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Published in Print: February 5, 2003, as Suits Contend Officials Fail to Obey ESEA

Suits Contend Officials Fail to Obey ESEA

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In what some legal experts believe could be the initial wave in a tide of litigation, the first lawsuits have been filed charging that state or district officials are not living up to their obligations under the "No Child Left Behind" Act of 2001.

Parents of children assigned to failing schools in the New York City and Albany, N.Y., systems claimed in a lawsuit last week that those districts had denied students the chance to transfer or receive supplemental services as required by the federal law.

Meanwhile, the California state board of education was sued late last month by two groups that argue the board's definition of "highly qualified" teachers does not pass muster under the law because it covers educators with emergency credentials. The groups sued under the state's administrative-procedure law, seeking to require the board to drop that definition and get more public input before crafting a new one.

School law experts said they were not surprised that the wide-ranging No Child Left Behind law, a reauthorization of the Elementary and Secondary Education Act, would lead to litigation.

"We live in a litigious society, and this is something you expect," said Julie Underwood, the general counsel of the National School Boards Association.

Scott R. Palmer, a civil rights enforcement official in the U.S. Department of Education under President Clinton and now a private lawyer advising states on ESEA compliance, said the suits likely are only the first salvos in an effort to use the courts to interpret the law and define state and school district obligations.

But whether such lawsuits get very far is another question.

"It is likely we'll see more litigation like this," Ms. Palmer said. "But there are a number of challenges, both procedural and substantive, that such suits will face."

'Shortcomings'

In the New York case, three parents sued the New York City and Albany systems and their superintendents. The suit was filed Jan. 27 in state supreme court—a trial court—in Manhattan and seeks status as a class action on behalf of all children allegedly denied their "rights" to transfer to other schools and to receive supplemental education services.

"Parents have been intentionally misinformed, misled, and uninformed about their rights under [the No Child Left Behind Act]," charges the lawsuit, which was filed by Charles G. King, a Glen Cove, N.Y., lawyer who last year made an unsuccessful run at the Democratic nomination for lieutenant governor of New York.

The New York City plaintiffs are Eunice Staton and Latasha Gibbs, who say in the lawsuit that they never received any information about their rights under the No Child Left Behind law from the city's 1.1 million-student district. Other parents were told they were too late to apply for transfers, or their transfer requests were denied by the city education department, the suit alleges.

When Ms. Staton sought tutoring for her 7th grade son, she was told there were no such services being offered at his school, Intermediate School 172, even though it was on the state's list of failing schools, the suit says.

Kevin Ortiz, a spokesman for the New York City system, said Mayor Michael R. Bloomberg and Schools Chancellor Joel I. Klein have taken steps to improve communications efforts and access to options under the federal law.

"We basically have said the process last fall did have some shortcomings," Mr. Ortiz said. "We are making some changes to notify parents of their options and give them more options."

Lonnie E. Palmer, the superintendent of the 10,000-student Albany city district, said officials there were taken aback by the lawsuit because they went so far as to have the state education department vet letters to parents discussing the options under the No Child Left Behind Act.

"We feel we complied with the letter and the spirit of the law," he said. "We did not get a lot of requests for movement between schools or for tutoring. I think this [lawsuit] is more of a public relations effort than a legal effort."

Under the No Child Left Behind Act, schools that fail to make "adequate yearly progress" two years running must allow disadvantaged students to transfer. After a third year of inadequate progress, such students must be offered supplemental services.

The New York case raises at least one question with potentially lasting influence nationwide: Do parents have a private right to sue school districts or states to enforce rights or benefits under the No Child Left Behind Act?

School law experts said the lengthy statute does not appear to expressly authorize public school parents to sue. But that is not the end of the matter, because courts sometimes find a basis for an "implied right of action."

The New York suit calls on the court to "imply" the remedies the plaintiffs seek: orders requiring the districts to provide better parental notification of the law's requirements, transfers for students in failing schools "upon proper request from parents," and immediate supplemental services to all eligible students. It does not seek monetary damages.

Ms. Underwood of the school boards' association, based in Alexandria, Va., said she does not believe courts would recognize an implied right of parents to sue under the law.

"There is no remedy section in No Child Left Behind," she said. "And with this [U.S.] Supreme Court, we're moving away from implied rights of action." She pointed to the high court's ruling last term in Gonzaga University v. Doe, which held that an individual could not sue to enforce rights under the federal Family Educational Rights and Privacy Act.

Mr. Palmer, whose Washington law firm, Nixon Peabody, works with states in implementing the No Child Left Behind law, said he agrees the law contains no express discussion of individual lawsuits. But he was more cautious about predicting whether courts would find an implied right to sue.

Still, recent Supreme Court rulings and the language of the statute suggest that individual plaintiffs likely face a tough time seeking to enforce the provisions in court, Mr. Palmer said.

"Certainly there is a burden associated with litigation," he said. "What this reinforces is the need for states and school districts to get this right on the front end."

Mr. King, the plaintiffs' lawyer, disagreed about his suit's prospects. "In my opinion, it is fairly clear and straightforward that parents do have a right of action" under the new law, he said. "The legislative history makes clear that Congress was trying to give parents the tools to get out from under a failing school."

Emergency Definition

The California case likely will not raise the same question about whether the plaintiffs have a right to be in court, because they are not suing on the basis of the No Child Left Behind law itself.

The groups involved are the Oakland-based Californians for Justice and the California Association for Community Organizations for Reform Now, the state affiliate of the national advocacy group ACORN. They sued the state school board in San Francisco Superior Court on Jan. 23, seeking the revised definition of what will constitute a "highly qualified" teacher in California.

Federal law now requires that all teachers newly hired under Title I be "highly qualified," and that all teachers be highly qualified by the end of 2005-06.

Last summer, the California board sent a preliminary document to Washington proposing that teachers with nonclassroom work experience be counted as highly qualified under the federal mandate, provided that their previous work could be construed as relevant to their teaching fields, and that they were making progress on other certification requirements. The U.S. Department of Education shot down that submission, and so far the state board has not put forth another plan.

The community groups filed the lawsuit in part to force the board to consider public opinion, said Jenny Huang, the lead lawyer representing the plaintiffs. She said many of the community groups' members have thoughts that they want heard on the matter.

But "the ultimate goal of the lawsuit is to improve the quality of teachers in California," Ms. Huang said.

In 2000-01, more than 34,000 teachers in California, about 11 percent of the state's total teacher corps, were working with emergency certification. California has had one of the nation's most critical teacher shortages, owing in part to the state's high cost of living and its class-size-reduction program in grades K-3.

Phil Garcia, a spokesman for the state board, said last week that none of the board members had reviewed the lawsuit and would not be able to comment.

However, he said, the board is writing a new proposal for compliance with federal law and will submit that to the federal officials by the May 1 deadline.

Vol. 22, Issue 21, Pages 1,13

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