Cir.1994).

A.

In count three of the complaint, the plaintiff seeks declaratory and injunctive relief based on the defendants' purported violation of the No Child Left Behind Act. The defendants insist that the NCLBA confers no private right upon the plaintiff to bring an action, and they point out that every court to have considered the question whether the NCLBA creates a private right of action has answered that question in the negative. See Fresh Start Academy v. Toledo Bd. of Educ., 363 F.Supp.2d 910 (N.D.Ohio 2005); ACORN v. N.Y. City Dept. of Educ., 269 F.Supp.2d 338 (S.D.N.Y.2003); Stokes ex re/. K.F. v. United States Dept. of Educ., 2006 WL 1892242 (D.Mass. July 10, 2006); Blanchard ex rel Blanchard v. Morton Sch. Dist., 2006 WL 2459167 (W.D.Wash. Aug.25, 2006); Coachella Valley Unified Sch. Dist. v. California, 2005 WL 1869499 (N.D.Cal. Aug.5, 2005). This Court agrees.

Challenges based on whether federal programs can be privately enforced frequently arise in the context of legislation enacted pursuant to Congress's spending authority. See Gonzaga Univ. v. Doe, 536 U.S. 273, 279-82, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002). Courts have held that such legislation can give rise to such rights enforceable under section 1983. See Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990). In other circumstances, a right of action can be implied even when no state actor is involved, unlike here. See, e.g. Cannon v. Univ. of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979) (holding that a medical school applicant had right under Title IX of the Education Amendments of 1972 to pursue a private cause of action against private universities). But as the Supreme Court has observed, " VII legislation enacted pursuant to the spending power, the typical remedy for state noncompliance with federally imposed conditions is not a private cause of action for noncompliance but rather action by the Federal Government to terminate funds to the State.'" Gonzaga Univ., 536 U.S. at 280, 122 S.Ct. 2268 (quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 28, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981)).

The Supreme Court has held that the critical question that is determinative of whether such legislation can be enforced privately is "whether or not Congress intended to confer individual rights upon a class of beneficiaries." Gonzaga Univ., 536 U.S. at 285, 122 S.Ct. 2268. In Gonzaga University, the Supreme Court acknowledged that confusion may have resulted from the conflation of its cases dealing with whether a statute created an implied private right of action with those cases determining whether there were private rights enforceable under section 1983. The Court held, however, that "in either case we must first determine whether Congress intended to create a federal right." 536 U.S. at 283, 122 S.Ct. 2268. "For a statute to create such private rights, its text must be `phrased in terms of the persons benefitted.'" Id. at 284, 122 S.Ct....