3rd Circuit: Parents Have No Right to Sue for NCLB Violations

On November 20, 2008, the U. S. Court of Appeals for the Third Circuit ruled that the No Child Left Behind Act "does not confer a right of action enforceable by individuals." Parents do not have a right to sue under NCLB because Congress designed the law to regulate school districts and did not include any "rights creating" language that would allow individuals to seek enforcement through lawsuits.

No Child Left Behind is a comprehensive plan to reform schools, change school culture, empower parents, and improve education for all children. NCLB applies to all children who attend public schools - kids with disabilities, kids with behavior problems, poor kids, and other groups who have often been written off - minorities, immigrants, and English as Second Language (ESL) youngsters.

Title 1 Schools Transfers and Supplementary Education Services (SES)

The No Child Left Behind Act provides parents with options to leave a failing school, depending on whether the child attends a school that receives Title 1 grants.

If your child attends a school that does not receive Title 1 funds, you will know whether your child's school is improving at the required rate. You will know which subgroups your school is teaching successfully.

If your child attends a school that receives Title 1 funds, you have more choices.

If a Title 1 School fails to meet its AYP goal for two consecutive years, all the children in the school may choose to attend a non-failing school in your school district. If all schools in your district fail, you may send your child to a school in another school district. Section 1116(b)(7)(C)(i)

If your Title 1 School fails to reach its AYP goal for three years, your school will provide supplemental services to the children remaining there. These supplemental services include tutoring, after-school programs, and summer school.

In Newark Parents Association v. Newark  Public Schools 
http://www.wrightslaw.com/law/caselaw/08/3d.newarknj.nclb.pdf, 
a proposed class of parents and children claimed that a high percentage of Newark’s schools are labeled as failing or "in need of improvement." They alleged that Newark school officials violated the law's requirements by failing to notify parents that:  

* their children were enrolled in deficient schools; 
* the children had a right to transfer from failing schools to non failing schools; 
* the children had a right to "supplemental educational services."

NCLB "Does Not Confer a Right of Action Enforceable By Individuals"

The U.S. Circuit Judge found that several federal district courts addressed this issue. These courts were unanimous in holding that the law "does not confer a right of action enforceable by individuals."

Gonzaga University v. Doe 
Gonzaga, 536 U.S. at 279
(quoting 20 U.S.C. § 1232g(b)(1)).


The Court noted that statutes enacted by Congress under its spending power will rarely provide a private cause of action to individuals. Indeed, it emphasized that “‘[i]n legislation enacted pursuant to the spending power, the typical remedy for state noncompliance with federally imposed conditions is not a private cause of action for noncompliance but rather action by the Federal Government to terminate funds to the State.’” Id. at 280

"the primary focus is on regulating the State by obligating it to notify parents in certain circumstances; it is only through that regulation that students and their parents benefit."

"The Act contains no procedures—administrative or judicial—by which individuals can
enforce violations of its notice, transfer, or supplemental educational services provisions ... only the Secretary of Education can enforce a State’s violation of the Act."

In the appeal, attorneys Scott M. Michelman of the American Civil Liberties Union, along with professor Emily B. Goldberg of Seton Hall Law School argued that U.S. District Judge Susan D. Wigenton of the District of New Jersey erred in dismissing the suit by failing to recognize that the parents were demanding only that the law's notice provisions be honored.

Barry disagreed, saying the lower court correctly found there was no implied cause of action. "Only the Secretary of Education can enforce a state's violation of the act," Barry wrote in an opinion joined by Judges Thomas L. Ambro and Kent A. Jordan.

"The overall structure of the act supports the conclusion that Congress did not intend to confer enforceable individual rights," Barry wrote. Attorney Adam S. Herman of the Newark Public Schools office of general counsel argued the appeal for the school district.

The Secretary of the U. S. Department of Education appoints Regional Representatives for different regions in the country. These Representatives are responsible for helping states comply with the law and for monitoring compliance in their region. 

To find the Regional Representative for your state, click here http://www.ed.gov/about/contacts/state/index.html, click your state, click the third item in the list, then scroll to the bottom of the list to find the Secretary's Regional Representative for your state.