APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civil No. 06-cv-05690) District Judge: The Honorable Susan D. Wigenton.
The opinion of the court was delivered by: Barry, Circuit Judge
Argued: September 25, 2008
Before: BARRY, AMBRO and JORDAN, Circuit Judges.
Appellants are a putative class of parents of children enrolled in the public elementary and middle schools of Newark, New Jersey, and an organization that represents them. They brought suit against appellees, Newark's public school system and various school administrators, under the No Child Left Behind Act ("NCLBA" or the "Act"), 20 U.S.C. § 6301 et seq., and 42 U.S.C. § 1983. The complaint alleges that because the Newark public school system has failed to live up to its obligations under certain provisions of the Act, appellants are entitled to privately enforce those provisions. Appellees moved to dismiss and the District Court granted the motion, concluding that Congress did not confer on individuals an enforceable right of action under the Act. Deciding what is an issue of first impression in the federal courts of appeals, we will affirm.
I. The No Child Left Behind Act
A. The Act's Purpose and Its Funding Provisions
Congress enacted the Act pursuant to its spending power. See U.S. Const. art. I, § 8, cl. 1. The Act, at its outset, states that its purpose is "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 (footnote omitted). This eminently laudatory purpose is to be accomplished by, among other things, holding schools, local educational agencies, and States accountable for improving the academic achievement of all students, and identifying and turning around low-performing schools that have failed to provide a high-quality education to their students, while providing alternatives to students in such schools to enable the students to receive a high-quality education.
As with other legislation enacted under Congress's spending power, the Act offers a simple quid pro quo: Congress shall appropriate funds to a State educational agency*fn1 if it agrees to take certain specific actions. The State, in turn, appropriates those funds to its local educational agencies (referred to alternatively as "LEAs") for the purpose of helping schools to improve in accordance with the Act. See id. §§ 6302(i), 6303(g), 6311(a)(1), 6316(a)(1). To become eligible for federal funding, the State educational agency must first submit to the U.S. Secretary of Education a plan demonstrating that "the State has adopted challenging academic content standards and challenging student academic achievement standards that will be used by the State, its local educational agencies, and its schools." Id. § 6311(b)(1)(A). The State plan shall, among other things, "demonstrate that the State has developed and is implementing a single, statewide State accountability system that will be effective in ensuring that all local educational agencies, public elementary schools, and public secondary schools make adequate yearly progress." Id. § 6311(b)(2)(A). The State is tasked with defining "adequate yearly progress" in a "statistically valid and reliable" manner that uniformly applies "the same high standards of academic achievement" to all of its schools. Id. § 6311(b)(2)(C)(i)-(ii).
Every local educational agency receiving funds under the Act is obligated to "use the State academic assessments and other indicators described in the State plan to review annually the progress of each school served under this part to determine whether the school is making adequate yearly progress." Id. § 6316(a)(1)(A). If a local educational agency determines that a school has failed to make "adequate yearly progress" for two consecutive years, the agency shall identify the school for "school improvement." Id. § 6316(b)(1)(A). If, for two years after being identified as requiring "school improvement," a school continues to fail to achieve "adequate yearly progress," the agency shall identify the school for "corrective action." Id. § 6316(b)(7)(C). If, after one full school year of "corrective action," the school continues to fail to achieve "adequate yearly progress," the agency shall identify the school for "restructuring." Id. § 6316(b)(8)(A)-(B).
B. The Act's Notification and Supplemental Educational Services Provisions
If a school is identified for "improvement," "corrective action," or "restructuring," the local educational agency shall promptly provide to a parent or parents . . . an explanation of what the identification means, . . . the reasons for the identification[,] . . . an explanation of what the school identified for school improvement is doing to address the problem of low achievement[,] . . . an explanation of what the local educational agency or State educational agency is doing to help the school address the achievement problem[, and] . . . an explanation of how the parents can become involved in addressing the academic issues that caused the school to be identified for school improvement.
Id. § 6316(b)(6)(A)-(E).*fn2 Importantly, this written explanation must also provide "an explanation of the parents' option to transfer their child to another public school . . . or to obtain supplemental educational services for the child." Id. § 6316(b)(6)(F); see also id. §§ (b)(1)(E), (b)(5)(A), (b)(7)(C)(i), (c)(10)(C)(vii). As for supplemental educational services (referred to alternatively as "SES"), the local educational agency serving such school shall . . . arrange for the provision of supplemental educational services to eligible children in the school from a provider with a demonstrated record of effectiveness, that is selected by the parents and approved for that purpose by the State educational agency in accordance with reasonable criteria.
A parent's right to obtain supplemental educational services for his or her child, however, is qualified in that children from low-income families and children with the lowest achievement levels are prioritized. The Act provides that the local educational agency is obligated to arrange for the provision of supplemental educational services to "eligible children," id. § 6316(e)(1), with "eligible child" defined to mean "a child from a low-income family, as determined by the local educational agency," id. § 6316(e)(12)(A). If the amount of funds allocated to a local educational agency to provide supplemental educational services is insufficient to provide those services to every eligible child, the local educational agency is directed to give priority to the lowest-achieving children. Id. § 6316(b)(10)(C). The State may, at the request of a local educational agency, waive the obligation of the local educational agency to provide supplemental educational services if the State determines that no eligible supplemental educational services provider is located close enough to the local educational agency, and the agency demonstrates that it cannot provide the services. Id. § 6316(e)(10)(A).
Students' parents are also entitled to be notified, on an annual basis and regardless of the status of the child's school, of their right to request and receive information concerning their children's teachers' qualifications. More specifically,
[a]t the beginning of each school year, a local educational agency that receives funds under this part shall notify the parents of each student attending any school receiving funds under this part that the parents may request, and the agency will provide the parents on request (and in a timely manner), information regarding the professional qualifications of the student's classroom teachers.
C. The Act's Enforcement Provision
The Act includes a "Penalties" section, which provides as follows: "If a State fails to meet any of the requirements of this section . . . then the Secretary may withhold funds for State administration under this part until the Secretary determines that the State has fulfilled those requirements." Id. § 6311(g)(2). The provision does not offer any remedy to parents in the event of noncompliance by a State or a local educational agency with any of the Act's terms.
II. Factual and Procedural Background
The complaint, filed on November 28, 2006, names as plaintiffs a class consisting of the Newark Parents Association, a non-profit organization that represents parents (or guardians) of children attending certain public elementary and middle schools in Newark, New Jersey. The named defendants are Newark Public Schools, which is the corporate body charged with managing Newark's eighty-one public schools and the local educational agency responsible for those schools; and individual administrators of the schools.
The complaint alleges that the number of Newark public schools "in Need of Improvement" under the Act, which the complaint defines as "Failing Schools" (J.A. 24), was thirty-seven for the 2003-2004 school year, forty-seven for the 2004-2005 school year, forty-eight for the 2005-2006 school year, and fifty-one for the 2006-2007 school year. (Id. at 26-27.) It further alleges that on September 14, 2005, the U.S. Department of Education's Office of the Inspector General issued a report of an audit of five New Jersey school districts, including Newark Public Schools. The audit found that during the 2004-2005 school year, defendants "failed to meet even the ...