Renee v. Duncan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

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, No. 08-16661

her guardian ad litem; JAZMINE D.C. No.

JOHNSON, a minor, by Deanna

Bolden, her guardian ad litem;

 3:07-CV-04299-PJH

ORDER AND

ADRIANA RAMIREZ, a minor, by

OPINION

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.



16317

16318 RENEE v. DUNCAN

Appeal from the United States District Court

for the Northern District of California

Phyllis J. Hamilton, District Judge, Presiding

Argued and Submitted

February 11, 2009—Stanford, California

Filed September 27, 2010

Before: Dorothy W. Nelson, William A. Fletcher and

Richard C. Tallman, Circuit Judges.

Opinion by Judge William A. Fletcher;

Dissent by Judge Tallman

RENEE v. DUNCAN 16321

COUNSEL

John T. Affeldt and Tara Kini, Public Advocates, Inc., San

Francisco, California, for the plaintiffs-appellants.

Alisa B. Klein, United States Department of Justice, Civil

Division, Washington, D.C., for the defendant-appellee.

Lisa A. Davis, Wilson Sonsini Goodrich & Rosati P.C., Palo

Alto, California, for The National Coalition of ESEA Title I

Parents, Inc., et al., as amicus curiae.

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 July 23, 2009, and reported at

573 F.3d 903, is withdrawn and is replaced by the attached

Opinion and Dissent.

16322 RENEE v. DUNCAN

The full court has been advised of the petition for rehearing

en banc and no judge of the court has requested a vote on

whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing en banc, filed August 25, 2009,

is DENIED.

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 Educa-

tion1 (collectively, “the Secretary”). Appellants challenge a

federal regulation permitting teachers who are participating in

alternative-route teacher training programs, but have not yet

obtained full State certification, to be characterized as “highly

qualified teachers” under the No Child Left Behind Act. The

district court granted summary judgment to the Secretary. We

reverse and remand.

I. Background

A. No Child Left Behind Act and the Challenged

Regulation

The No Child Left Behind Act (“NCLB”) 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.” 20 U.S.C. § 6301. NCLB seeks to

1

Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Secretary

Arne Duncan is automatically substituted for former Secretary of Educa-

tion Margaret Spellings as Appellee in this case.

RENEE v. DUNCAN 16323

close the “achievement gap between high- and low-

performing children, especially the achievement gaps between

minority and nonminority students, and between disadvan-

taged children and their more advantaged peers.” Id.

§ 6301(3).

Each state is responsible for ensuring compliance by its

local school districts. Id. §§ 1232c, 7844(a). NCLB provides

funds to states and schools under several sections, only one of

which is central to this appeal. Specifically, Title I funds are

used to supplement the educational needs of disadvantaged

students. Id. §§ 6301 et seq. The Secretary has the authority

to enforce NCLB. He may withhold funds or take other

enforcement action if a state fails to comply substantially with

NCLB’s requirements. Id. § 1234c (“Whenever the Secretary

has reason to believe that any recipient of funds under any

applicable program is failing to comply substantially with any

requirement of law applicable to such funds, the Secretary

may . . . withhold further payments under that program as

authorized by section 1234d of this title[.]”).

A premise of NCLB is that good teachers — defined by

Congress as “highly qualified” teachers — are crucial to edu-

cational success. NCLB provides 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”). Id. § 6319(a)(2).

“Core academic subjects” are “English, reading or language

arts, mathematics, science, foreign languages, civics and gov-

ernment, economics, arts, history, and geography.” Id.

§ 7801(11); 34 C.F.R. § 200.55(c).

NCLB requires that states and school districts develop and

submit plans to meet the mandates of the statute. 20 U.S.C.

§§ 6311(a)(1), 6311(b)(8)(C), 6319(a)(2) (state plans); id.

§§ 6312(b)(1)(N), 6312(c)(1)(I), 6319(a)(3) (district plans).

To receive funds under Title I of the statute, NCLB requires

states to identify steps they will take to ensure that “poor and

16324 RENEE v. DUNCAN

minority children are not taught at higher rates than other chil-

dren by inexperienced, unqualified, or out-of-field teachers.”

Id. § 6311(b)(8)(C).

NCLB also requires that states and school districts report

annually on their progress toward meeting the 100% require-

ment. Id. §§ 6311(h)(1)(C)(viii), 6311(h)(2), 6319(b)(1).

States must provide this information to the Secretary, id.

§§ 6311(h)(4)(G), 6319(b)(1)(B), who must report nationwide

statistics on “highly qualified teachers” to Congress, id.

§ 6311(h)(4)-(5). Schools receiving Title I funds must inform

a parent when his or her child is taught for four or more

weeks by a teacher who is not “highly qualified.” Id.

§ 6311(h)(6)(B)(ii).

If a “State educational agency” fails to submit to the Secre-

tary a “plan” satisfying the requirements of NCLB, id.

§ 6311(a)(1), the Secretary may withhold federal funds until

the state has done so. Id. § 6311(g)(2) (“If a state fails to meet

any of the requirements of this section, other than the require-

ments described in paragraph (1) [not at issue here], then the

Secretary may withhold funds for State administration under

this part until the Secretary determines that the State has ful-

filled those requirements.”); id. § 6311(b)(8)(C) (“Each State

plan shall describe . . . the specific steps the State educational

agency will take to ensure that both schoolwide programs and

targeted assistance schools provide instruction by highly qual-

ified instructional staff as required by sections 6314(b)(1)(C)

and 6315(c)(1)(E).”).

NCLB contains a lengthy definition of “highly qualified

teacher.” Of central concern in this litigation, “highly quali-

fied” means 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

RENEE v. DUNCAN 16325

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[.]

20 U.S.C. § 7801(23)(A)(i) (emphasis added).

On December 2, 2002, the Secretary promulgated regula-

tions providing a more detailed definition of the statutory

term “highly qualified teacher.” 34 C.F.R. § 200.56. Section

200.56 provides, in pertinent part:

[A] “highly qualified teacher” . . . meets the require-

ments in paragraph (a) [and other paragraphs not rel-

evant 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 certifica-

tion as a teacher, which may include

certification obtained through alterna-

tive 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 certifica-

tion and licensure requirements appli-

16326 RENEE v. DUNCAN

cable 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 profes-

sional 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[.]

Id. (emphasis added).

Neither NCLB nor the Secretary’s regulation defines “alter-

native routes to certification.” The traditional path to a teach-

ing credential generally involves obtaining a degree and

taking education courses. The term “alternative routes to cer-

tification” generally refers to non-traditional training pro-

grams 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., Cal. Educ. Code § 44382 (“Alternative certification pro-

grams shall address geographic and subject matter shortage

areas, and shall be targeted toward people with work experi-

RENEE v. DUNCAN 16327

ence and others who already have a bachelor’s degree in the

field in which they plan to teach.”).

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 iden-

tical to a credential obtained after successful completion of a

traditional teacher-training program.

Appellants do not object to characterizing an alternative-

route teacher who has already obtained “full State certifica-

tion” as a “highly qualified teacher.” See 20 U.S.C.

§ 7801(23)(A)(i) (“highly qualified teacher” includes an

alternative-route teacher who “has obtained full State certifi-

cation as a teacher”) (emphasis added); 34 C.F.R.

§ 200.56(a)(1)(i) (“highly qualified teachers” include

alternative-route teachers who “have obtained full State certi-

fication as a teacher”) (emphasis added). However, Appel-

lants do object to characterizing as a “highly qualified

teacher” an alternative-route teacher who has not yet obtained

full state certification, but who merely “[d]emonstrates satis-

factory progress toward full certification[.]” 34 C.F.R.

§ 200.56(a)(2)(ii)(A)(4) (emphasis added). Appellants con-

tend that such teachers are not “highly qualified” within the

meaning of § 7801(23).

B. California Law

Neither NCLB nor the Secretary’s regulation defines the

term “full State certification” contained in NCLB. The parties

16328 RENEE v. DUNCAN

agree that NCLB gives the states considerable flexibility in

establishing credentialing systems under which a state teach-

ing permit or credential may constitute “full State certifica-

tion” within the meaning of NCLB. California law uses the

terms “waiver,” “permit,” and “credential” to indicate various

levels of teachers, and of certification, under state law. Cali-

fornia 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. Cal. Educ. Code § 44225(m).

Second, there are emergency permits, including an Emer-

gency 30-day Substitute Teaching Permit, Cal. Code Regs. tit.

5, § 80025, and an Emergency Career Substitute Teaching

Permit, id. § 80025.1. Emergency permits are valid for no

more than one year and are restricted to the district that

requested the issuance of the emergency permit. Id.

§ 80023.1. Teachers can renew emergency permits, but

renewal ordinarily requires, among other things, demonstrated

progress toward a non-emergency credential. Id.

§ 80026.6(a)(6).

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. Id.

§§ 80021(e), 80021.1(e).

Fourth, there is an “intern credential.” This is the first certi-

fication in the hierarchy that California characterizes as a

“credential” rather than a “permit.” An intern credential

holder is participating in, but has not yet completed, an

alternative-route teacher training program. See Cal. Educ.

Code §§ 44830.3, 44259(b)(3)(C). Like Short-Term and Pro-

RENEE v. DUNCAN 16329

visional Internship permits, an intern credential allows the

holder to serve as a teacher of record. Id. §§ 44325(a), 44326,

44830.3(a). California requires internship programs to provide

“preservice training . . . tailored to the grade level or class to

be taught.” Id. § 44830.3(b)(3).

Fifth, there is a “preliminary credential.” A preliminary cre-

dential may be obtained through either a traditional or an

alternative-route teacher training program. Id. § 44259(b)(3).

A preliminary credential is generally valid for five years. Id.

§ 44251(a)(2), (b)(2). The minimum requirements for a pre-

liminary credential include a bachelor’s degree, a passing

score on the state’s “basic skills examination,” satisfactory

completion of an accredited “program of professional prepa-

ration” (including traditional and alternative-route programs),

and a passing score on one or more subject matter examina-

tions or completion of an approved subject matter program.

Id. § 44259(b).

Finally, at the top of the hierarchy, there is a “clear creden-

tial.” See id. § 44259(c). To obtain a clear credential, an indi-

vidual must have held a preliminary credential, have

completed a “program of beginning teacher induction,” and

have gained experience in specified areas. Id. § 44259(c)(2),

(4). Clear credentials are generally valid for life. See id.

§ 44251(a)(3), (b)(3).

In 2004, after the promulgation of the federal regulation

challenged in this case, California promulgated regulations

that piggybacked on the federal regulation. The California

regulation applicable to middle and secondary schools pro-

vides 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.” Cal. Code

Regs. tit. 5, § 6110(2) (emphasis added). The regulation appli-

cable to elementary schools provides the same thing, but

omits the word “full” before “credential.” Id. § 6101(2) (“[i]s

currently enrolled in an approved intern program for less than

16330 RENEE v. DUNCAN

three years or has a credential”) (emphasis added). By their

use of the word “or,” these regulations indicate that an intern

teacher does not have a “(full) credential.” That is, the Cali-

fornia regulations provide the qualification criterion in the

alternative: A teacher “meets NCLB requirements” if the

teacher is “enrolled in an approved intern program” or if the

teacher “has a (full) credential.”

The 2004 California regulations mimic the federal regula-

tion challenged in this case. As described in greater detail

above, the 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 certifica-

tion,” or if the teacher “[h]as fulfilled the State’s certification

and licensure requirements applicable to the years of experi-

ence the teacher possesses.” 34 C.F.R. § 200.56(a)(2). Mim-

icking the federal regulation, the California regulations

provide that a teacher “meets NCLB requirements” if that

teacher is “currently enrolled in an approved intern program

for less than three years” or “has a (full) credential.” Cal.

Code Regs. tit. 5, §§ 6110(2), 6101(2).

Appellants contend that the challenged federal regulation,

upon which the 2004 California regulations are based, allows

a disproportionate number of interns to teach in minority and

low-income schools in California, in violation of NCLB. Spe-

cifically, they contend that intern teachers in California do not

have “full State certification” and are thus not “highly quali-

fied teachers” within the meaning of NCLB. They contend

that if the federal regulation is declared invalid, California

will not be allowed to treat intern teachers as highly qualified

teachers for purposes of NCLB. The result, Appellants con-

tend, will be that California is likely to take steps to ensure

that fewer intern teachers, and more teachers with “prelimi-

nary” and “clear” credentials, teach in minority and low-

income public schools in California.

RENEE v. DUNCAN 16331

II. Prior Proceedings

Appellants brought suit in federal district court, alleging

that 34 C.F.R. § 200.56(a) is invalid to the extent that it char-

acterizes an alternative-route teacher who is still in the pro-

cess of obtaining “full State certification” as a “highly

qualified teacher.” The challenged portion of the regulation is

§ 200.56(a)(2)(ii). Both parties moved for summary judgment.

The district court granted summary judgment to the Secretary,

upholding § 200.56(a)(2)(ii). Appellants timely appealed.

We have jurisdiction pursuant to 28 U.S.C. § 1291.

III. 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 judg-

ment. 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 pro-

vision 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.” Bio-

diversity Legal Found. v. Badgley, 309 F.3d 1166, 1175 (9th

Cir. 2002) (internal citation omitted).

IV. Discussion

A. Order of Analysis

The Secretary argues that Appellants do not have Article III

standing. In a case where Article III justiciability is at issue,

we usually begin our discussion with that question because

Article III justiciability is a prerequisite to reaching the merits

of the dispute. We conclude that Appellants have Article III

standing, as discussed below. But we reverse the usual order

of discussion because we think our discussion of the merits

16332 RENEE v. DUNCAN

will help the reader understand our discussion of Article III

standing.

B. The Merits

The challenged federal regulation interprets a federal stat-

ute. The regulation was adopted by the responsible federal

agency through notice and comment rulemaking. We there-

fore apply the analytical framework outlined in Chevron,

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837 (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 unam-

biguously expressed intent of Congress.” Id. at 842-843; see

also Pac. Nw. Generating Coop. v. Dep’t of Energy, 580 F.3d

792, 806 (9th Cir. 2009). If, however, we determine that Con-

gress has not clearly spoken on the precise question, the sec-

ond 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

the NCLB, is clear, we do not get beyond the first question.

NCLB provides that an alternative-route teacher is “highly

qualified” once he or she has obtained “full State certifica-

tion.” The statutory text provides, 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 cer-

tification as a teacher (including certifi-

cation obtained through alternative routes

to certification)[.]

RENEE v. DUNCAN 16333

20 U.S.C. § 7801(23) (emphasis added). NCLB does not

define “full State certification,” but it makes clear — what-

ever “full State certification” means — that such certification

must have been obtained before a teacher can be characterized

as “highly qualified.”

The federal regulation, quoted at length above, begins by

essentially repeating the statutory language. It 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.” 34 C.F.R.

§ 200.56(a)(1)(i) (emphasis added). It then goes on, however,

to provide that an alternative-route teacher is “highly quali-

fied” even if he or she has not obtained “full State certifica-

tion.” It provides that a teacher “meets the requirements in

paragraph (a)(1)” (which include the requirement that “full

State certification” have already been obtained), if that

teacher “[i]s participating in an alternative route to certifica-

tion program” and “[d]emonstrates satisfactory progress

toward full certification as prescribed by the State.” Id.

§ 200.56(a)(2)(ii) (emphasis added).

The Secretary points out that the meaning of “full State cer-

tification” in NCLB is ambiguous because it depends to a sub-

stantial degree on state law. We agree that the meaning of

“full State certification” in NCLB is ambiguous and that it

substantially depends on state law. But this ambiguity is irrel-

evant.

[1] The “precise question at issue,” Chevron, 467 U.S. at

842, is not the meaning of “full State certification” as used in

NCLB. Rather, the “precise question at issue” is the differ-

ence between the meaning of “has obtained” full State certifi-

cation in the statute, 20 U.S.C. § 7801(23), and the meaning

of “demonstrates satisfactory progress toward” full State cer-

tification in the regulation, 34 C.F.R. § 200.56(a)(2)(ii). The

difference between having obtained something and merely

making satisfactory progress toward that thing is patent. We

16334 RENEE v. DUNCAN

conclude that the Secretary’s regulation impermissibly

expands the definition of “highly qualified teacher” contained

in 20 U.S.C. § 7801(23) by including in that definition an

alternative-route teacher who merely “demonstrates satisfac-

tory progress toward” the requisite “full State certification.”

[2] We therefore hold that 34 C.F.R. § 200.56(a)(2)(ii) is

invalid because it is inconsistent with the “unambiguously

expressed intent of Congress.” Chevron, 467 U.S. at 843. We

emphasize that our holding is based on the difference between

the meaning of “has obtained” in 20 U.S.C. § 7801(23) and

the meaning of “demonstrat[es] satisfactory progress toward”

in § 200.56(a)(2)(ii). Our holding is not based on the meaning

of “full State certification” in § 7801(23).

C. Article III Standing

The Secretary did not argue in the district court that Appel-

lants lack standing under Article III. He makes 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). For the reasons that follow, we conclude that

Appellants have Article III standing.

[3] “[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 immi-

nent.” 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 chal-

lenged. Id. “Third, it must be likely, as opposed to merely

speculative, that the injury will be redressed by a favorable

RENEE v. DUNCAN 16335

decision.” Id. at 561 (internal quotations omitted). We con-

sider these three requirements in turn.

1. Injury in Fact

Appellants are California public school students, their par-

ents, and two non-profit organizations, Californians for Jus-

tice (“CFJ”) and California Association of Community

Organizations for Reform Now (“California ACORN”). The

named students, along with student members of the two orga-

nizations, 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 concentra-

tions of minority students. In contrast, two percent of interns

in California teach in the ten percent of schools with the low-

est concentration of minority students. Interns are similarly

concentrated in schools serving low-income communities,

with sixty-two percent of interns teaching in the poorest half

of California’s schools. This disproportionate distribution of

interns, Appellants contend, has resulted in a poorer quality

education than Appellants would otherwise have received.

[4] We conclude that Appellants have established injury in

fact. In adopting NCLB, Congress decided that teachers with

“full State certification” are, in the aggregate, better teachers

than those without such certification. We recognize that it is

debatable whether Congress was correct in deciding that

teachers with “full State certification” are in fact better than

teachers without such certification. This is particularly debat-

able if intern teachers enrolled in programs such as Teach for

16336 RENEE v. DUNCAN

America do not have “full State certification.” But that is not

for us to decide. We are bound to accept Congress’ determi-

nation that students taught by a disproportionate number of

teachers without “full State certification” have been injured in

fact.

2. Causation

[5] We also conclude that there is a causal connection

between the promulgation of the federal regulation challenged

in this case and the later promulgation of the California regu-

lations. The parties do not dispute that the California regula-

tions were adopted as a result of the challenged federal

regulation. To the degree that the federal regulation, and the

piggybacking California regulations, have 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 is a causal connection

between the challenged regulation and the injury of which

Appellants complain.

3. Redressability

Finally, we conclude that Appellants’ injury is likely to be

redressed by the invalidation of the federal regulation. “Plain-

tiffs 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.” Ben-

nett v. Spear, 520 U.S. 154, 171 (1997). They need only show

that there would be a “change in legal status,” and that a

“practical consequence of that change would amount to a sig-

nificant 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 misinter-

preted the law, there is Article III standing “even though the

agency . . . might later, in the exercise of its lawful discretion,

RENEE v. DUNCAN 16337

reach the same result for a different reason.” Fed. Election

Comm’n v. Akins, 524 U.S. 11, 25 (1998).

[6] 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 certifi-

cation.” The 2004 California regulations, piggybacking on the

federal regulation, provide that fully credentialed teachers

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 fully credentialed under California

law. Thus, unless intern teachers have “full State certifica-

tion” under some other California law, such teachers are not

“highly qualified” for purposes of NCLB in the absence of the

challenged federal regulation. If the federal regulation is

invalidated, in other words, California is very likely out of

compliance with NCLB. That “change in legal status” signifi-

cantly increases the likelihood that California will take steps

to increase the number of teachers with “preliminary” and

“clear” credentials in minority and low-income schools in

order to comply with NCLB.

The Secretary makes two arguments against this conclu-

sion. First, he argues that intern teachers are, in fact, already

fully certified under California law. In making this argument,

the Secretary contends 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. This

is a very odd contention. As the Secretary surely knows, we

routinely interpret California law in cases in which California

is not a party. And while we defer to the Secretary’s interpre-

tation of federal law under Chevron, we owe no deference to

his interpretation of state law.

It is reasonably clear that intern teachers are not fully certi-

fied under current California law. California’s Education

16338 RENEE v. DUNCAN

Code distinguishes between holders of intern credentials and

holders of preliminary and clear credentials in several ways.

For example, § 44300(a)(1)(A) of the Education Code, which

governs the hiring of permit holders, requires school districts

to document recruitment efforts to hire “certificated teachers,

including teacher candidates pursuing full certification

through internship, district internship, or other alternative

routes.” (Emphasis added.) That is, while interns are “certifi-

cated teachers,” they are merely “pursuing full certification.”

Cal. Educ. Code § 44300(a)(1)(A); see also id. § 44225.7(a)

(indicating that interns are not “fully prepared” teachers);

Bakersfield Elementary Teachers Ass’n v. Bakersfield City

Sch. Dist., 145 Cal. App. 4th 1260, 1277 (2006) (referring to

credentials other than clear and preliminary as less than “reg-

ular”).

The 2004 piggybacking California regulations similarly

distinguish between intern teachers and fully credentialed

teachers. Under the regulation applicable to middle and sec-

ondary 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.” Cal. Code

Regs. tit. 5, § 6110(2). Thus, as recently as 2004, California

confirmed that intern credential holders are not fully certified

under the current credentialing system.

Second, the Secretary argues that if the federal regulation

is held invalid, California will almost certainly change its cre-

dentialing laws to provide that the holder of an intern creden-

tial is fully certified under California law. We disagree. As

just discussed, California’s Education Code indicates that

holders of “preliminary” and “clear” credentials have “full

certification,” but that interns do not. After the passage of

NCLB, California made no attempt to change its law to pro-

vide that teachers with intern credentials are fully credentialed

under California law. Both before and after the promulgation

of the challenged federal regulation, California law has char-

RENEE v. DUNCAN 16339

acterized intern teachers as not having full credentials. The

Secretary points to no evidence indicating that, in the event

the federal regulation is held invalid, California will change

its credentialing law in a manner it has so far not seen fit to

do.

Finally, our dissenting colleague makes an argument not

made by the Secretary. He argues that even if the federal reg-

ulation is struck down, and even if intern teachers in Califor-

nia are not “highly qualified” within the meaning of NCLB,

there is nothing in NCLB that empowers the Secretary to

withhold funds as means of compelling a state to adopt a spe-

cific system of teacher credentialing. Diss. at 16350 (citing 20

U.S.C. § 7910). But that is not the issue. It is undisputed that

NCLB gives the State great flexibility in deciding which

teachers are fully certified under state law, and that the Secre-

tary cannot compel a State to adopt any specific credentialing

system.

The issue, rather, is 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 certi-

fication” as the state then defines “full certification.” That is,

a state is free to define “full certification” in any way it

chooses. But then, once having defined full certification under

state law, the state is required to take steps to ensure that fully

certified teachers are proportionately represented in the teach-

ing staffs of minority and low-income schools. It is undis-

puted that the Secretary has authority to withhold funds if a

state does not take such steps. See 20 U.S.C. § 1234c (Secre-

tary may withhold funds if a recipient “is failing to comply

substantially with any requirement of law applicable to such

funds”); id. § 6311(b)(8)(C), (g)(2) (Secretary may withhold

funds if the State has not submitted a plan describing “specific

steps the State educational agency will take to ensure that

both schoolwide programs and targeted assistance schools

provide instruction by highly qualified instructional staff”).

16340 RENEE v. DUNCAN

[7] The Secretary is not required to withhold funds if a

state fails to take steps to come into compliance with NCLB.

The statute provides that he “may” do so rather than that he

“must” do so. Id. §§ 1234c, 6311(g)(2). But the possibility of

the Secretary withholding funds is an obvious incentive for a

State to comply with NCLB. Further, even if the Secretary

does not withhold funds, we are unwilling to assume that Cal-

ifornia is a scofflaw state. That is, we are unwilling to assume

that California will refuse to take steps to come into compli-

ance with NCLB in the absence of such compulsion.

Conclusion

[8] We cannot be absolutely certain how California will

respond to the “change in legal status” effected by the invali-

dation of § 200.56(a)(2)(ii). It is possible, as the Secretary

argues, that California will change its credentialing law such

that intern teachers will, for the first time, be fully certified

under state law. But, as discussed above, the Secretary points

to no evidence supporting his contention that California is

likely to do so. Indeed, the available evidence suggests pre-

cisely the opposite. On the record before us, we conclude that

a favorable decision of this court will significantly increase

the likelihood of redress of plaintiffs’ injuries. See Utah, 536

U.S. at 464. That is all that is required by Article III. See Fed.

Election Comm’n, 524 U.S. at 25. We therefore hold that

Appellants have standing under Article III.

We further hold that the definition of a “highly qualified

teacher” contained in 34 C.F.R. § 200.56(a)(2)(ii) is invalid

because it impermissibly expands the definition in 20 U.S.C.

§ 7801(23) to include teachers who only “demonstrate[ ] sat-

isfactory progress toward full certification.” Our holding does

not depend on the meaning of “full State certification” in

§ 7801(23). We do not address the question whether the Sec-

retary could promulgate a valid regulation providing that an

intern teacher meeting certain criteria could have “full State

certification” within the meaning of NCLB.

RENEE v. DUNCAN 16341

We reverse the district court’s grant of summary judgment

in favor of the Secretary. We remand for further proceedings

consistent with this opinion.

REVERSED and REMANDED.

TALLMAN, Circuit Judge, dissenting:

I respectfully dissent. Appellants—several California pub-

lic school students, their parents, and two non-profit organiza-

tions, including the now-defunct California Association of

Community Organizations for Reform Now (“California

ACORN”)—lack Article III standing because their alleged

injury cannot be redressed by a favorable decision from us. I

do not disagree with the majority’s conclusion that the regula-

tion’s phrase, “[d]emonstrates satisfactory progress toward

full certification as prescribed by the State,” 34 C.F.R.

§ 200.56(a)(2)(ii)(A)(4), is broader than the statute’s phrase,

“has obtained full State certification,” 20 U.S.C. § 7801(23).

But striking down the federal regulation at issue will have no

positive practical impact on Appellants’ alleged injury

because that injury is caused by the actions of a third party not

before us—the State of California. Because invalidating the

challenged federal regulation will not redress Appellants’

alleged injury, I would hold they have no standing to chal-

lenge the regulation in the first place. This appeal should be

dismissed for that reason.

I

Appellants argue that the Secretary of Education’s

(“Secretary’s”) regulation of the states, in this case California,

has harmed them. Under § 702 of the Administrative Proce-

dure Act (“APA”), “[a] person suffering legal wrong because

of agency action, or adversely affected or aggrieved by

agency action within the meaning of a relevant statute, is enti-

16342 RENEE v. DUNCAN

tled to judicial review thereof.” 5 U.S.C. § 702. “To establish

standing to sue under the APA, appellants must first meet the

‘irreducible constitutional minimum of standing [which] con-

tains three elements: (1) injury in fact; (2) causation; and (3)

likelihood that a favorable decision will redress the injury.’ ”

DBSI/TRI IV Ltd. P’ship v. United States, 465 F.3d 1031,

1038 (9th Cir. 2006) (quoting Lujan v. Defenders of Wildlife,

504 U.S. 555, 560 (1992)). Appellants, as the parties “invok-

ing federal jurisdiction[,] bear[ ] the burden of establishing

these elements.” Lujan, 504 U.S. at 561.

While Appellants may be able to establish an injury in fact,

they can neither establish causation nor a likelihood that a

favorable decision will redress their injury.

II

Appellants have struggled to define their injury in fact. The

majority characterizes Appellants’ injury as a “poorer quality

education” that results from a disproportionate number of

interns being assigned to California public schools that serve

minority and low-income students. Maj. Op. at 16335. This

characterization seemingly contains two injuries. One injury

is a poorer quality education itself. Another injury is the dis-

proportionate number of intern teachers hired in these

schools. Of course, Appellants argue that the latter causes the

former. It follows then, that what Appellants really want is

quite understandable—a better quality education.

But as the author of the majority opinion once wrote, “The

critical question is not what [a plaintiff] ‘really’ want[s].”

William A. Fletcher, The Structure of Standing, 98 Yale L.J.

221, 242 (1988). Rather, as my colleague there argued, courts

should “look[ ] to the underlying ‘relevant’ statute to deter-

mine whether the would-be plaintiff has standing.” Id. at 264-

65; see also Int’l Primate Protection League v. Adm’rs of

Tulane Educ. Fund, 500 U.S. 72, 77 (1991) (citing the same

article for the same proposition). Thus, the argument must be

RENEE v. DUNCAN 16343

that because NCLB entitles Appellants to the same proportion

of highly qualified teachers to non-highly qualified teachers

as students in affluent areas, the deprivation of that entitle-

ment constitutes their alleged real and immediate injury.

The majority nevertheless characterizes Appellants’ injury

in fact by what they “really” want—an improvement in their

“poorer quality education.” But it is entirely speculative to

conclude that striking down the regulation at issue would

redress that injury. As amicus Teach for America notes, its

teachers were able to fill positions in low-income areas pre-

cisely because “schools in disadvantaged areas were far more

likely to have had hiring difficulties than schools in other

areas.” Brief for Amicus Curiae Teach for America, et al. at

27-28 (quoting Richard M. Ingersoll, Center for American

Progress, Why Do High-Poverty Schools Have Difficulty

Staffing Their Classrooms with Qualified Teachers? 5 (Nov.

2004)). Put simply, many “highly qualified teachers” would

rather work in affluent area schools than low-income area

schools. See Brian A. Jacob, The Challenges of Staffing

Urban Schools with Effective Teachers, 17 Future of Children

1 (Spring 2007) (noting that 34.7% of central city schools had

difficulty hiring a math teacher, compared with only 25.1% of

suburban schools).

By removing the Teach for America teachers’ “highly qual-

ified” label, Appellants hope to lower the number of Teach

for America teachers legally allowed to fill vacant positions

in low-income area schools. But were California to carry out

Appellants’ desired result, Teach for America suggests that

disadvantaged schools would not see an increase in the num-

ber of teachers with “full State certification” teaching in low-

income schools, but rather an endemic increase in vacancies.

Faced with a staggering number of vacancies, school districts

would be forced to resort to emergency measures, such as hir-

ing short-term or long-term substitute teachers. See Brief of

Amicus Curiae Teach for America at 29.

16344 RENEE v. DUNCAN

Some have argued that students taught inconsistently by

substitute teachers do not receive the same quality education

as students consistently taught by permanent teachers, regard-

less of either teacher’s certification status. See Charles T.

Clotfelter, Helen F. Ladd & Jacob L. Vigdor, National Bureau

of Economic Research Working Paper No. 13648, Are

Teacher Absences Worth Worrying About in the U.S.? 26

(Nov. 2007) (“students whose teachers miss more days for

sickness score lower on state achievement tests”); Teacher

Absences Hurting Learning, USA Today, Jan. 18, 2006 (cit-

ing University of Washington postdoctoral fellow Raegen

Miller for the proposition that as few as ten teacher absences

in a year cause significant loss in math achievement). Thus,

what little information there is about the potential impact of

the majority’s decision indicates that it would not redress the

majority’s characterization of Appellants’ alleged injury—a

“poorer quality education.”

In addition, were Appellants’ injury in fact defined as a

“poorer quality education,” they would have difficulty prov-

ing that such an injury is “real and immediate, not conjectural

or hypothetical.” City of Los Angeles v. Lyons, 461 U.S. 95,

102 (1983) (internal quotations omitted). It is speculative to

conclude that all fully certified teachers provide a higher qual-

ity education than all teachers participating in alternative

route programs. Compare Kati Haycock, Good Teaching Mat-

ters: How Well-Qualified Teachers Can Close the Gap 13

(1998) (noting that “[e]ducation courses completed, advanced

education degrees, scores on professional knowledge sections

of licensing exams, even, interestingly, years of experience

. . . [do not] seem to have a clear relationship to student

achievement”), and Thomas J. Kane, Jonah E. Rockoff &

Douglas O. Staiger, Photo Finish: Certification Doesn’t

Guarantee a Winner, Education Next 64 (Winter 2007) (not-

ing that “a teacher’s certification status matters little for stu-

dent learning”), with Linda Darling-Hammond, Access to

Quality Teaching: An Analysis of Inequality in California’s

Public Schools, 43 Santa Clara L. Rev. 1045, 1051 (2003)

RENEE v. DUNCAN 16345

(noting that “[n]ational studies have . . . found that differences

in teachers’ qualifications—including teachers’ general abil-

ity, knowledge of subject matter, preparation for teaching, and

certification status, which reflects aspects of all of these other

indicators—show significant effects on student achievement

measured at the state, district, school, and individual student

levels”) (citation omitted).

Appellants have sued under the APA to enforce the letter

of NCLB. In passing NCLB, Congress asked states to develop

“plans” to “identify steps” that they will take to ensure that

“poor and minority children are not taught at higher rates than

other children by inexperienced, unqualified, or out-of-field

teachers.” 20 U.S.C. § 6311(b)(8)(C). Appellants allege that

the federal regulation at issue has injured their right to not be

taught by inexperienced teachers at a higher rate than “other

children.” Their alleged injury should therefore be character-

ized as a lower proportion of experienced to inexperienced

teachers instructing them as opposed to those instructing stu-

dents in affluent areas. It is this alleged injury—the lower pro-

portion itself—that I would consider as Appellants’ “real and

immediate” alleged injury under the relevant statute. Lyons,

461 U.S. at 102.

The majority reasons that if it strikes down the Secretary’s

definition of a “highly qualified” teacher, 34 C.F.R.

§ 200.56(a)(2)(ii)(A)(4), as inconsistent with Congress’ defi-

nition of a “highly qualified” teacher, 20 U.S.C. § 7801(23),

Appellants’ alleged injury will be redressed. I cannot agree.

III

Appellants’ alleged injury is caused by a “third party not

before the court.” Lujan, 504 U.S. at 560. If a plaintiff is “an

object of the [challenged] action (or forgone action) . . . there

is ordinarily little question that the action or inaction has

caused him injury, and that a judgment preventing or requir-

ing the action will redress it.” Id. at 561-62. “When, however,

16346 RENEE v. DUNCAN

as in this case, a plaintiff’s asserted injury arises from the

government’s allegedly unlawful regulation (or lack of regu-

lation) of someone else, much more is needed.” Id. at 562. As

the Supreme Court has stated:

In that circumstance, causation and redressability

ordinarily hinge on the response of the regulated (or

regulable) third party to the government action or

inaction—and perhaps on the response of others as

well. The existence of one or more of the essential

elements of standing depends on the unfettered

choices made by independent actors not before the

courts and whose exercise of broad and legitimate

discretion the courts cannot presume either to control

or to predict, and it becomes the burden of the plain-

tiff to adduce facts showing that those choices have

been or will be made in such manner as to produce

causation and permit redressability of injury. Thus,

when the plaintiff is not himself the object of the

government action or inaction he challenges, stand-

ing is not precluded, but it is ordinarily substantially

more difficult to establish.

Id. (internal quotations and citation omitted).

In passing NCLB, Congress defined a “highly qualified”

teacher as a teacher with “full State certification.” 20 U.S.C.

§ 7801(23). However, NCLB left the definition of “full State

certification” entirely to the states—all of which are third par-

ties not before us. To date, California has not defined “full

State certification.” What California has done is issue its own

regulations interpreting and implementing NCLB. Under Cal-

ifornia Code of Regulations, title 5, §§ 6101 and 6110, “[a]

teacher who meets NCLB requirements” is one who “holds at

least a bachelor’s degree and is currently enrolled in an

approved intern program for less than three years,” or has a

credential and meets other applicable testing requirements.

Cal. Code Regs. tit. 5, §§ 6101(2), 6110(2). Thus, California

RENEE v. DUNCAN 16347

considers teachers presently participating in alternative certifi-

cation programs to be highly qualified for purposes of NCLB.

Appellants’ alleged injury is therefore caused by Califor-

nia’s credentialing scheme. But California is not—and seem-

ingly could never be—a party to this suit. See Horne v.

Flores, 129 S. Ct. 2579, 2598 n.6 (2009) (“NCLB does not

provide a private right of action. . . . Thus, NCLB is enforce-

able only by the agency charged with administering it.”). As

a result, Appellants’ injury “depends on the unfettered choices

made by independent actors not before the courts and whose

exercise of broad and legitimate discretion the courts cannot

presume either to control or to predict.” Lujan, 504 U.S. at

562.

Because Appellants cannot bring suit against California,

they have challenged the Secretary’s regulation. To have Arti-

cle III standing to do so, however, Appellants must prove that

their injury is fairly traceable to the challenged regulation.

Lujan, 504 U.S. at 560. Aside from timing, Appellants present

no evidence that California inextricably relied on the Secre-

tary’s now-stricken regulation—as opposed to NCLB itself—

in adopting its regime.

Therefore, Appellants cannot prove that the Secretary’s

regulation caused the injury they allege. Instead, Appellants’

injury is “the result of . . . [California’s] independent action

. . . [which is] not before the court.” Bennett v. Spear, 520

U.S. 154, 169 (1997) (internal quotations omitted). Because

California could have classified non-certified intern teachers

as “highly qualified” even in the absence of the federal regu-

lation, Appellants have not demonstrated that they have been

injured by the Secretary’s action.

IV

The majority’s disposition will not redress Appellants’

injury. A plaintiff meets the redressability test if it is “likely”

16348 RENEE v. DUNCAN

—not certain—“that the injury will be redressed by a favor-

able decision.” Lujan, 504 U.S. at 561 (internal quotations

omitted); Bonnichsen v. United States, 367 F.3d 864, 872 (9th

Cir. 2004). While “[p]laintiffs need not demonstrate that there

is a ‘guarantee’ that their injuries will be redressed by a favor-

able decision,” Graham v. Fed. Emergency Mgmt. Agency,

149 F.3d 997, 1003 (9th Cir. 1998), a “purely speculative

favorable outcome will not suffice,” Rubin v. City of Santa

Monica, 308 F.3d 1008, 1020 (9th Cir. 2002) (internal quota-

tion omitted).

The majority does not strike down California’s regulation

—the cause of Appellants’ alleged injury. Instead, the major-

ity strikes down a federal regulation that is nowhere men-

tioned in the California regulation. For Appellants’ injury to

be redressed, California—a third party not before us—will

have to do something, but Appellants have not met their bur-

den to prove that California would be coerced into doing any-

thing in response to the majority’s holding. Cf. Bennett, 520

U.S. at 169.

Appellants argue that a declaration stating that the Secre-

tary’s alternative route regulation is “unlawful and void,”

would likely cause California to cease treating alternative

route participants as highly qualified. Both parties agree that

whether an alternative route participant holds “full State certi-

fication as a teacher (including certification obtained through

alternative routes to certification)” is a matter of state law.

Thus, redressability turns on whether, absent the regulation,

California would continue to consider teachers participating

in alternative routes fully certified. But because California is

not a party to this suit, we have little reason—beyond

speculation—to believe it will change its regulatory scheme

in any way as a result of Appellants’ victory.

The majority argues that the current California regulations

“piggyback” on 34 C.F.R. § 200.56(a)(2)(ii), and if that sec-

tion is struck down, “California [will be] very likely out of

RENEE v. DUNCAN 16349

compliance with NCLB” and will therefore be forced to

amend its credentialing scheme. Maj. Op. at 16337. I dis-

agree. The very language of California Code of Regulations,

title 5, §§ 6101 and 6110 indicates that a teacher who holds

a bachelor’s degree and who is enrolled in an approved intern

program “meets NCLB requirements,” not the requirements

of the Secretary’s regulations. Even assuming that §§ 6101

and 6110 were enacted to conform to both 34 C.F.R. § 200.56

and NCLB itself, there is nothing in §§ 6101 and 6110 that

ties their validity to that of § 200.56. The “Reference” section

in the notes to §§ 6101 and 6110 includes a citation to

NCLB’s statutory definition of “highly qualified,” 20 U.S.C.

§ 7801(23), but does not reference the Secretary’s definition

in § 200.56. Indeed, § 200.56 is not mentioned in either

§ 6101 or § 6110, even though these sections were enacted

after § 200.56. Finally, the “Authority cited” for §§ 6101 and

6110 is California Education Code § 12001, which gives the

State Board of Education authority to “adopt rules and regula-

tions for the allocation of federal funds,” but nowhere requires

it to conform these “rules and regulations” to federal regula-

tions. Cal. Educ. Code § 12001.

Appellants argue that because California allegedly changed

its laws to comply with NCLB and its implementing regula-

tions once before, it will do so again if the Secretary’s imple-

menting regulation is revoked. But Appellants fail to cite any

other evidence indicating that revocation of the Secretary’s

regulation would have a coercive effect upon California. It is

not just that California could change its state law definition of

“full credential” to include alternative route participants. Cali-

fornia could instead decide to keep its regulatory scheme in

its currently ambiguous state. The majority admits as much.

See Maj. Op. at 16339 (noting there is “no evidence indicating

that, in the event the federal regulation is held invalid, Cali-

fornia will change its credentialing law”). Even with the fed-

eral regulation stricken, the existing California regulations

would continue to credit an intern as “[a] teacher who meets

16350 RENEE v. DUNCAN

NCLB requirements.” Cal. Code Regs. tit. 5, §§ 6101(2),

6110(2).

The majority also overestimates the coercive power that the

Secretary has over California, citing 20 U.S.C. § 1234c for the

proposition that the Secretary “may withhold funds or take

other enforcement action if a state fails to comply substan-

tially with NCLB’s requirements.” Maj. Op. at 16323. Con-

trary to the majority’s conclusion, Congress has made it clear

that the Secretary may not tie federal funding specifically to

certification standards. See 20 U.S.C. § 7910(b) (“The Secre-

tary is prohibited from withholding funds from any State edu-

cational agency or local educational agency if the State

educational agency or local educational agency fails to adopt

a specific method of teacher or paraprofessional certifica-

tion.”); id. § 7910(a) (“[N]o funds available to the Department

or otherwise available under this chapter may be used for any

purpose relating to a mandatory nationwide test or certifica-

tion of teachers or education paraprofessionals.”). This spe-

cific prohibition on withholding funds based on the

“certification of teachers” must trump the Secretary’s general

power to withhold funds for “failing to comply substantially”

with NCLB. See Morales v. Trans World Airlines, Inc., 504

U.S. 374, 384 (1992) (“[I]t is a commonplace of statutory

construction that the specific governs the general.”).

The majority attempts to circumvent this argument by stat-

ing that the question in this case is not whether the Secretary

has the authority to dictate how teachers are certified, but

rather, “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 dispropor-

tionately by teachers without ‘full State certification’ as the

state then defines ‘full certification.’ ” Maj. Op. at 16339.

This is a distinction without a difference. Were the Secretary

to withhold desperately needed funds from California based

on the majority’s interpretation of California’s certification

process, the Secretary would in effect be imposing on Califor-

RENEE v. DUNCAN 16351

nia a federal interpretation of California’s own law. Under 20

U.S.C. § 7910(b), the Secretary cannot use the power of the

federal purse to compel California to adopt a given standard

to determine who is fully State certified, but that is precisely

what the majority’s decision attempts to force the Secretary to

do.

In enacting NCLB, Congress merely required the states to

adopt a “plan” that describes

the specific steps the State educational agency will

take to ensure that both schoolwide programs and

targeted assistance schools provide instruction by

highly qualified teachers as required by sections

6314(b)(1)(C) and 6315(c)(1)(E) of this title, includ-

ing steps that the state educational agency will take

to ensure that poor and minority children are not

taught at higher rates than other children by inexperi-

enced, unqualified, or out-of-field teachers, and the

measures that the State educational agency will use

to evaluate and publicly report the progress of the

State educational agency with respect to such steps.

20 U.S.C. § 6311(b)(8)(C). Moreover, 34 C.F.R. § 200.57, the

regulation relating to teacher quality, does not require states

to force teachers to work at a particular school. Nor does it

even require that a balance exist in practice. What § 200.57

does require is that states “establish annual measurable objec-

tives” and describe the steps and strategies the state will use

to ensure teacher parity. 34 C.F.R. § 200.57(a)(2). The regula-

tion also requires school districts to develop a plan to ensure

that

[t]hrough incentives for voluntary transfers, profes-

sional development, recruitment programs, or other

effective strategies, minority students and students

from low-income families are not taught at higher

16352 RENEE v. DUNCAN

rates than other students by unqualified, out-of-field,

or inexperienced teachers.

Id. § 200.57(b)(2).

These minimal requirements highlight why Appellants’

injuries are not redressable. The majority repeatedly assumes

that the State of California can simply assign or redistribute

highly qualified teachers. These teachers are human beings.

They are not pawns on a chess board that can be redistributed

at will. Even in the absence of the regulation the majority

strikes down, there is no requirement that California recon-

sider any such teacher allocations, only that it “establish

annual measurable objectives,” 34 C.F.R. § 200.57(a)(2),

develop a plan with “incentives for voluntary transfers,” id.

§ 200.57(b)(2), and “report [on its] progress,” 20 U.S.C.

§ 6311(b)(8)(C).

In short, the majority may strike down a portion of 34

C.F.R. § 200.56, but its disposition cannot compel California

to entice better teachers to work in low-income areas. There

is simply no basis in the record to believe that California will

adopt incentive programs to encourage the voluntary transfer

of fully State certified teachers—whoever they may be—as

the result of the majority’s disposition. Given California’s

current budget woes, that result is speculative indeed. Even if

California had the practical means to enact such incentive

programs for each locally-controlled school district, the deci-

sion to do so lies squarely within the kind of “broad and legit-

imate discretion the courts cannot presume either to control or

to predict,” Lujan, 504 U.S. at 562, and as a result, Plaintiffs

do not have standing.

The majority nevertheless holds that California is likely to

change its current policies and attempt to redistribute its fully

State certified teachers by creating new incentive programs

out of fear of being labeled a “scofflaw” and that there is

therefore a significant likelihood that Appellants’ injuries will

RENEE v. DUNCAN 16353

be redressed. Maj. Op. at 16339. But this argument again

boils down to how “fully State certified” is defined—a ques-

tion that has left us grappling with California’s ambiguous

certification scheme without the benefit of California’s input.

Despite the fact that California is not a party to this suit and

we are bereft of the State’s own interpretation of its certifica-

tion scheme, the majority has proceeded to adopt a definition

of “fully State certified” that excludes interns. While the

majority’s analysis on the subject is thorough, I think it

unlikely that California “would feel compelled to accede to

the legal view of a . . . court expressed in a case to which it

was not a party.” Lujan, 504 U.S. at 571 n.5 (Scalia, J., con-

curring).

Accordingly, Appellants have failed to meet their burden of

establishing redressability.

V

Appellants cannot establish the requirements of causation

or redressability necessary to confer Article III standing under

Lujan. We should hold they have no standing and direct dis-

missal of the case.