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3rd Circuit: Parents Can't Sue Under No Child Left Behind Act
The Legal Intelligencer
November 21, 2008
Parents have no right to sue under the federal No Child Left Behind Act because Congress designed the law only to regulate school districts and never included any "rights creating" language that would allow individuals to seek enforcement through lawsuits, the 3rd U.S. Circuit Court of Appeals has ruled.
The decision Thursday in Newark Parents Association v. Newark Public Schools marks the first time that a federal appellate court has refused to recognize a private cause of action under the NCLB.
But U.S. Circuit Judge Maryanne Trump Barry found that numerous federal district courts have addressed the issue and were unanimous in holding that the law "does not confer a right of action enforceable by individuals."
In the suit, a proposed class of parents and children complained that a high percentage of Newark’s schools have been labeled as failing or "in need of improvement," but that Newark school officials violated the law's requirements that parents be notified of: the fact that their children were enrolled in deficient schools; their right to transfer from failing schools to nonfailing schools; or their right to demand "supplemental educational services."
In the appeal, attorneys Scott M. Michelman of the American Civil Liberties Union, along with professor Emily B. Goldberg of Seton Hall Law School argued that U.S. District Judge Susan D. Wigenton of the District of New Jersey erred in dismissing the suit by failing to recognize that the parents were demanding only that the law's notice provisions be honored.
Barry disagreed, saying the lower court correctly found there was no implied cause of action. "Only the Secretary of Education can enforce a state's violation of the act," Barry wrote in an opinion joined by Judges Thomas L. Ambro and Kent A. Jordan.
"The overall structure of the act supports the conclusion that Congress did not intend to confer enforceable individual rights," Barry wrote. Attorney Adam S. Herman of the Newark Public Schools office of general counsel argued the appeal for the school district.
