Renee v. Duncan

W. FLETCHER, Circuit Judge,

dissenting:

I respectfully dissent. I would hold that the appellants have standing to sue under Article III.

The No Child Left Behind Act (“NCLB”) includes in its definition of “highly qualified teacher” someone who “has obtained full State certification as a teacher (including certification obtained through alternative routes to certification).” 20 U.S.C. § 7801(23)(A)(i) (emphasis added). The regulation challenged in this appeal expands this part of the definition of “highly qualified teacher” to include someone who has not obtained, but is still in the process of obtaining, full state certification. 34 C.F.R. § 200.56. In relevant part, § 200.56 provides, “A teacher meets the requirements [of a highly qualified teacher] if the teacher ... [i]s participating in an alternative route to certification program under which [t]he teacher ... [djemonstrates satisfactory progress toward full certification as prescribed by the State[.]” (emphasis added).

NCLB requires states to “ensure that all teachers teaching in core academic súbjects within the State are highly qualified.” 20 U.S.C. § 6319(a)(2). If a state cannot meet this requirement, it must 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). The practical effect of § 200.56 is to permit a State to hire so-called “alternative route participants” who are still in the process of obtaining full certification, and to then concentrate those alternative route participants in low-income and minority area schools.

Appellants are California public school students and their parents, as well as two community organizations. They allege that § 200.56 is invalid under NCLB. They further allege that they are injured by § 200.56 because it has resulted in a disproportionately high concentration of alternative route participants in their schools. This, they contend, has resulted in the student appellants receiving poorer quality education than they would otherwise receive.

The Secretary of Education argues that appellants have no standing under Article III. The Secretary does not argue that alternative route participants are as well qualified as fully certified teachers. Rather, he argues that the invalidation of § 200.56 would have no practical effect. This is so, he argues, because under NCLB a state is free to define “full state certification,” and once the state has done so the Secretary is required to accept that *914definition. Therefore, argues the Secretary, even if § 200.56 is declared invalid under NCLB, California is free to change its state-law definition of full certification to include teachers who are only in the process of obtaining that certification. • If California does that, it would then be free to hire alternative route participants who are only in the process of obtaining full certification, and then to concentrate them in low-income and minority area schools, without violating NCLB. In the Secretary’s view, the likelihood of California changing its definition of full certification in this manner is so high as to deprive the invalidation of § 200.56 of any practical effect.

The Secretary did not make this Article III standing argument in the district court. He makes the argument for the first time on appeal even though the record is, of course, unchanged. The majority agrees with the Secretary’s newly forged argument. I do not.

The Department of Education promulgated § 200.56 in December 2002. In February 2004, the California State Board of Education issued regulations based on the expanded definition of highly qualified teachers contained in § 200.56. The new California regulations piggy-backed on § 200.56 to provide, in relevant part, “A teacher who meets NCLB requirements ... is one who ... [i]s currently enrolled in an approved intern program for less than three years or has a full credential.” Cal.Code Regs. tit. 5, §§ 6101, 6110 (emphasis added). Under the new regulations, an intern who has not yet received a “full credential” from California is deemed to qualify as a “highly qualified teacher” under NCLB by virtue of § 200.56. Significantly, the new California regulations do not change the definition of “full credential” under California law.

The majority concludes that if we were to hold § 200.56 invalid, California would almost certainly change its state-law definition of “full credential” to include alternative route participants who are only in the process of receiving their full credential. There is no basis for that conclusion. It is uncontested that after the passage of NCLB but before the promulgation of § 200.56, California did not change its definition of full credential, even though such a change would have permitted the.assignment of disproportionate numbers of alternative route participants to low-income and minority area schools. It is also uncontested that California promulgated its new regulations only after the promulgation of § 200.56, and that when it did so it did not include in the new regulations any change to the state-law definition of full credential. To conclude that California would almost certainly change its definition of full credential after the invalidation of § 200.56, when it has not seen fit previously to make that change, is unsupported speculation.

Alternatively, the majority concludes that California would not need to change its state-law definition of full credential if § 200.56 is invalidated, and that California could simply leave in place its current regulations providing that an alternative route participant satisfies the NCLB requirement for a fully qualified teacher. Maj. Op. at 911 n. 8. But this is not true, for the current California regulations piggy-back on § 200.56. If § 200.56 is struck down as inconsistent with NCLB, an alternative route participant would not be fully certified under NCLB unless and until California takes affirmative action to change its statutes or regulations to provide that an alternative route participant is fully credentialed under state law.

The definition of “full certification” under California law has important consequences beyond compliance with NCLB. Quite independently of NCLB, fully certi*915fied teachers in California are hired differently, paid differently, and provided job security differently from teachers who are only in the process of obtaining full certification. It is possible (though, in my view, barely so) that California would change its definition of full credential if § 200.56 is invalidated. The Secretary and the majority point out, correctly, that California has the power under NCLB to change the definition. But there is nothing in this record to show that California is even remotely likely to do so.

I therefore conclude that appellants have shown a sufficient likelihood to satisfy Article III that the invalidation of § 200.56 would affect, to their advantage, the hiring and assignment of alternative route participants in California.