Renee v. Duncan

• Decision Date: 27 September 2010
• Docket Number: No. 08-16661.,08-16661.
• Citation: 623 F.3d 787
• Parties: 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, her guardian ad litem; Jazmine Johnson, a minor, by Deanna Bolden, her guardian ad litem; Adriana Ramirez, a minor, by Arcelia Trinidad Ramirez, her 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.
• Court: U.S. Court of Appeals — Ninth Circuit

623 F.3d 787

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, her guardian ad litem; Jazmine Johnson, a minor, by Deanna Bolden, her guardian ad litem; Adriana Ramirez, a minor, by Arcelia Trinidad Ramirez, her 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.

No. 08-16661.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Feb. 11, 2009.

Filed Sept. 27, 2010.

COPYRIGHT MATERIAL OMITTED.

John T. Affeldt and Tara Kini, Public Advocates, Inc., San Francisco, CA, 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, CA, 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.

Appeal from the United States District Court for the Northern District of California, Phyllis J. Hamilton, District Judge, Presiding. D.C. No. 3:07-CV-04299-PJH.

Before: D.W. NELSON, WILLIAM A. FLETCHER and RICHARD C. TALLMAN, Circuit Judges.

Opinion by Judge WILLIAM A. FLETCHER; Dissent by Judge TALLMAN.

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.

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 Education ¹ (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 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).

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 2005-06 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 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 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 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 ...;

(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 and successful alternative-route programs, such as Teach for America and Troops to Teachers, provide some training to participants before they begin...