On August 21, 2007, a group of California students, their parents and a non-profit filed a lawsuit under the Administrative Procedure Act, 5 U.S.C. §§ 701-06 in the United States District Court for the Northern District of California, San Francisco Division for violating the teacher quality provisions of the federal No Child Left Behind Act. The Plaintiffs alleged that moderate and low income minority students were being harmed by the Department of Education's regulation allowing interns and others who have not achieved full state certification to qualify as "highly qualified" teachers.
The plaintiffs, represented by a combination of public interest and private counsel, sought declaratory and injunctive relief, claiming that the Defendants' regulation implementing the federal No Child Left Behind (NCLB) act violated a congressionally mandated requirement. Specifically, the plaintiffs claimed that by designating teachers who were in the process of achieving full certification as "highly qualified" the defendants had violated the clear congressional directive that "highly qualified" teachers teach students in their core classes. Congress defined a "highly qualified" teacher as one who has completed their teacher preparation and has received full state certification. However, the Defendants' regulation allows for a teacher to be classified as "highly qualified" while in the process of achieving full certification. The result, the plaintiffs allege, is that intern teachers, still in the process of being trained, disproportionately teach students of low-income and minority descent.
On motion for summary judgment, the district court analyzed the Plaintiffs' claim that the Defendants' regulation conflicts with the NCLB under a "Chevron deference analysis" (default to agency's interpretation unless that interpretation is unreasonable). The court found that the regulation did not conflict with the statute because the NCLB never defined the phrase, "full State certification as a teacher (including certification obtained through alternative routes to certification)." Therefore, Congress gave the Defendant the discretion to clarify what the statute meant, including the ability to issue a regulation certifying that a teacher was "fully qualified" while in the process of achieving full certification.
On appeal to the 9th Circuit, the Plaintiffs argued that the Defendants' regulations classifying teachers who are making progress towards achieving full certification, rather than having already been fully certified under state law, should not be afforded Chevron deference because it is unreasonable. In essence, the Plaintiffs argue that the Defendants' regulation resulted in the situation where, "a first-day participant in an alternative certification program working towards full state certification and a thirty-year, fully-certified teaching veteran are equally considered "highly qualified" under the regulation, and states and districts are permitted to treat them identically for purposes of hiring, distribution, planning and public reporting."
On the other hand, the Defendants argued that whether the federal regulation defined "highly qualified" as only one who has achieved full certification or to also include those who are in the process of achieving full certification, the decision would still be up to the state to define who is fully certified under their own state law. Seeing that the NCLB has been interpreted to not create an enforceable right against a state, a victory in this suit would not redress the Plaintiff's alleged injury, thus leaving the Plaintiff's without standing to bring their claim.
While initially issuing an opinion that held the Plaintiffs lacked standing to bring to challenge the regulation, the original 9th Circuit panel, in a rare reversal, withdrew and replaced their first opinion with a new one. In the opinion dated September 27, 2010, the 9th circuit reversed itself and found that the Plaintiffs had standing to challenge the Defendants' regulation. After finding that the Plaintiffs had standing to challenge the regulation at issue, the majority held that the regulation failed Chevron's test of deference to agency regulations. The court held that the regulation is invalid because, "it is inconsistent with the unambiguously expressed intent of Congress." The holding was based on "the difference between the meaning of "has obtained" in [the statute] and the meaning of demonstrat[es] satisfactory progress toward in [the regulation]."
On October 12, 2010 the Defendants filled a motion for rehearing en banc. In December of 2010, an amendment was introduced in the United States House of Representatives to the Continuing Resolution to fund the Government (H.R. 3082) that sought to codify the Department of Education's regulation interpreting the No Child Left Behind act's "highly qualified" classification as encompassing teachers who had not achieved full state certification and were still in the midst of their training programs. The amendment remained in the final bill signed by the President.
As a result, Congress effectively overturned the 9th circuit's finding that the regulation was not entitled to Chevron deference and codified the Department of Education's interpretation of "highly qualified." However, the amendment remains in effect only through the 2012-2013 school year. Accordingly, as of April 2, 2011, the Defendants' motion for rehearing en banc is still pending.Joshua Arocho - 07/19/2012