School Dist., Pontiac v. Secretary, Us. Dept. Educ.

• Decision Date: 16 October 2009
• Docket Number: No. 05-2708.,05-2708.
• Citation: 584 F.3d 253
• Parties: SCHOOL DISTRICT OF the CITY OF PONTIAC, et al., Plaintiffs-Appellants, v. SECRETARY OF the UNITED STATES DEPARTMENT OF EDUCATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

584 F.3d 253

SCHOOL DISTRICT OF the CITY OF PONTIAC, et al., Plaintiffs-Appellants, v. SECRETARY OF the UNITED STATES DEPARTMENT OF EDUCATION, Defendant-Appellee.

No. 05-2708.

United States Court of Appeals, Sixth Circuit.

Argued: December 10, 2008.

Decided and Filed: October 16, 2009.

ARGUED:

Robert H. Chanin, Bredhoff & Kaiser, P.L.L.C., Washington, D.C., for Appellants. Alisa B. Klein, United States Department of Justice, Washington, D.C., for Appellee.

ON BRIEF:

Robert H. Chanin, Jeremiah A. Collins, Bredhoff & Kaiser, P.L.L.C., Washington, D.C., Dennis R. Pollard, Thrum Law Firm, P.C., Bloomfield Hills, Michigan, Alice Margaret O'Brien, California Teachers Association, Burlingame, California, Philip A. Hostak, Office of General Counsel, National Education Association, Washington, D.C., for Appellants. Alisa B. Klein, Mark B. Stern, United States Department of Justice, Washington, D.C., for Appellee.

Before: BATCHELDER, Chief Judge; MARTIN, BOGGS, DAUGHTREY, MOORE, COLE, CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE, and WHITE, Circuit Judges.

COLE, J., (pp. 256-278) delivered an opinion in favor of reversing the district court's judgment of dismissal, in which MARTIN, DAUGHTREY, MOORE, CLAY, GILMAN, and WHITE, JJ., joined, and in which GIBBONS, J., joined in part. SUTTON, J., (pp. 278-297) delivered a separate opinion concurring in the order affirming the district court's judgment, in which BATCHELDER, C.J., BOGGS, COOK, and KETHLEDGE, JJ., joined, and in which McKEAGUE, J., joined as to Part II only, with McKEAGUE, J., (pp. 297-310) also delivering a separate opinion concurring in affirming dismissal, in which ROGERS and GRIFFIN, JJ., joined as to Part II only. GIBBONS, J., (pp. 310-313) delivered a separate opinion in favor of reversing the judgment of the district court.

ORDER

This case was heard by the en banc court on December 10, 2008. The court, for the reasons more fully set forth in the opinions issued herewith, divided evenly, with eight judges voting to affirm the judgment of the district court and eight voting to reverse that judgment. Consequently, the judgment of the district court is AFFIRMED. See Goodwin v. Ghee, 330 F.3d 446 (6th Cir.2003), and Stupak-Thrall v. United States, 89 F.3d 1269 (6th Cir.1996).

IT IS SO ORDERED.

OPINION

COLE, Circuit Judge.

The controversy presently before this Court is neither particularly complicated nor inherently political. Understanding the precise question before us means understanding what this case does not present — namely, this case does not ask us to enter the political arena to judge the relative merits of the No Child Left Behind Act of 2001 ("NCLB" or "the Act"), 20 U.S.C. §§ 6301-7941. Also, this case has nothing to do with the ongoing debate between the various advocates of state versus federal educational funding. Rather, we need to answer only a straightforward question of statutory interpretation: Whether, analyzed under the Spending Clause of the United States Constitution, the obligations set forth in NCLB are unambiguous such that a state official would clearly understand her responsibilities under the Act.

Plaintiffs-Appellants are school districts and education associations (collectively, "Plaintiffs")¹ that receive federal funding under NCLB in exchange for complying with the Act's various educational requirements and accountability measures. Based on the so-called "Unfunded Mandates Provision," which provides that "[n]othing in this Act shall be construed to ... mandate a State or any subdivision thereof to spend any funds or incur any costs not paid for under this Act," 20 U.S.C. § 7907(a), Plaintiffs filed suit in district court against the Secretary of the United States Department of Education (the "Secretary") seeking a declaratory judgment that they need not comply with the Act's requirements where doing so would result in increased costs of compliance not covered by federal funds. The district court concluded that Plaintiffs must comply with the Act's requirements regardless of any federal-funding shortfall and, accordingly, granted the Secretary's motion to dismiss the complaint for failure to state a claim upon which relief can be granted.

I. BACKGROUND

A. The No Child Left Behind Act

On January 8, 2002, then-President George W. Bush signed NCLB into law. The Act — "a comprehensive educational reform" — amended the Elementary and Secondary Education Act of 1965 ("ESEA"), Pub.L. No. 89-10, 79 Stat. 27 (codified as amended at 20 U.S.C. §§ 6301-7941 (2003)). See Connecticut v. Spellings, 453 F.Supp.2d 459, 468 (D.Conn. 2006). The ESEA targeted funding to students in low-income schools, and its purposes included overcoming "any effects of past racial discrimination." George v. O'Kelly, 448 F.2d 148, 151 (5th Cir.1971); accord Barrera v. Wheeler, 475 F.2d 1338, 1340 (8th Cir.1973); United States v. Jefferson County Bd. of Educ., 372 F.2d 836, 851 (5th Cir.1966). The ESEA was periodically reauthorized and amended over the next few decades.

In contrast to prior ESEA iterations, NCLB "provides increased flexibility of funds, accountability for student achievement and more options for parents." 147 Cong. Rec. S13365, 13366 (2001) (statement of Sen. Bunning). The Act focuses federal funding more narrowly on the poorest students and demands accountability from schools, with serious consequences for schools that fail to meet academic-achievement requirements. Id. at 13366, 13372 (statements of Sens. Bunning, Landrieu, and Kennedy). States may choose not to participate in NCLB and forgo the federal funds available under the Act, but if they do accept such funds, they must comply with NCLB requirements. See, e.g., 20 U.S.C. § 6311 ("For any State desiring to receive a grant under this part, the State educational agency shall submit to the Secretary a plan....") (emphasis added); see also Spellings, 453 F.Supp.2d at 469 ("In return for federal educational funds under the Act, Congress imposed on states a comprehensive regime of educational assessments and accountability measures."). In addition, with enumerated exceptions, under NCLB "the Secretary may waive any statutory or regulatory requirement ... for a State educational agency, local educational agency, Indian tribe, or school through a local educational agency, that ... receives funds under a program authorized by this Act." 20 U.S.C. § 7861(a).

Title I, Part A, of NCLB, titled "Improving Basic Programs Operated by Local Educational Agencies," continues to pursue the objectives of the ESEA and imposes extensive educational requirements on participating States and school districts, and, likewise, provides the largest amount of federal appropriations to participating States. For example, in fiscal year 2006, NCLB authorized $22.75 billion in appropriations for Title I, Part A, compared to $14.1 billion for the remaining twenty-six parts of NCLB combined. Title I, Part A's stated purposes include meeting "the educational needs of low-achieving children in our Nation's highest-poverty schools, limited English proficient children, migratory children, children with disabilities, Indian children, neglected or delinquent children, and young children in need of reading assistance." 20 U.S.C. § 6301(2).

In addition to Title I, Part A, NCLB establishes numerous other programs, including a literacy initiative for young children and poor families (Title I, Part B), special services for the education of children of migrant workers (Title I, Part C), requirements that all teachers be "highly qualified" (Title II, Part A), and instruction in English for children with limited English ability (Title III). Plaintiffs' complaint focuses on the educational requirements and funding provisions of Title I, Part A.

To qualify for federal funding under Title I, Part A, States must first submit to the Secretary a "State plan," developed by the State's department of education in consultation with school districts, parents, teachers, and other administrators. 20 U.S.C. § 6311(a)(1). A State plan must "demonstrate that the State has adopted challenging academic content standards and challenging student academic achievement standards" against which to measure the academic achievement of the State's students. Id. § 6311(b)(1)(A). The standards in the State plan must be uniformly applicable to students in all of the State's public schools, and must cover at least reading or language arts; math; and, by the fourth grade, science skills. Id. § 6311(b)(1)(C).

States also must develop, and school districts must administer, assessments to determine students' levels of achievement under plan standards. Id. § 6311(b)(2)(A). These assessments must show the percentage of students achieving "proficiency" among "economically disadvantaged students," "students from major racial and ethnic groups," "students with disabilities," and "students with limited English proficiency." Id. § 6311(b)(2)(C)(v)(II). Schools and districts are responsible for making "adequate yearly progress" ("AYP") on these assessments, meaning that a minimum percentage of students, both overall and in each subgroup, must attain proficiency. 34 C.F.R. § 200.20(a)(1).

A school's failure to achieve AYP triggers other requirements of Title I, Part A. See 20 U.S.C. § 6316(b). If a school fails to make AYP for two consecutive years, it must be identified by the local educational agency for school improvement. 20 U.S.C. § 6316(b)(1)(A). Among other things, a school in improvement status must inform all of its students, including those who have been assessed as proficient, that they are permitted to transfer to any school within the district that has not been identified for school improvement. Id. § 6316(b)(1)(E)(i). The school also must develop a two-year plan setting forth extensive measures to improve student performance, including further education for teachers and possible before- or after-school instruction or...