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ERIC Number: EJ700591
Record Type: Journal
Publication Date: 2004-Feb-1
Pages: N/A
Abstractor: ERIC
Reference Count: N/A
ISSN: ISSN-0031-7217
Courtside: NCLB=New Cause for Litigious Behavior
Zirkel, Perry A.
Phi Delta Kappan, v85 n6 p479 Feb 2004
In September 2002, the children of parents Latasha Gibbs, Carmella Glass, Laverne Jones, Charlene Mingo, Deborah Powell-Jasper, Eunice Staton, and Keikola Valentine were attending New York City public schools that the state education department identified as needing improvement -- in other words, failing -- under the No Child Left Behind (NCLB) Act. At the same time, the children of parents Bridie Kite, Michelle Tucker, and Charlene Wilson were attending public schools in Albany that the state education department designated as failing. On 27 January 2003, these two groups of parents, along with the Association of Community Organizations for Reform Now, filed a class action federal civil rights suit in New York against the two school districts and their superintendents for alleged violations of NCLB and the state constitution. They sought a preliminary injunction requiring the defendants to comply immediately with the supplemental educational services and transfer provisions of NCLB and preventing the defendants from using NCLB funds for any purpose other than compliance with the act. Under the act, schools that fail to achieve their state plan's standard for adequate yearly progress (AYP) for two consecutive years are designated for "improvement." Once they receive this designation and as long as they continue not to make AYP (which eventually triggers the more serious "corrective action" and "restructuring" designations), the schools must offer their students the options of supplemental services and transfer. For supplemental services, parents may choose from a list of state-approved providers that have "a demonstrated record of effectiveness." For transfer, the school must, "not later than the first day of the school year following such identification, provide all students enrolled in the school with the option to transfer to another public school served by the [district], which may include a public charter school, that [is not in one of the three failing categories]." The plaintiffs in this case alleged that the New York City and Albany school districts did not provide parents in eligible schools with adequate notice and timely implementation of the supplemental services and transfer provisions of the act. The defendants filed a motion to dismiss the suit, arguing that NCLB does not provide a private right of action (right to sue). On 20 June 2003, the federal district court granted the dismissal motion, thus denying as moot the plaintiffs' suit for a preliminary injunction. The court held that "Congress did not intend to create individually enforceable rights with respect to the notice, transfer or [supplemental educational services] provisions contained in NCLBA." This case is not necessarily over; the plaintiffs are preparing an appeal to the Second Circuit. The odds, however, clearly favor the defendants. For this reason and others, NCLB has set off a firestorm of opposition based on a wide range of viewpoints and agendas, including philosophical aversion to federal intervention, pedagogical objections to standardized testing, administrative criticism of insufficient funding, and individual pleas on behalf of some segments of the special education community. The American way to channel such hostility is to sue. There is at least one more pending suit under NCLB, this one concerning California's allegedly inadequate implementation of the act's "highly qualified teacher" requirements. Our New York case, following the Supreme Court's limiting standards in Gonzaga, seems to suggest that such litigation faces a dead end.
Phi Delta Kappa International, Inc., 408 N. Union St., P.O. Box 789, Bloomington, IN 47402-0789. Web site:
Publication Type: Journal Articles; Reports - Descriptive
Education Level: N/A
Audience: N/A
Language: English
Sponsor: N/A
Authoring Institution: N/A
Identifiers - Location: New York
Identifiers - Laws, Policies, & Programs: No Child Left Behind Act 2001