NCLB = New Cause for Litigious Behavior?

Abstract

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 class 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 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 to make AYP (which eventually triggers the more serious action and designations), the schools must offer their students the options of supplemental services and transfer. For supplemental services, parents may choose from 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 public charter school, that [is in one of the three failing categories]. Each of these provisions has specified limitations and exceptions. For example, the supplemental services option applies only to children from low-income families, must be made available only so long as there are sufficient funds allocated for that purpose, and may be waived, upon district request, by the state. Similarly, the transfer option does apply if prohibited by state law, and priority is given to the lowest- achieving children from low-income families. In connection with both options, NCLB has notification requirement; the district must provide notice to parents if their school is in the school improvement, corrective action, or restructuring category and if their child is eligible for supplemental services or transfer. The Penalties section of the act specifies the procedures available in the event of noncompliance. The secretary of education may withhold funds from the state, conduct proceedings for the recovery of funds previously provided to the state, and issue cease and desist orders against the state. The plaintiffs in this case alleged that the New York City and Albany school districts did provide parents in eligible schools with adequate notice and timely implementation of the supplemental services and transfer provisions of the act. For example, they claimed that the two districts provided some of them with no notice and others with untimely information that was inaccurate and misleading. Similarly, they claimed that they experienced unreasonable difficulty in trying to obtain supplemental services and transfers for their eligible children. The defendants filed motion to dismiss the suit, arguing that NCLB does provide private right of (right to sue). In support of their motion, they pointed to the recent decision in Gonzaga University v. Doe, in which the Supreme Court held that the Family Educational Rights and Privacy Act does create personally enforceable rights and thus that individuals may bring civil rights suit to obtain compliance with its requirements. …