Sonya RENEE; Candice Johnson, a minor, by Sonya Renee, her guardian ad litem; Maribel Heredia; Jose Aldana, a minor, by Maribel Heredia, his guardian ad litem; B. Doe, a minor, by N. Doe, her guardian ad litem; Mariel Rubio; Danielle Rubio, a minor, by Mariel Rubio, her guardian ad litem; Stephanie Rubio, a minor, by Mariel Rubio, her guardian ad litem; Guadalupe Gonzalez; Daisy Gonzalez, a minor, by Guadalupe Gonzalez, her guardian ad litem; Jazmine Johnson, a minor, by Deanna Bolden, her guardian ad litem; Adriana Ramirez, a minor, by Arcelia Trinidad Ramirez, her guardian ad litem; Jane Doe, a minor, by John Doe, her guardian ad litem; Californians for Justice Education Fund; California Association of Community Organizations for Reform Now, Plaintiffs-Appellants, v. Arne DUNCAN, in his official capacity; United States Department of Education, Defendants-Appellees.
No. 08-16661
United States Court of Appeals, Ninth Circuit
May 10, 2012
682 F.3d 1002
Before: D.W. NELSON, WILLIAM A. FLETCHER and RICHARD C. TALLMAN, Circuit Judges.
Argued and Submitted June 23, 2011.
Alisa B. Klein, United States Department of Justice, Civil Division, Washington, D.C., for the defendants-appellees.
Donald B. Verilli, Jr., Jenner & Block LLP, Washington, D.C., for Teach for America, et al., as amicus curiae.
ORDER
This court‘s opinion filed September 27, 2010, and reported at 623 F.3d 787, is supplemented with the attached.
The petition for rehearing, filed on October 12, 2010, is GRANTED.
OPINION
W. FLETCHER, Circuit Judge:
Appellants Sonya Renee, et al., appeal the district court‘s order granting summary judgment in favor of Appellees U.S. Department of Education and Arne Duncan, Secretary of Education1 (collectively, “the Secretary“). Appellants challenge a federal regulation permitting teachers who are participating in alternative-route teacher training programs, but who have not yet obtained full State certification, to be characterized as “highly qualified teachers” under the No Child Left Behind Act (“NCLB“). The district court granted summary judgment to the Secretary.
This case has a complicated history. We initially vacated the judgment of the district court for lack of Article III standing in a published opinion, with one panel member dissenting. Renee v. Duncan, 573 F.3d 903 (9th Cir.2009) (Renee I). We subsequently granted a petition for panel rehearing and withdrew our prior opinion. We reversed the district court on the merits in a new published opinion, now with a different panel member dissenting. Renee v. Duncan, 623 F.3d 787 (9th Cir.2010) (Renee II). After issuance of our opinion in Renee II, Congress changed the statutory provision upon which we had based that opinion. The new statutory provision, Section 163 of the Continuing Appropriations and Surface Transportation Extensions Act of 2011, became effective on December 22, 2010. Continuing Appropriations and Surface Transportation Extensions Act, Pub.L. No. 111-322, § 1, 124 Stat. 3518, 3521 (2010) (hereinafter “Section 163“). Section 163 expires at the end of the 2012-2013 academic year. Absent further congressional action, the statutory provision upon which we based our opinion in Renee II will again be in effect.
We conclude several things in this opinion. First, we conclude, as we concluded in Renee II, that before the passage of Section 163 the challenged regulation violated NCLB. Second, we conclude that after the passage of Section 163 and so long as it is in effect, the challenged regulation is consistent with NCLB. Third, we conclude that despite the passage of Section 163, this appeal is not moot. Fourth, we conclude that before the passage of Section 163, NCLB required the reports to Congress concerning “highly qualified teachers,” as that term was then defined in the statute. However, Appellants are not entitled to judicial enforcement of that reporting requirement. Finally, we conclude that Appellants are not entitled to attorney‘s fees based on their success in Renee II.
I. Background
A. No Child Left Behind Act and the Challenged Regulation
The No Child Left Behind Act was enacted in 2002. Its overarching goal 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.”
NCLB provides funds to states and schools under several of its provisions, one of which is central to this appeal. Specifically, Title I funds are used to supplement the educational needs of disadvantaged students.
A premise of NCLB is that good teachers—defined by Congress as “highly qualified” teachers—are crucial to educational success. NCLB requires that by the end of the 2005-06 academic year only “highly qualified” teachers should instruct core academic classes in school districts receiving Title I funding (the “100% requirement“).
NCLB requires that states and school districts develop and submit plans to meet the mandates of the statute.
NCLB also requires that states and school districts report annually on their progress toward meeting the 100% requirement.
If a “State educational agency” fails to submit to the Secretary a “plan” satisfying the requirements of NCLB,
NCLB contains a lengthy definition of “highly qualified teacher.” Of central concern in this litigation, before the passage of Section 163, “highly qualified” meant 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[.]
On December 2, 2002, the Secretary promulgated regulations providing a more detailed definition of the statutory term “highly qualified teacher.”
[A] “highly qualified teacher” ... meets the requirements in paragraph (a) [and other paragraphs not relevant to this appeal].
(a) In general.
(1) Except as provided in paragraph (a)(3) of this section [covering charter schools], a [“highly qualified“] teacher ... must—
(i) Have obtained full State certification as a teacher, which may include certification obtained through alternative routes to certification; or
(ii)(A) Have passed the State teacher licensing examination; and (B) Hold a license to teach in the State.
(2) A teacher meets the requirement in paragraph (a)(1) of this section if the teacher—
(i) Has fulfilled the State‘s certification and licensure requirements applicable to the years of experience the teacher possesses; or
(ii) Is participating in an alternative route to certification program under which—
(A) The teacher—
(1) Receives high-quality professional development ...;
(2) Participates in a program of intensive supervision ...;
(3) Assumes functions as a teacher only for a specified period of time not to exceed three years; and
(4) Demonstrates satisfactory progress toward full certification as prescribed by the State [.]
Neither NCLB nor the Secretary‘s regulation defines “alternative routes to certification.” The traditional path to a teaching credential generally involves obtaining a degree and taking education courses. The term “alternative routes to certification” generally refers to non-traditional training programs that are typically designed for people who already hold at least a bachelor‘s degree in a field other than education. These alternative programs are often designed to address teacher shortages in specific subjects or geographic areas. See, e.g.,
Some aspects of the traditional route to teacher certification—such as formal course work in education philosophy or pedagogy—are typically shortened, or sometimes waived altogether, in alternative-route programs. Several well-known and successful alternative-route programs, such as Teach for America and Troops to Teachers, provide some training to participants before they begin teaching in the classroom. Teach for America participants, for example, receive training during the summer before they enter the classroom. Support and training typically continue for the length of an alternative-route program. After successful completion of an alternative-route program, a teacher receives a credential similar or identical to a credential obtained after successful completion of a traditional teacher-training program.
In December 2010, after the issuance of Renee II, our second panel opinion in this case, Congress amended the Continuing Appropriations Act by adding Section 163. Section 163 provides:
(a) A “highly qualified teacher” includes a teacher who meets the requirements in
34 C.F.R. 200.56(a)(2)(ii) ....(b) This provision is effective on the date of enactment of this provision through the end of the 2012-13 academic year.
§ 1, 124 Stat. at 3521. Section 163 thus expands the statutory definition of “highly qualified teacher.” After the passage of Section 163, and for so long as Section 163 remains in effect, an alternative-route teacher who “demonstrates satisfactory progress toward full certification” is a “highly qualified teacher” within the meaning of NCLB.
B. California Law
Neither NCLB nor the Secretary‘s regulation defines the term “full State certification” contained in NCLB. The parties agree that NCLB gives the states considerable flexibility in establishing credentialing systems under which a state teaching permit or credential may constitute “full State certification” within the meaning of NCLB. The focus of this litigation is public school teachers in California. California law uses the terms “waiver,” “permit,” and “credential” to indicate various levels of teachers, and of certification, under state law. California has several levels of waivers, permits, and credentials, arranged in a rough hierarchy.
First, beginning at the bottom of the hierarchy, there are waivers. Individuals can teach pursuant to a waiver of the requirement for either a permit or credential. The Commission on Teacher Credentialing has authority to grant waivers in specified situations.
Second, there are emergency permits, including an Emergency 30-day Substitute Teaching Permit,
Third, there are Short-Term Staff Permits and Provisional Internship Permits. Unlike emergency permits, which largely cover substitute teachers, these permits allow a teacher to serve as a teacher of record in an assigned classroom.
Fifth, there is a “preliminary credential.” A preliminary credential may be obtained through either a traditional or an alternative-route teacher training program.
Finally, at the top of the hierarchy, there is a “clear credential.” See
In 2004, after the promulgation of the federal regulation challenged in this case, California promulgated regulations that mimicked 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.”
As described in greater detail above, the challenged federal regulation provides that a teacher may be considered fully certified, and thus “highly qualified,” within the meaning of NCLB, if the teacher “[i]s participating in an alternative route to certification program” and “[d]emonstrates satisfactory progress toward full certification,” or if the teacher “[h]as fulfilled the State‘s certification and licensure requirements applicable to the years of experience the teacher possesses.”
Before the passage of Section 163, Appellants did not object to characterizing an alternative-route teacher who had already obtained “full State certification” as a
C. Proceedings in the District Court
Appellants brought suit in federal district court, alleging that
II. Standard of Review
We review de novo questions of justiciability under Article III. Porter v. Jones, 319 F.3d 483, 489 (9th Cir.2003). We also review de novo a district court‘s grant of summary judgment. Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d 930, 941 n. 17 (9th Cir.2006). “Although we give deference to an agency‘s construction of a statutory provision it is charged with administering, we must reject those constructions that are contrary to clear congressional intent or that frustrate the policy Congress sought to implement.” Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1175 (9th Cir.2002) (internal citation omitted).
III. Discussion
A. Before Passage of Section 163
In this section of the opinion, we discuss Appellant‘s challenge to
1. Order of Discussion
In a case where Article III justiciability is in question, we normally begin our discussion with that question because Article III justiciability is a prerequisite to reaching the merits of the dispute. But we reverse the usual order of discussion because we think our discussion of the merits
2. The Merits
The challenged federal regulation seeks to interpret and to implement NCLB. The regulation was adopted by the responsible federal agency through notice and comment rulemaking. We therefore applied the analytical framework outlined in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). 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.” Id.; see also Pac. Nw. Generating Coop. v. Dep‘t of Energy, 580 F.3d 792, 806 (9th Cir.2009). If, however, we determine that Congress has not clearly spoken on the precise question, the second question is whether the agency‘s interpretation “is based on a permissible construction of the statute.” Chevron, 467 U.S. at 843. Because the intent of Congress, as expressed in NCLB before the passage of Section 163, was clear, we did not get beyond the first question.
NCLB provides that an alternative-route teacher is “highly qualified” once he or she has obtained “full State certification.” Before the passage of Section 163, the statutory text provided, 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)[.]
The federal regulation, quoted at length above, begins by essentially repeating the pre-Section 163 statutory language. The regulation provides that a “highly qualified teacher” “must ... have obtained full State certification as a teacher, which may include certification obtained through alternative routes to certification.”
In his pre-Section 163 brief to us, the Secretary pointed out that the meaning of “full State certification” in NCLB was ambiguous because it depends to a substantial degree on state law. We agreed that the meaning of “full State certification” in NCLB is ambiguous because it substantially depends on state law. But this ambiguity was irrelevant.
Before the passage of Section 163, the “precise question at issue,” Chevron, 467 U.S. at 842, was not the meaning of “full State certification” as used in NCLB. Rather, the “precise ques
We therefore held, before the passage of Section 163, that
3. Article III Standing
The Secretary had not argued in the district court that Appellants lacked standing under Article III. He made that argument for the first time on appeal. Lack of Article III standing is a non-waivable jurisdictional defect that may be raised at any time, even on appeal after failing to raise it in the district court. See Laub v. U.S. Dep‘t of Interior, 342 F.3d 1080, 1085 (9th Cir.2003). In Renee II, we concluded that Appellants had Article III standing.
“[T]he irreducible constitutional minimum of [Article III] standing contains three elements.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); see also DBSI/TRI IV Ltd. P‘ship v. United States, 465 F.3d 1031, 1038 (9th Cir.2006). “First, the plaintiff must have suffered an ‘injury in fact’ that is ‘concrete and particularized’ and ‘actual or imminent.‘” Lujan, 504 U.S. at 560. “Second, there must be a causal connection between the injury and the conduct complained of,” such that the injury is fairly traceable to the action challenged. Id. “Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. at 561 (internal quotations omitted). We considered these three requirements in turn.
a. Injury in Fact
Appellants are California public school students, their parents, and two non-profit organizations, Californians for Justice (“CFJ“) and California Association of Community Organizations for Reform Now (“California ACORN“). The named students, along with student members of the two organizations, attend California public schools at which significant numbers of intern credential holders serve as teachers. As a result, these students are being taught by interns, have been taught by interns, or are substantially likely to be taught by interns.
Appellants presented evidence in the district court that a disproportionate number of interns teach in California public schools that serve minority and low-income students. For example, forty-one percent of interns in California teach in the twenty-five percent of schools with the highest concentrations of minority students. In contrast, two percent of interns in California teach in the ten percent of schools with the lowest concentration of minority students. Interns are similarly concentrated
We concluded that Appellants established injury in fact. In adopting NCLB, Congress decided, before the passage of Section 163, that teachers with “full State certification” were, in the aggregate, better teachers than those without such certification. We recognized that it is debatable whether Congress was correct in deciding that teachers with “full State certification” are better than teachers without such certification. This is particularly debatable if intern teachers enrolled in programs such as Teach for America do not have “full State certification.” But that was not for us to decide. We were bound to accept Congress’ pre-Section 163 determination that students taught by a disproportionate number of teachers without “full State certification” had been injured in fact.
b. Causation
We also concluded that there was a causal connection between the promulgation of the federal regulation challenged in this case and the later promulgation of the California regulations. The parties do not dispute that the California regulations were adopted as a result of the challenged federal regulation. To the degree that the federal regulation, and the mimicking California regulations, 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 was a causal connection between the challenged regulation and the injury of which Appellants complain.
c. Redressability
Finally, we concluded that Appellants’ injury was likely to be redressed by invalidation of the federal regulation. “Plaintiffs need not demonstrate that there is a ‘guarantee’ that their injuries will be redressed by a favorable decision.” Graham v. Fed. Emergency Mgmt. Agency, 149 F.3d 997, 1003 (9th Cir.1998). The plaintiffs’ burden is “relatively modest.” Bennett v. Spear, 520 U.S. 154, 171 (1997). Plaintiffs need only show that there would be a “change in a legal status,” and that a “practical consequence of that change would amount to a significant increase in the likelihood that the plaintiff would obtain relief that directly redresses the injury suffered.” Utah v. Evans, 536 U.S. 452, 464 (2002). If an agency has misinterpreted the law, there is Article III standing “even though the agency ... might later, in the exercise of its lawful discretion, reach the same result for a different reason.” Fed. Election Comm‘n v. Akins, 524 U.S. 11, 25 (1998).
The challenged federal regulation permits a state to treat intern teachers as “highly qualified” under NCLB even if those teachers are not fully certified under state law but are only “demonstrat[ing] satisfactory progress toward full certification.” The 2004 California regulations, mimicking the federal regulation, provide that teachers with “full State certification” under California law, as well as teachers who are currently enrolled in an intern program, are “highly qualified” within the meaning of NCLB. But the California regulations do not change the definition of “full State certification” under California law. Unless intern teachers have “full State certification” under some California law other than these regulations, such teachers were not “highly qualified” for
The Secretary made two arguments against this conclusion. First, he argued that intern teachers had “full State certification” under California law. The Secretary made the somewhat surprising argument that because California is not a party to this suit we should not interpret California law ourselves, but rather should defer to the Secretary‘s interpretation. As the Secretary surely knew, we routinely interpret California law in cases in which California is not a party. And while we defer to the Secretary‘s interpretation of federal law under Chevron, we owe no deference to his interpretation of state law.
It was reasonably clear that intern teachers did not have “full State certification” under California law. California‘s Education Code distinguishes between holders of intern credentials and holders of preliminary and clear credentials in several ways. For example,
The 2004 mimicking California regulations similarly distinguish between intern teachers and fully credentialed teachers. Under the California regulation applicable to middle and secondary schools, a teacher is deemed to “meet the requirements of NCLB” under two circumstances. One is that the teacher be “currently enrolled in an approved intern program.” The other is that the teacher have “a full credential.”
Second, the Secretary argued that if the federal regulation is held invalid, California would almost certainly change its credentialing laws to provide that the holder of an intern credential is fully certified under California law. We disagreed. As just discussed, California‘s Education Code indicates that holders of “preliminary” and “clear” credentials have “full certification” under state law, but that interns do not. After the passage of NCLB, California made no attempt to change its law to provide that teachers with intern credentials are fully credentialed under California law. Both before and after the promulgation of the challenged federal regulation, California characterized intern teachers as not having full credentials. The Secretary pointed to no evidence indicating that, in the event the federal regulation were held invalid, California would change its credentialing law in a manner it had thus far not seen fit to do. Nor, indeed, has the Secretary attempted to argue that, in the wake of our opinion in Renee II,
Finally, our dissenting colleague made an argument not made by the Secretary. He argued that even if the federal regulation were struck down, and even if intern teachers in California were not “highly qualified” within the meaning of NCLB, there is nothing in NCLB that empowers the Secretary to withhold funds as a means of compelling a state to adopt a specific system of teacher credentialing. In our view, that was not the issue. The issue, rather, was whether the Secretary has the authority to withhold funds when a State fails to take steps to ensure that students in minority and low-income schools are not taught disproportionately by teachers without “full State certification” as the state defined “full certification.”
It is undisputed that NCLB gives the State great flexibility in deciding which teachers are fully certified under state law, and that the Secretary cannot compel a State to adopt any specific credentialing system. That is, a state is free to define “full certification” in almost any way it chooses. But having defined full certification under state law, a state is required to take steps to ensure that fully certified teachers are proportionately represented in the teaching staffs of minority and low-income schools. It is undisputed that the Secretary has authority to withhold funds if a state does not take steps to comply with NCLB. See
The Secretary is not required to withhold funds if a state fails to take steps to comply with NCLB. The statute provides that he “may” do so rather than that he “must” do so.
B. After Passage of Section 163
1. Effect of Section 163
Section 163 has temporarily modified NCLB. It provides that the term “highly qualified teacher” in NCLB includes a teacher who meets the requirements of
However, by its own terms, Section 163 remains in effect only through the end of the 2012-13 school year. If Congress takes no further action, the pre-Section 163 version of NCLB will again be the law. In that event,
Neither side has contended that Congress‘s enactment of Section 163 has mooted the appeal. However, we have an independent obligation to ensure that a case is not moot within the meaning of Article III. See Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092, 1098 (9th Cir.2000). Article III mandates that “there be a live case or controversy” when a federal court decides a dispute. Burke v. Barnes, 479 U.S. 361, 363 (1987). A case can be moot when a challenged statute or regulation “is repealed, expires, or is amended to remove the challenged language.” Log Cabin Republicans v. United States, 658 F.3d 1162, 1166 (9th Cir.2011) (per curiam).
We conclude that the passage of Section 163 does not moot this appeal. Section 163 is, by its express terms, temporary. It took effect in December 2010, on the date of enactment, and it will expire after the 2012-13 academic year. Absent further congressional action,
3. Compliance with pre-Section 163 Reporting Requirements
NCLB requires the Secretary to file an annual report to Congress in which the Secretary presents national and state-level data on compliance with NCLB goals. See
In Guerrero v. Clinton, 157 F.3d 1190 (9th Cir.1998), we held that a federal court could not redress an injury based on an allegedly inadequate report that an agency is obligated to file with Congress. Id. at 1194. At issue in Guerrero was a requirement that the President “report annually” to Congress on the impact of a compact with federal territories and the State of Hawaii. Id. at 1191. We described the report as “purely informational.” Id. at 1195. We concluded,
In sum, no legal consequences flow from [the] report and it has no “determinative or coercive effect upon the action of someone else” that in turn produced the [plaintiffs‘] injury.... By the same token, the report is not agency action of the sort that is typically subject to judicial review. Because it triggers no legal
consequences and determines no rights or obligations, no check on the substance of the report is necessary. Having requested the report, Congress, not the judiciary, is in the best position to decide whether it‘s gotten what it wants.
Id. at 1195 (internal citations omitted) (quoting Bennett v. Spear, 520 U.S. 154, 178 (1997)).
As in Guerrero, the reporting requirement of NCLB that Appellants seek to enforce is “purely informational.” The provision at issue,
4. Attorney‘s Fees
Appellants seek attorney‘s fees under the Equal Access to Justice Act (EAJA). That statute provides: “[A] court shall award to a prevailing party other than the United States fees and other expenses ... incurred by that party in any civil action ... brought by or against the United States ... unless the court finds that the position of the United States was substantially justified.”
We have interpreted the term “substantial justification” as “describ[ing] a position that has a reasonable basis both in law and fact.” Timms v. United States, 742 F.2d 489, 492 (9th Cir.1984). That the Secretary did not prevail on the positions he has taken does not invoke a presumption that his position was not substantially justified. Id. Assuming without deciding that Appellants qualify as a “prevailing party” under the EAJA, we conclude that the Secretary‘s position was substantially justified.
We have issued two previous opinions in this case. In the first opinion, a split panel of this court agreed with the Secretary‘s position that Appellants lack standing. Renee I, 573 F.3d at 905. We reversed our position on the standing issue, Renee II, 623 F.3d at 800, but one of us continued to agree with the Secretary‘s position on standing, id. (Tallman, J., dissenting). On the merits, the district judge had agreed with the Secretary‘s position, holding that the challenged regulation was consistent with the definition of “highly qualified teachers” contained in NCLB. Given the substantial disagreement among federal judges on the Secretary‘s contentions, Appellants face the daunting task of arguing that the Secretary‘s position lacked a reasonable basis in law and fact.
NCLB affords the Secretary substantial discretion in determining certain matters of policy. The Secretary contended throughout this litigation that the term “highly qualified teacher” is sufficiently ambiguous so as to encompass alternative route interns defined by
We therefore deny Appellants’ motion for attorneys’ fees under the EAJA.
Conclusion
For the foregoing reasons, we reaffirm our decision in Renee II that
AFFIRMED.
TALLMAN, Circuit Judge, dissenting in part and concurring in part:
I concur in the judgment and parts III.B.1-2—that the appeal is not moot—and III.B.4—that appellants are not entitled to attorney‘s fees. I continue to believe that the appellants lack standing to bring this suit, Renee II, 623 F.3d at 800-807, and would dismiss this appeal for the reasons I previously explained.
I agree that if we were to reach the merits, the passage of
Any discussion about the pre