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 D.C. No.
JOHNSON, a minor, by Deanna
Bolden, her guardian ad litem;
3:07-CV-04299-PJH
ORDER AND
ADRIANA RAMIREZ, a minor, by
OPINION
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.
16317
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
RENEE v. DUNCAN 16321
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573 F.3d 903, is withdrawn and is replaced by the attached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.
16322 RENEE v. DUNCAN
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 Educa-
tion1 (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
1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Secretary
Arne Duncan is automatically substituted for former Secretary of Educa-
tion Margaret Spellings as Appellee in this case.
RENEE v. DUNCAN 16323
close the “achievement gap between high- and low-
performing children, especially the achievement gaps between
minority and nonminority students, and between disadvan-
taged 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 edu-
cational 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 gov-
ernment, 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
16324 RENEE v. DUNCAN
minority children are not taught at higher rates than other chil-
dren 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% require-
ment. 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 Secre-
tary 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 require-
ments 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 ful-
filled 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 qual-
ified 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 quali-
fied” 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
RENEE v. DUNCAN 16325
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 regula-
tions 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 require-
ments in paragraph (a) [and other paragraphs not rel-
evant 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 certifica-
tion as a teacher, which may include
certification obtained through alterna-
tive 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 certifica-
tion and licensure requirements appli-
16326 RENEE v. DUNCAN
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 profes-
sional 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 “alter-
native routes to certification.” The traditional path to a teach-
ing credential generally involves obtaining a degree and
taking education courses. The term “alternative routes to cer-
tification” generally refers to non-traditional training pro-
grams 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 pro-
grams shall address geographic and subject matter shortage
areas, and shall be targeted toward people with work experi-
RENEE v. DUNCAN 16327
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 alternative-
route program. After successful completion of an alternative-
route program, a teacher receives a credential similar or iden-
tical to a credential obtained after successful completion of a
traditional teacher-training program.
Appellants do not object to characterizing an alternative-
route teacher who has already obtained “full State certifica-
tion” 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 certifi-
cation 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 certi-
fication as a teacher”) (emphasis added). However, Appel-
lants 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 satis-
factory progress toward full certification[.]” 34 C.F.R.
§ 200.56(a)(2)(ii)(A)(4) (emphasis added). Appellants con-
tend 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
16328 RENEE v. DUNCAN
agree that NCLB gives the states considerable flexibility in
establishing credentialing systems under which a state teach-
ing permit or credential may constitute “full State certifica-
tion” 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. Cali-
fornia 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 Emer-
gency 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 certi-
fication 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-
RENEE v. DUNCAN 16329
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 cre-
dential 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 pre-
liminary credential include a bachelor’s degree, a passing
score on the state’s “basic skills examination,” satisfactory
completion of an accredited “program of professional prepa-
ration” (including traditional and alternative-route programs),
and a passing score on one or more subject matter examina-
tions or completion of an approved subject matter program.
Id. § 44259(b).
Finally, at the top of the hierarchy, there is a “clear creden-
tial.” See id. § 44259(c). To obtain a clear credential, an indi-
vidual 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 pro-
vides 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 appli-
cable 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
16330 RENEE v. DUNCAN
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 Cali-
fornia 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 regula-
tion 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 certifica-
tion,” or if the teacher “[h]as fulfilled the State’s certification
and licensure requirements applicable to the years of experi-
ence the teacher possesses.” 34 C.F.R. § 200.56(a)(2). Mim-
icking 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. Spe-
cifically, they contend that intern teachers in California do not
have “full State certification” and are thus not “highly quali-
fied 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 con-
tend, will be that California is likely to take steps to ensure
that fewer intern teachers, and more teachers with “prelimi-
nary” and “clear” credentials, teach in minority and low-
income public schools in California.
RENEE v. DUNCAN 16331
II. Prior Proceedings
Appellants brought suit in federal district court, alleging
that 34 C.F.R. § 200.56(a) is invalid to the extent that it char-
acterizes an alternative-route teacher who is still in the pro-
cess 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 judg-
ment. 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 pro-
vision 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.” Bio-
diversity 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
16332 RENEE v. DUNCAN
will help the reader understand our discussion of Article III
standing.
B. The Merits
The challenged federal regulation interprets a federal stat-
ute. The regulation was adopted by the responsible federal
agency through notice and comment rulemaking. We there-
fore 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 unam-
biguously 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 Con-
gress has not clearly spoken on the precise question, the sec-
ond 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 certifica-
tion.” 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 cer-
tification as a teacher (including certifi-
cation obtained through alternative routes
to certification)[.]
RENEE v. DUNCAN 16333
20 U.S.C. § 7801(23) (emphasis added). NCLB does not
define “full State certification,” but it makes clear — what-
ever “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 quali-
fied” even if he or she has not obtained “full State certifica-
tion.” 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 certifica-
tion 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 cer-
tification” in NCLB is ambiguous because it depends to a sub-
stantial 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 irrel-
evant.
[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 differ-
ence between the meaning of “has obtained” full State certifi-
cation in the statute, 20 U.S.C. § 7801(23), and the meaning
of “demonstrates satisfactory progress toward” full State cer-
tification 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
16334 RENEE v. DUNCAN
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 satisfac-
tory 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 Appel-
lants 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 immi-
nent.” 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 chal-
lenged. Id. “Third, it must be likely, as opposed to merely
speculative, that the injury will be redressed by a favorable
RENEE v. DUNCAN 16335
decision.” Id. at 561 (internal quotations omitted). We con-
sider these three requirements in turn.
1. Injury in Fact
Appellants are California public school students, their par-
ents, and two non-profit organizations, Californians for Jus-
tice (“CFJ”) and California Association of Community
Organizations for Reform Now (“California ACORN”). The
named students, along with student members of the two orga-
nizations, 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 concentra-
tions of minority students. In contrast, two percent of interns
in California teach in the ten percent of schools with the low-
est 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 debat-
able if intern teachers enrolled in programs such as Teach for
16336 RENEE v. DUNCAN
America do not have “full State certification.” But that is not
for us to decide. We are bound to accept Congress’ determi-
nation 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 regu-
lations. The parties do not dispute that the California regula-
tions 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. “Plain-
tiffs 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.” Ben-
nett 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 sig-
nificant 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 misinter-
preted the law, there is Article III standing “even though the
agency . . . might later, in the exercise of its lawful discretion,
RENEE v. DUNCAN 16337
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 certifi-
cation.” 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 certifica-
tion” 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” signifi-
cantly 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 conclu-
sion. 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 interpre-
tation 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 certi-
fied under current California law. California’s Education
16338 RENEE v. DUNCAN
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 “certifi-
cated 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 “reg-
ular”).
The 2004 piggybacking California regulations similarly
distinguish between intern teachers and fully credentialed
teachers. Under the regulation applicable to middle and sec-
ondary 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 cre-
dentialing laws to provide that the holder of an intern creden-
tial 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 pro-
vide 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-
RENEE v. DUNCAN 16339
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 reg-
ulation is struck down, and even if intern teachers in Califor-
nia 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 spe-
cific 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 Secre-
tary 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 certi-
fication” 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 teach-
ing staffs of minority and low-income schools. It is undis-
puted that the Secretary has authority to withhold funds if a
state does not take such steps. See 20 U.S.C. § 1234c (Secre-
tary 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”).
16340 RENEE v. DUNCAN
[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 Cal-
ifornia is a scofflaw state. That is, we are unwilling to assume
that California will refuse to take steps to come into compli-
ance 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 invali-
dation 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 pre-
cisely 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[ ] sat-
isfactory 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 Sec-
retary could promulgate a valid regulation providing that an
intern teacher meeting certain criteria could have “full State
certification” within the meaning of NCLB.
RENEE v. DUNCAN 16341
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 pub-
lic school students, their parents, and two non-profit organiza-
tions, 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 regula-
tion’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 chal-
lenge 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 Proce-
dure 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-
16342 RENEE v. DUNCAN
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] con-
tains 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 “invok-
ing 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 dis-
proportionate 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 deter-
mine whether the would-be plaintiff has standing.” Id. at 264-
65; 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
RENEE v. DUNCAN 16343
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 entitle-
ment 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 pre-
cisely 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 qual-
ified” 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 num-
ber of teachers with “full State certification” teaching in low-
income 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 hir-
ing short-term or long-term substitute teachers. See Brief of
Amicus Curiae Teach for America at 29.
16344 RENEE v. DUNCAN
Some have argued that students taught inconsistently by
substitute teachers do not receive the same quality education
as students consistently taught by permanent teachers, regard-
less 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 (cit-
ing 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 prov-
ing 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 qual-
ity education than all teachers participating in alternative
route programs. Compare Kati Haycock, Good Teaching Mat-
ters: 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) (not-
ing that “a teacher’s certification status matters little for stu-
dent 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)
RENEE v. DUNCAN 16345
(noting that “[n]ational studies have . . . found that differences
in teachers’ qualifications—including teachers’ general abil-
ity, 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 character-
ized as a lower proportion of experienced to inexperienced
teachers instructing them as opposed to those instructing stu-
dents in affluent areas. It is this alleged injury—the lower pro-
portion 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’ defi-
nition 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 requir-
ing the action will redress it.” Id. at 561-62. “When, however,
16346 RENEE v. DUNCAN
as in this case, a plaintiff’s asserted injury arises from the
government’s allegedly unlawful regulation (or lack of regu-
lation) 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 plain-
tiff 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, stand-
ing 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 par-
ties 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 Cal-
ifornia 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
RENEE v. DUNCAN 16347
considers teachers presently participating in alternative certifi-
cation programs to be highly qualified for purposes of NCLB.
Appellants’ alleged injury is therefore caused by Califor-
nia’s credentialing scheme. But California is not—and seem-
ingly 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 enforce-
able 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 Arti-
cle 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 Secre-
tary’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 regu-
lation, 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”
16348 RENEE v. DUNCAN
—not certain—“that the injury will be redressed by a favor-
able 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 favor-
able 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 quota-
tion omitted).
The majority does not strike down California’s regulation
—the cause of Appellants’ alleged injury. Instead, the major-
ity strikes down a federal regulation that is nowhere men-
tioned 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 bur-
den to prove that California would be coerced into doing any-
thing in response to the majority’s holding. Cf. Bennett, 520
U.S. at 169.
Appellants argue that a declaration stating that the Secre-
tary’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 certi-
fication 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 sec-
tion is struck down, “California [will be] very likely out of
RENEE v. DUNCAN 16349
compliance with NCLB” and will therefore be forced to
amend its credentialing scheme. Maj. Op. at 16337. I dis-
agree. 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 regula-
tions for the allocation of federal funds,” but nowhere requires
it to conform these “rules and regulations” to federal regula-
tions. Cal. Educ. Code § 12001.
Appellants argue that because California allegedly changed
its laws to comply with NCLB and its implementing regula-
tions once before, it will do so again if the Secretary’s imple-
menting 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. Cali-
fornia 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, Cali-
fornia will change its credentialing law”). Even with the fed-
eral regulation stricken, the existing California regulations
would continue to credit an intern as “[a] teacher who meets
16350 RENEE v. DUNCAN
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 substan-
tially with NCLB’s requirements.” Maj. Op. at 16323. Con-
trary 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 Secre-
tary is prohibited from withholding funds from any State edu-
cational agency or local educational agency if the State
educational agency or local educational agency fails to adopt
a specific method of teacher or paraprofessional certifica-
tion.”); 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 certifica-
tion of teachers or education paraprofessionals.”). This spe-
cific 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 stat-
ing 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 dispropor-
tionately 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-
RENEE v. DUNCAN 16351
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, includ-
ing 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 inexperi-
enced, 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 objec-
tives” and describe the steps and strategies the state will use
to ensure teacher parity. 34 C.F.R. § 200.57(a)(2). The regula-
tion also requires school districts to develop a plan to ensure
that
[t]hrough incentives for voluntary transfers, profes-
sional development, recruitment programs, or other
effective strategies, minority students and students
from low-income families are not taught at higher
16352 RENEE v. DUNCAN
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 recon-
sider 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 deci-
sion to do so lies squarely within the kind of “broad and legit-
imate 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
RENEE v. DUNCAN 16353
be redressed. Maj. Op. at 16339. But this argument again
boils down to how “fully State certified” is defined—a ques-
tion 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 certifica-
tion 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., con-
curring).
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 dis-
missal of the case.