Ninth Circuit Issues Blow: 10,000 California Teachers Holding “Intern Credentials” Not “Highly Qualified Teachers” Under No Child Left Behind

September 27, 2010

This case is a bit of a reversal of fortune for Plaintiffs/Appellants.  The original three-judge opinion filed July 23, 2009, and reported at 573 F.3d 903, is withdrawn and is replaced with Renee v. Duncan (08-16661) (full opinion available here), with Circuit Judge William A. Fletcher writing for the majority and Judge Tallman in dissent).  

Background:On August 24, 2009 plaintiffs filed a petition for rehearing requesting that the three-judge panel reconsider its decision, or alternatively, that a larger eleven-judge panel rehear the case “en banc.”  Typically,  petitions for rehearing are summarily dismissed without the Court calling for a responsive brief.  But  in this case, two days after the petition for rehearing was filed, the Court ordered the U.S. Department of Education to file a response brief.   In a rare turn of events, the three-judge panel reversed itself and  now invalidates the federal regulation and as a practical matter, the corresponding  CA state regulation, permitting teachers holding “intern credentials” to count as “highly qualified” teachers for the purpose of No Child Left Behind.

No Child Left Behind “Highly Qualified Teacher” Requirement

The No Child Left Behind Act (“NCLB”) was enacted in 2002 “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.   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 (English, reading or language arts, mathematics, science, foreign languages, civics and government, economics, arts, history, and geography  in school districts receiving Title I funding (the “100% requirement”).

 NCLB contains a lengthy definition of “highly qualified teacher” including 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.  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 provides 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).

 Appellants (students, their parents, and 2 non-profit organizations) allege that 34 C.F.R. § 200.56(a) is invalid to the extent that it characterizes an alternative-route teacher who is still in the process of obtaining “full State certification” as a “highly qualified teacher.” The challenged portion of the regulation is § 200.56(a)(2)(ii). According to Public Advocates, there are approximately 10,000+ such teachers in California (where they are known as interns) and 100,000 nationwide considered “highly qualified” by the Department despite not having completed training.   

Application of Chevron deference to the Secretary of Education’s regulation:

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 unambiguously expressed intent of Congress.” 842-843; see also Pac. Nw. Generating Coop. v. Dep’t of Energy, 580 F.3d 792, 806 (9th Cir. 2009).

No Child Left Behind is clear.  NCLB provides that an alternative-route teacher is “highly qualified” once he or she has obtained “full State certification.”  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 certification as a teacher (including certification obtained through alternative routes to certification)[.] 20 U.S.C. § 7801(23) (emphasis added).

 NCLB does not define “full State certification,” but it makes clear — whatever “full State certification” means — that such certification must have been obtained before a teacher can be characterized as “highly qualified.”

Highly Qualified Means Full State Certification is “Obtained” and Not in Progress

The Court agreed with the Secretary that the meaning of the term “full State certification” in NCLB is ambiguous in that it largely depends on state law, but found this argument to be irrelevant.  For this issue, the real question is not the meaning  (ambiguous or otherwise) of “full State certification” but instead is the meaning of “has obtained.”  “Has obtained” is not ambiguous.  Notes the Court, “[t]he difference between having obtained something and merely making satisfactory progress toward that thing is patent.”

Therefore, 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 satisfactory progress toward” the requisite “full State certification.”  The regulation is invalid and inconsistent with Congressional intent.  The district court’s summary judgment in favor of the Secretary of Education is reversed and remanded.

Standing Issue Decided in Favor of Appellants

Appellants have standing.  They’re public school students, their parents, and two non-profit organizations.  The named students and student members of the non-profit organizations attend California schools at which significant numbers of intern credential holders serve as teachers, making them students either being taught by interns, have been taught by interns, or substantially likely to be taught by interns.  Writes the Court: ” We are bound to accept Congress’ determination that students taught by a disproportionate number of teachers without “full State certification” have been injured in fact.” And to causation:   ” 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.” Redressability: ” If the federal regulation is invalidated, in other words, California is very likely out of compliance with NCLB. That “change in legal status” significantly 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.”

 What Happens Next

California currently is likely not in compliance with NCLB.  The Secretary may but is not required to withhold funds if California fails to take steps to comply with NCLB.  What will California do next? Make intern credential holders fully certified teachers under California state law? What will the Secretary of Education do? Possible regulation providing that an intern teacher meeting certain criteria could have “full State certification” within the meaning of NCLB?

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