Newark Parents Assn v. Newark Pub Sch

Opinions of the United

2008 Decisions States Court of Appeals

for the Third Circuit

11-20-2008

Newark Parents Assn v. Newark Pub Sch

Precedential or Non-Precedential: Precedential

Docket No. 07-4002

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 07-4002

NEWARK PARENTS ASSOCIATION; ALBERTA GREEN;

HABIBULLAH SALEEM; ANDREA SMITH,

Appellants

v.

NEWARK PUBLIC SCHOOLS; MARION A. BOLDEN,

Superintendent, Newark Public Schools,

in her individual and official capacities;

JANET CHAVIS, Supervisor, Title 1 Office,

Newark Public Schools, in her individual and

official capacities; JOANN TROTMAN, Supervisor,

Title 1 Office, Newark Public Schools, in her

individual and official capacities

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

(D.C. Civil No. 06-cv-05690)

District Judge: The Honorable Susan D. Wigenton

Argued: September 25, 2008

Before: BARRY, AMBRO and JORDAN, Circuit Judges

(Opinion Filed: November 20, 2008)

Scott M. Michelman, Esq. (Argued)

American Civil Liberties Union

1101 Pacific Avenue

Santa Cruz, CA 95060

-AND-

Emily B. Goldberg, Esq.

Seton Hall Law School

833 McCarter Highway

Newark, NJ 07102-0000

Counsel for Appellants

Adam S. Herman, Esq. (Argued)

Newark Public Schools

Office of General Counsel

2 Cedar Street, 10th Floor

Newark, NJ 07102-0000

Counsel for Appellees

OPINION OF THE COURT

BARRY, Circuit Judge

Appellants are a putative class of parents of children

enrolled in the public elementary and middle schools of Newark,

New Jersey, and an organization that represents them. They

brought suit against appellees, Newark’s public school system and

various school administrators, under the No Child Left Behind Act

(“NCLBA” or the “Act”), 20 U.S.C. § 6301 et seq., and 42 U.S.C.

§ 1983. The complaint alleges that because the Newark public

school system has failed to live up to its obligations under certain

provisions of the Act, appellants are entitled to privately enforce

those provisions. Appellees moved to dismiss and the District

Court granted the motion, concluding that Congress did not confer

on individuals an enforceable right of action under the Act.

Deciding what is an issue of first impression in the federal courts

2

of appeals, we will affirm.

I. The No Child Left Behind Act

A. The Act’s Purpose and Its Funding Provisions

Congress enacted the Act pursuant to its spending power.

See U.S. Const. art. I, § 8, cl. 1. The Act, at its outset, states that

its purpose 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 (footnote omitted). This eminently laudatory purpose is to

be accomplished by, among other things,

holding schools, local educational agencies, and

States accountable for improving the academic

achievement of all students, and identifying and

turning around low-performing schools that have

failed to provide a high-quality education to their

students, while providing alternatives to students in

such schools to enable the students to receive a high-

quality education.

Id. § 6301(4).

As with other legislation enacted under Congress’s spending

power, the Act offers a simple quid pro quo: Congress shall

appropriate funds to a State educational agency1 if it agrees to take

certain specific actions. The State, in turn, appropriates those

funds to its local educational agencies (referred to alternatively as

“LEAs”) for the purpose of helping schools to improve in

accordance with the Act. See id. §§ 6302(i), 6303(g), 6311(a)(1),

6316(a)(1). To become eligible for federal funding, the State

educational agency must first submit to the U.S. Secretary of

Education a plan demonstrating that “the State has adopted

challenging academic content standards and challenging student

academic achievement standards that will be used by the State, its

1

The Act refers interchangeably to a “State” and a “State

educational agency.”

3

local educational agencies, and its schools.” Id. § 6311(b)(1)(A).

The State plan shall, among other things, “demonstrate that the

State has developed and is implementing a single, statewide State

accountability system that will be effective in ensuring that all local

educational agencies, public elementary schools, and public

secondary schools make adequate yearly progress.” Id. §

6311(b)(2)(A). The State is tasked with defining “adequate yearly

progress” in a “statistically valid and reliable” manner that

uniformly applies “the same high standards of academic

achievement” to all of its schools. Id. § 6311(b)(2)(C)(i)-(ii).

Every local educational agency receiving funds under the

Act is obligated to “use the State academic assessments and other

indicators described in the State plan to review annually the

progress of each school served under this part to determine whether

the school is making adequate yearly progress.” Id. §

6316(a)(1)(A). If a local educational agency determines that a

school has failed to make “adequate yearly progress” for two

consecutive years, the agency shall identify the school for “school

improvement.” Id. § 6316(b)(1)(A). If, for two years after being

identified as requiring “school improvement,” a school continues

to fail to achieve “adequate yearly progress,” the agency shall

identify the school for “corrective action.” Id. § 6316(b)(7)(C). If,

after one full school year of “corrective action,” the school

continues to fail to achieve “adequate yearly progress,” the agency

shall identify the school for “restructuring.” Id. § 6316(b)(8)(A)-

(B).

B. The Act’s Notification and Supplemental Educational

Services Provisions

If a school is identified for “improvement,” “corrective

action,” or “restructuring,” the local educational agency

shall promptly provide to a parent or parents . . . an

explanation of what the identification means, . . . the

reasons for the identification[,] . . . an explanation of

what the school identified for school improvement is

doing to address the problem of low achievement[,]

. . . an explanation of what the local educational

agency or State educational agency is doing to help

4

the school address the achievement problem[, and] .

. . an explanation of how the parents can become

involved in addressing the academic issues that

caused the school to be identified for school

improvement.

Id. § 6316(b)(6)(A)-(E).2 Importantly, this written explanation

must also provide “an explanation of the parents’ option to transfer

their child to another public school . . . or to obtain supplemental

educational services for the child.” Id. § 6316(b)(6)(F); see also id.

§§ (b)(1)(E), (b)(5)(A), (b)(7)(C)(i), (c)(10)(C)(vii). As for

supplemental educational services (referred to alternatively as

“SES”),

the local educational agency serving such school

shall . . . arrange for the provision of supplemental

educational services to eligible children in the school

from a provider with a demonstrated record of

effectiveness, that is selected by the parents and

approved for that purpose by the State educational

agency in accordance with reasonable criteria.

Id. § 6316(e)(1).

A parent’s right to obtain supplemental educational services

for his or her child, however, is qualified in that children from low-

income families and children with the lowest achievement levels

are prioritized. The Act provides that the local educational agency

is obligated to arrange for the provision of supplemental

educational services to “eligible children,” id. § 6316(e)(1), with

“eligible child” defined to mean “a child from a low-income

family, as determined by the local educational agency,” id. §

6316(e)(12)(A). If the amount of funds allocated to a local

educational agency to provide supplemental educational services

2

As noted, such notification shall be “promptly” given.

Another sub-section of the Act, however, addresses the notification

to be given in the event a school is identified for improvement, and

states that the local educational agency shall give students’ parents

notice “not later than the first day of the school year following such

identification.” 20 U.S.C. § 6316(b)(1)(E)(i).

5

is insufficient to provide those services to every eligible child, the

local educational agency is directed to give priority to the lowest-

achieving children. Id. § 6316(b)(10)(C). The State may, at the

request of a local educational agency, waive the obligation of the

local educational agency to provide supplemental educational

services if the State determines that no eligible supplemental

educational services provider is located close enough to the local

educational agency, and the agency demonstrates that it cannot

provide the services. Id. § 6316(e)(10)(A).

Students’ parents are also entitled to be notified, on an

annual basis and regardless of the status of the child’s school, of

their right to request and receive information concerning their

children’s teachers’ qualifications. More specifically,

[a]t the beginning of each school year, a local

educational agency that receives funds under this

part shall notify the parents of each student attending

any school receiving funds under this part that the

parents may request, and the agency will provide the

parents on request (and in a timely manner),

information regarding the professional qualifications

of the student’s classroom teachers.

Id. § 6311(h)(6)(A).

C. The Act’s Enforcement Provision

The Act includes a “Penalties” section, which provides as

follows: “If a State fails to meet any of the requirements of this

section . . . then the Secretary may withhold funds for State

administration under this part until the Secretary determines that

the State has fulfilled those requirements.” Id. § 6311(g)(2). The

provision does not offer any remedy to parents in the event of

noncompliance by a State or a local educational agency with any

of the Act’s terms.

II. Factual and Procedural Background

A. The Complaint

6

The complaint, filed on November 28, 2006, names as

plaintiffs a class consisting of the Newark Parents Association, a

non-profit organization that represents parents (or guardians) of

children attending certain public elementary and middle schools in

Newark, New Jersey. The named defendants are Newark Public

Schools, which is the corporate body charged with managing

Newark’s eighty-one public schools and the local educational

agency responsible for those schools; and individual administrators

of the schools.

The complaint alleges that the number of Newark public

schools “in Need of Improvement” under the Act, which the

complaint defines as “Failing Schools” (J.A. 24), was thirty-seven

for the 2003-2004 school year, forty-seven for the 2004-2005

school year, forty-eight for the 2005-2006 school year, and fifty-

one for the 2006-2007 school year. (Id. at 26-27.) It further

alleges that on September 14, 2005, the U.S. Department of

Education’s Office of the Inspector General issued a report of an

audit of five New Jersey school districts, including Newark Public

Schools. The audit found that during the 2004-2005 school year,

defendants “failed to meet even the minimum NCLB[A] Notice

Provisions pertaining to parents’ rights to transfer their children to

a non-failing school and to obtain SES for their children.” (Id. at

27.)

It is undisputed that those members of the proposed class

who are parents all have children enrolled in schools that qualify

as schools in need of improvement under the Act. The parents

claim that, in contravention of the Act, they were never notified (or

received insufficient notification) of (1) the fact that their children

were enrolled in deficient schools, (2) their right to transfer from

failing schools to non-failing schools, (3) their right to request

supplemental educational services under the Act and to receive

certain information about providers of such services, and (4) their

right to request information about the professional qualifications of

the teachers instructing their children. The class also includes

parents who learned, independent of defendants, of their right to

obtain supplemental educational services, and who then sought but

were denied such services for their children. The complaint alleges

that Newark Public Schools responded to these requests by giving

the parents two “Notification Packets” that Newark Public Schools

7

claimed had been mailed to parents for the 2005-2006 school year.

(Id. at 29.) The parents, it is alleged, never received the packets

but, even if they had, those packets would have been deficient

under the Act.

The complaint sets forth five causes of action invoking the

Act and 42 U.S.C. § 1983. Focusing only on the Act, plaintiffs’

first cause of action alleges that defendants’ failure to provide them

with notice (or, alternatively, with adequate notice) of the failing

status of their children’s schools violates 20 U.S.C. § 6316(b)(6).

The second cause of action alleges that defendants’ failure to

provide plaintiffs with notice (or adequate notice) of their right to

transfer their children out of a failing school to a non-failing school

violates 20 U.S.C. §§ 6316(b)(1)(E) and 6316(b)(6)(F). The third

cause of action alleges that defendants’ failure to provide plaintiffs

with notice (or adequate notice) of their right to request

supplemental educational services for their children who were

attending failing schools in Year 2 or higher violates 20 U.S.C. §§

6316(b)(6)(F) and 6316(e)(2). The fourth cause of action alleges

that defendants’ failure to provide plaintiffs with notice (or

adequate notice) of their right to request information about the

professional qualifications of their children’s teachers violates 20

U.S.C. § 6311(h)(6). The fifth and final cause of action alleges that

defendants’ denial of and interference with plaintiffs’ right to

request and/or receive supplemental educational services for their

children who were attending failing schools in Year 2 or higher

violates 20 U.S.C. § 6316(e)(1)-(2).

Plaintiffs sought class certification, a declaration that

defendants had violated the Act by failing to comply with its

mandatory notice provisions, an injunction ordering defendants to

comply with the Act’s notice and supplemental educational

services obligations, compensatory education for all eligible

students, and reasonable attorneys’ fees and costs.

8

B. The District Court’s Decision

The District Court granted defendants’ Rule 12(b)(6) motion

in an opinion and order dated September 19, 2007. The Court

made clear at the outset that two cases would guide its analysis:

Gonzaga University v. Doe, 536 U.S. 273 (2002), and Sabree ex

rel. Sabree v. Richman, 367 F.3d 180 (3d Cir. 2004).

As discussed in more detail below, the Gonzaga Court held

that the Family Educational Rights and Privacy Act of 1974

(“FERPA”) did not confer on private individuals a right to enforce

its terms. The District Court determined that the FERPA

provisions at issue in Gonzaga were very similar to the NCLBA’s

provisions under which plaintiffs were seeking relief. The Court

also found the overall structure of the statutes to be similar,

explaining those similarities as follows:

Although both FERPA and NCLBA ultimately

benefit students, the two statutes focus on

monitoring schools, not on individual students who

attend those schools. Similarly, under the NCLBA

the benefits that should ultimately trickle down from

the State to individual students are “two steps

removed from the interests of individual students.”

(J.A. 12 (quoting Gonzaga, 536 U.S. at 287).)

The District Court found, as well, that the statutes had a

similar “overall aggregate focus.” (Id.) The Court explained that,

as was the case in Gonzaga, the Act’s references to its ultimate

beneficiaries, i.e., students and their parents, are made only

secondarily. That is, the primary focus is on regulating the State by

obligating it to notify parents in certain circumstances; it is only

through that regulation that students and their parents benefit. The

Court, therefore, concluded as follows:

[R]eferences made to individual parents and children

in § 6316 are in terms of what would constitute a

violation of the Act—specifically, failing to provide

parents with adequate notice. Under Gonzaga, if

9

reference to the individual benefited under the

statute is only made in the context of describing the

“type of ‘policy or practice’ that triggers a funding

prohibition,” it is insufficient to confer individually

enforceable rights under § 1983.

(Id. at 13 (quoting Gonzaga, 536 U.S. at 288).)

The District Court then discussed Sabree. In Sabree, we

held that Title XIX of the Social Security Act conferred an

enforceable right on the mentally retarded individuals who were

seeking relief under that statute. The Court did not compare the

statutory language at issue in Sabree with the relevant language of

the Act. It found, however, that both Sabree and Gonzaga

emphasized the proposition that “clear, individually focused

statutory language was required before the Court could find

congressional intent to create an enforceable individual right.” (Id.

at 14.) Because the Court found that the Act did not confer an

“unambiguously conferred right” upon students’ parents, it did not

find it necessary to reach the issue of whether Congress foreclosed

the use of § 1983 as a remedy through which any such right could

be vindicated. (Id. at 14-15.)

Notice of appeal was timely filed. We have jurisdiction

over the appeal under 28 U.S.C. § 1291. Our review of a dismissal

for failure to state a claim is de novo. Victaulic Co. v. Tieman, 499

F.3d 227, 234 (3d Cir. 2007).

10

III. Discussion

Appellants argue that, in contravention of Supreme Court

precedent, the District Court only analyzed the Act as a whole and

failed to analyze the specific provisions under which their claims

are brought. They also argue that the Court did not meaningfully

apply our holding in Sabree, and had it done so, it would have been

compelled to find that a private right of action exists under the Act

because the statutory provisions at issue in Sabree are “structurally

identical to those at issue here.”3 (Appellants’ Br. 22.)

Separate and apart from whether the District Court’s

analysis of the Act was as thorough as appellants would have had

it be, the Court reached the correct conclusion. We will proceed to

explain why that is so.

A. Private Right of Action Precedent

The parties do not dispute that 42 U.S.C. § 19834 provides

3

Appellants argue, as well, that the Act’s legislative history

supports a finding of an enforceable private right of action and that

appellees waived any right they may have had to argue that

Congress foreclosed the use of § 1983 to sue under the Act.

Because we conclude that the statutory language does not show

that Congress unambiguously intended to confer on individuals an

enforceable right of action under the Act, we need not reach these

arguments.

4

Section 1983 provides:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws,

shall be liable to the party injured . . . .

42 U.S.C. § 1983.

11

a remedy by means of which an aggrieved individual may vindicate

rights conferred on him or her by federal statute. Maine v.

Thiboutot, 448 U.S. 1, 4-8 (1980). The federal statute under which

suit is brought provides the right; section 1983 provides the remedy

through which that right is vindicated. The question before us is

whether the NCLBA provides aggrieved individuals an enforceable

right. In a series of opinions, culminating in its 2002 decision in

Gonzaga, the Supreme Court has addressed the broader question of

when a statute provides an individual with an enforceable right.

We applied Gonzaga and discussed the cases that preceded it in

Sabree. It is useful, we believe, to lay the groundwork for what

follows by briefly discussing the Court’s decision in Gonzaga and

our decision in Sabree, the two decisions on which the parties and

the District Court quite appropriately focused their attention.

1. Gonzaga University v. Doe

Gonzaga concerned a student enrolled at Gonzaga

University who brought suit against the University under FERPA

after he learned that, in violation of FERPA’s nondisclosure

provisions, a University official had disclosed to a potential

employer (a public elementary school) that he had been accused of

committing acts of sexual misconduct against another student.

Plaintiff claimed that the statutory regime of FERPA conferred on

him a federal right, enforceable in a suit for damages under § 1983,

not to have his records disclosed to unauthorized persons without

consent. One of the nondisclosure provisions stated as follows:

“‘No funds shall be made available under any applicable program

to any educational agency or institution which has a policy or

practice of permitting the release of education records . . . of

students without the written consent of their parents to any

individual, agency, or organization.’” Gonzaga, 536 U.S. at 279

(quoting 20 U.S.C. § 1232g(b)(1)).

The Court began by noting that statutes enacted by Congress

under its spending power will rarely provide a private cause of

action to individuals. Indeed, it emphasized that “‘[i]n legislation

enacted pursuant to the spending power, the typical remedy for

state noncompliance with federally imposed conditions is not a

private cause of action for noncompliance but rather action by the

Federal Government to terminate funds to the State.’” Id. at 280

12

(quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1,

28 (1981)). The Court was explicit: “unless Congress ‘speak[s]

with a clear voice,’ and manifests an ‘unambiguous’ intent to

confer individual rights, federal funding provisions provide no

basis for private enforcement by § 1983.” Id. (quoting Pennhurst,

451 U.S. at 17, 28 & n.21) (alteration in original). It noted that

only twice since its decision in Pennhurst had it “found spending

legislation to give rise to enforceable rights.” Id.

The Court went on to address “[s]ome language in [its]

opinions [that] might be read to suggest that something less than an

unambiguously conferred right is enforceable by § 1983.” Id. at

282. After reiterating the three factors set forth in Blessing v.

Freestone, 520 U.S. 329 (1997), that “guide judicial inquiry into

whether or not a statute confers a right,” id., the Court explained

the source of the confusion:

. . . Blessing emphasizes that it is only violations of

rights, not laws, which give rise to § 1983 actions.

This confusion has led some courts to interpret

Blessing as allowing plaintiffs to enforce a statute

under § 1983 so long as the plaintiff falls within the

general zone of interest that the statute is intended to

protect; something less than what is required for a

statute to create rights enforceable directly from the

statute itself under an implied private right of action.

Fueling this uncertainty is the notion that our implied

private right of action cases have no bearing on the

standards for discerning whether a statute creates

rights enforceable by § 1983.

Id. at 282-83 (citation omitted). The Court then held: “We now

reject the notion that our cases permit anything short of an

unambiguously conferred right to support a cause of action brought

under § 1983.” Id. at 283. It emphasized that it was rights and not

“the broader or vaguer ‘benefits’ or ‘interests,’ that may be

enforced.” Id. Finally, it stated that “we further reject the notion

that our implied right of action cases are separate and distinct from

our § 1983 cases. To the contrary, our implied right of action cases

should guide the determination of whether a statute confers rights

enforceable under § 1983.” Id. Thus, “[f]or a statute to create such

13

private rights, its text must be ‘phrased in terms of the persons

benefited.’” Id. at 284 (citation omitted). It offered as examples

of statutes that create enforceable private rights Title VI of the

Civil Rights Act of 1964 and Title IX of the Education

Amendments of 1972 because they are phrased “‘with an

unmistakable focus on the benefited class.’” Id. (citation omitted).

Applying these principles to FERPA’s nondisclosure

provisions, the Court held that they failed to confer enforceable

rights:

To begin with, the provisions entirely lack the sort of

“rights-creating” language critical to showing the

requisite congressional intent to create new rights.

Unlike the individually focused terminology of

Titles VI and IX (“No person . . . shall . . . be

subjected to discrimination”), FERPA’s provisions

speak only to the Secretary of Education, directing

that “[n]o funds shall be made available” to any

“educational agency or institution” which has a

prohibited “policy or practice.” This focus is two

steps removed from the interests of individual

students and parents and clearly does not confer the

sort of “individual entitlement” that is enforceable

under § 1983.

Id. at 287 (citations omitted). It further explained that the

nondisclosure provisions spoke “only in terms of institutional

policy and practice, not individual instances of disclosure.” Id. at

288. Those provisions consequently had an aggregate focus; they

did not concern “whether the needs of any particular person have

been satisfied, and they cannot give rise to individual rights.

Recipient institutions can further avoid termination of funding so

long as they comply substantially with the Act’s requirements.” Id.

(internal quotation marks and citations omitted). Finally, the Court

found that the enforcement mechanism provided by Congress,

which vested sole enforcement power in the Secretary of

Education, buttressed its conclusion that FERPA’s nondisclosure

provisions did not confer enforceable rights: “Congress expressly

authorized the Secretary of Education to ‘deal with violations’ of

the Act, and required the Secretary to ‘establish or designate [a]

14

review board’ for investigating and adjudicating such violations.”

Id. at 289 (alteration in original)(citations omitted).

2. Sabree ex rel. Sabree v. Richman

In Sabree, the issue was whether Title XIX of the Social

Security Act, known as the “Medicaid Act,” which “established a

cooperative federal-state program under which the federal

government furnishes funding to states for the purpose of providing

medical assistance to eligible low-income persons,” conferred on

aggrieved individuals an enforceable private right of action. 367

F.3d 180, 182 (3d Cir. 2004) (internal quotation marks and citation

omitted). States that accepted funding under the Act were required

to comply with its terms and any regulations promulgated under

them, including a term requiring the creation and implementation

of a “state medical assistance plan” that had been approved by the

Secretary of Health and Human Services. Id.

Plaintiffs brought suit under a number of provisions of the

Medicaid Act. The first provision sued under, 42 U.S.C. §

1396a(a)(8), provided as follows: “‘A State plan for medical

assistance must . . . provide that all individuals wishing to make

application for medical assistance under the plan shall have

opportunity to do so, and that such assistance shall be furnished

with reasonable promptness to all eligible individuals . . . .’” Id.

at 182 n.4 (quoting 42 U.S.C. § 1396a(a)(8)) (emphasis added).

The second provision, 42 U.S.C. § 1396a(a)(10), provided: “‘A

State plan for medical assistance must . . . provide . . . for making

medical assistance available, . . . to . . . all [eligible] individuals .

. . .’” Id. at 182 n.5 (quoting 42 U.S.C. § 1396a(a)(10)) (emphasis

added) (brackets in original). And the third provision, 42 U.S.C.

§ 1396d(a)(15), provided: “‘For purposes of this title [42 U.S.C.

§§ 1396 et seq.] . . . [t]he term ‘medical assistance’ means payment

of part or all of the cost of the following care and services . . . for

individuals . . . who are [eligible:] . . . services in an intermediate

care facility for the mentally retarded. . . .’” Id. at 182 n.6 (quoting

42 U.S.C. § 1396d(a)(15)) (emphasis added) (alterations in

original).

We began by explaining that the Blessing Court, having

drawn on a number of the Court’s prior decisions, had formulated

15

a three-prong test to determine whether Congress had conferred

enforceable individual rights in a statute. Under that test, “a statute

must (1) be intended by Congress to benefit the plaintiff, (2) not be

‘vague and amorphous,’ and (3) impose an unambiguous ‘binding

obligation on the States.’” Sabree, 367 F.3d at 186 (quoting

Blessing, 520 U.S. at 340-41). We noted that while Gonzaga had

not abandoned this test,

it did dispel “[the] confusion [that] has led some

courts to interpret Blessing as allowing plaintiffs to

enforce a statute under § 1983 so long as the plaintiff

falls within the general zone of interest that the

statute is intended to protect; something less than

what is required for a statute to create rights

enforceable directly from the statute itself under an

implied private right of action.”

Id. at 186-87 (quoting Gonzaga, 536 U.S. at 283) (alterations in

original).

With these principles in mind, we turned to the text of the

Medicaid Act to determine whether it used rights-creating

language. We found that it did, and that the language used was

“clear and unambiguous.” Id. at 189. We stated that “we can

hardly imagine anyone disputing that a state must provide the

assistance necessary to obtain ICF/MR services, and that it must do

so with ‘reasonable promptness,’ and the government does not do

so.” Id. Next, we stated that in order “[t]o determine whether

these provisions provide plaintiffs with unambiguously conferred

rights, we begin with what has come to be called the ‘Blessing

Test,’” id., i.e., the three-prong test discussed above. We found

that that test was satisfied because “(1) plaintiffs were the intended

beneficiaries of §§ 1396a(a)(10), 1396d(a)(15), and 1396a(a)(8);

(2) the rights sought to be enforced by them are specific and

enumerated, not ‘vague and amorphous’; and (3) the obligation

imposed on the states is unambiguous and binding.” Id.

Because Gonzaga had held that satisfaction of the Blessing

test may only indicate that a plaintiff falls within the “‘general zone

of interest that the statute is intended to protect,’” however, we

turned again to the text of the Medicaid Act to determine whether

16

Congress had used “‘rights-creating terms.’” Id. at 189-90 (quoting

Gonzaga, 536 U.S. at 287). We concluded that the import of the

relevant language of the Act was “difficult, if not impossible” to

distinguish from the relevant language of Title VI of the Civil

Rights Act of 1964 and Title IX of the Education Amendments of

1972—the two statutes cited by the Gonzaga Court to contain

archetypal rights-creating language.

Just as in Titles VI and IX, the relevant terms used in

Title XIX are “mandatory rather than precatory.”

Further, the “individual focus” of Sections

1396a(a)(10), 1396d(a)(15), and 1396a(a)(8) is

unmistakable. The relevant Title XIX provisions

enumerate the entitlements available to “all eligible

individuals.” The provisions do not focus on “the

[entity] . . . regulated rather than the individuals

protected.” Neither do the statutory references to the

individual appear “in the context of describing the

type of ‘policy or practice’ that triggers a funding

prohibition.”

Id. at 190 (citations omitted) (brackets in original)

But, we continued, the Gonzaga Court had instructed that

“not only should the text of the statute be examined, but also its

structure.” Id. at 191. Turning to the general structure of the

Medicaid Act—that is, its other provisions viewed in the

aggregate—we conceded that it gave us “some pause.” Id. Its

opening section, for instance, stated that “Title XIX was enacted

‘[f]or the purpose of enabling each State . . . to furnish . . . medical

assistance.’” Id. (quoting 42 U.S.C. § 1396) (brackets in original).

We acknowledged that “[t]his language says nothing of individual

entitlements or rights, but reminds us that we are dealing with an

agreement between Congress and a particular state.” Id. We then

turned to § 1396c of the statute, which we explained “empowers

the Secretary of HHS to suspend payments to a state if it fails to

‘comply substantially’ with the requirements of Title XIX.” Id.

We concluded that “[t]his language not only confirms that Title

XIX by its terms creates a relationship between Congress and a

particular state, but it recalls, as well, the ‘comply substantially’

language in Blessing and Gonzaga University.” Id. at 191-92.

17

Balanced against the specific rights-creating language discussed

above, however, we held, in what was a very close case, that the

Medicaid Act conferred rights that the plaintiffs could enforce. Id.

at 192.

B. The NCLBA’s Notice and Supplemental Educational

Services Provisions Do Not Confer a Private Right of

Action Upon Aggrieved Individuals

We return to the case before us. As we noted at the outset,

no federal court of appeals has decided whether the Act’s various

notice and supplemental educational services provisions confer on

individuals a private right of action to enforce those provisions. It

is worthy of mention, however, that every district court that has

decided the question has held that, whatever the provision at issue,

the Act does not confer a right of action enforceable by individuals

or individual providers of supplemental educational services.5

We begin, as we must, by looking at the three provisions of

the Act under which appellants seek relief: 20 U.S.C. § 6316(b)(6),

20 U.S.C. §§ 6316(e)(1)-(2), and 20 U.S.C. § 6311(h)(6). As set

forth in greater detail above, the Act’s notice provision (20 U.S.C.

§ 6316(b)(6)) states that in the event a school is identified for

“improvement,” “corrective action,” or “restructuring,” the local

educational agency “shall promptly provide to a parent or parents”

5

See Simmons v. Santa Cruz County Dep’t of Educ., No.

07-04064, 2008 WL 1777384, at *2 (N.D. Cal. Apr. 18, 2008);

Catapult Learning, Inc. v. Bd. of Educ. of St. Louis, No. 4:07-935,

2007 WL 2736271, at *4 (E.D. Mo. Sept. 17, 2007); Holder v.

Gienapp, No. 06-221, 2007 WL 952039, at *2 (D.N.H. Mar. 28,

2007); Alliance For Children, Inc. v. City of Detroit Pub. Schs.,

475 F. Supp. 2d 655, 662-63 (E.D. Mich. 2007); Blanchard ex rel.

Blanchard v. Morton Sch. Dist., No. 06-5166, 2006 WL 2459167,

at *4 (W.D. Wash. Aug. 25, 2006); Stokes ex rel. K.F. v. U.S.

Dep’t. of Educ., No. 05-11764, 2006 WL 1892242, at *2 (D. Mass.

July 10, 2006); Coachella Valley Unified Sch. Dist. v. California,

No. 05-02657, 2005 WL 1869499, at *2 (N.D. Cal. Aug. 5, 2005);

Fresh Start Acad. v. Toledo Bd. of Educ., 363 F. Supp. 2d 910, 916

(N.D. Ohio 2005); Ass’n of Cmty. Orgs. v. N.Y. City Dep’t of

Educ., 269 F. Supp. 2d 338, 344-47 (S.D.N.Y. 2003).

18

a number of explanations, see 20 U.S.C. § 6316(b)(6), including an

explanation of “the parents’ option to transfer their child to another

public school . . . or to obtain supplemental educational services for

the child,” id. § 6316(b)(6)(F). In addition, under 20 U.S.C. §

6311(h)(6), at the beginning of each school year, and regardless of

whether the school is identified as in need of improvement, “a local

educational agency that receives funds under this part shall notify

the parents of each student attending any school receiving funds

under this part that the parents may request, and the agency will

provide the parents on request . . . , information regarding the

professional qualifications of the student’s classroom teachers.” Id.

§ 6311(h)(6)(A). Appellants also seek to enforce their “right to

request and/or receive SES” (J.A. 36) under 20 U.S.C. §

6316(e)(1)-(2), which states that in the event a school is identified

for “improvement,” “corrective action,” or “restructuring,” “the

local educational agency serving such school shall . . . arrange for

the provision of supplemental educational services to eligible

children in the school from a provider with a demonstrated record

of effectiveness, that is selected by the parents.” Id. § 6316(e)(1).

As did the statutory provisions in Sabree, these statutory

provisions clearly and unambiguously obligate the State to provide

certain notices and to provide supplemental educational services to

students when requested. This, however, does not end our inquiry,

because while the provisions create law, “[w]hether the same

provisions confer rights, enforceable by individuals, is another

question.” Sabree, 367 F.3d at 189.

To answer that question, we are required to determine

whether the provisions at issue here pass the “Blessing test,” that

is, whether (1) appellants were the intended beneficiaries of these

provisions, (2) the rights sought to be enforced by appellants are

specific and enumerated rather than vague and amorphous, and (3)

the obligation imposed on the State is “unambiguous and binding.”

Id. For the reasons that in Sabree we found the Medicaid Act to

pass this test, the NCLBA’s provisions also pass muster. Thus, it

is plain from the terms of those provisions that students and their

parents are intended to benefit from them, that the rights sought to

be enforced are specific in that the provisions spell out precisely

what types of notice and supplemental educational services must

be given and when, and that the obligation imposed on the State is

19

unambiguous and binding. Again, however, our inquiry does not

end with those conclusions.

[T]he Blessing Test may only indicate that plaintiffs

“fall[ ] within the general zone of interest that the

statute is intended to protect; something less than

what is required for a statute to create rights

enforceable directly from the statute itself . . . .” To

ensure that Congress unambiguously conferred the

rights asserted, we must determine whether Congress

used “rights-creating terms.”

Id. at 189-90 (quoting Gonzaga, 536 U.S. at 283-84) (second

brackets in original).

At this stage in Sabree, we found that Congress had used

rights-creating language in the relevant Medicaid Act provisions

based on the fact that those provisions were essentially

indistinguishable from the language used in Title VI of the Civil

Rights Act of 1964 and Title IX of the Education Amendments of

1972—the two exemplars of rights-creating language cited by the

Gonzaga Court. In contrast, however, the terms used in the

relevant provisions of the NCLBA, while admittedly similar in

some ways to the Medicaid Act’s provisions, are materially

distinguishable from the language found in Titles VI and IX. The

command used in those statutes—“No person . . . shall . . . be

subjected to discrimination”—makes its one and only subject a

“person.” In the NCLBA, there are two subjects: the primary

subject is always the State and the “local educational agency,”

while “the parents of each student” are the secondary subject—they

benefit from the provision but only as a result of regulation

imposed upon the State and its actors. Stated somewhat

differently, the focus of the NCLBA is on the entity regulated and

is at least one step removed from the interests of individual

students and parents, whereas the focus of the Medicaid Act is on

the individuals protected rather than the entity regulated.

As is discussed above, in § 6316(b)(6) the entity being

regulated is the local educational agency, while the students and

their parents are the beneficiaries of that regulation. Similarly, §

6311(h)(6) states that “a local educational agency that receives

20

funds under this part shall notify the parents of each student” of

their child’s teacher’s qualifications. Once again, because it is the

local educational agency that is receiving federal funding (by way

of the State), the Act’s primary focus is on the regulation of the

agency. The students and parents benefit secondarily from that

regulation. So, too, with § 6316(e)(1). In the event a school is

identified as needing improvement, corrective action, or

restructuring, “the local educational agency serving such school

shall . . . arrange for the provision of supplemental educational

services to eligible children.” 20 U.S.C. § 6316(e)(1).

Similarly, the supplemental educational services provisions

focus on students in the aggregate, and on the lowest-achieving

students and students from low-income families more specifically.

In either instance, the focus is not on the individual. Section

6316(e)(1) states that local educational agencies are obligated to

arrange for the provision of supplemental educational services to

“eligible children.” Section 6316(b)(10)(C) states that if the

applicable local educational agency does not have sufficient funds

to provide supplemental educational services to all eligible

children, the lowest-achieving students shall be prioritized.

Moreover, both of these restrictions are in addition to the State’s

overarching right to waive a local educational agency’s obligation

to provide any supplemental educational services under certain

circumstances. Id. § 6316(e)(10)(A). By prioritizing certain

students (low-income and the lowest-achieving) over others

(higher-income and better-performing), the Act is focusing in the

aggregate and not on any individual student’s right to receive

supplemental educational services.6 This sort of prioritization is

akin to the Blessing Court’s conclusion that no private right of

action existed under the statute at issue there because, at least in

part, it focused on systemwide performance.

Moreover, as previously indicated, the provisions of the

Medicaid Act with which we were concerned in Sabree dealt with

what are essentially financial benefits, since the “medical

6

Because Congress did not confer any individual rights

under the Act, we need not reach the question of whether Congress

evinced an intent to preclude individual suits. See Sabree, 367

F.3d at 193.

21

assistance” that the State was obligated to provide under those

provisions is defined as “payment of part or all of the cost of the

[specified] care and services . . . for individuals . . . who are

[eligible.]” 42 U.S.C. § 1396d(a)(15). We observed in Sabree that

the Supreme Court made a point in Gonzaga of distinguishing

precedent that dealt with statutes extending monetary benefits to

individuals. Sabree, 367 F.3d at 185. In particular, we noted, the

Court distinguished Wilder v. Virginia Hospital Assoc., 496 U.S.

498 (1990), because the issues there focused on certain provisions

of the Medicaid Act that, among other things, “explicitly conferred

specific monetary entitlements upon the plaintiffs” and “required

States to pay an ‘objective’ monetary entitlement to individual

health care providers, with no sufficient administrative means of

enforcing the requirement against States that failed to comply[.]”

Id. at 185 (quoting Gonzaga, 536 U.S. at 280-81, and Wilder, 496

U.S. at 522-23). Here, the benefits at issue are essentially non-

monetary, consisting chiefly of notice and information obligations

of the State that redound to the benefit of students and their

parents.7

We must look, finally, at the overall structure of the Act. In

Sabree, we found that other provisions within the Medicaid Act

gave us some pause because they spoke in terms of an “agreement

between Congress and a particular state.” 367 F.3d at 191. We

nonetheless found that those other provisions—the Medicaid Act’s

appropriations and general introductory statement and its

enforcement provision—could not “neutralize” the rights-creating

language we had found in the specific provisions at issue. Id. at

192. The NCLBA’s general structure, including its introductory

statement, its appropriations provisions, and its enforcement

provision, also speak in terms of an agreement between Congress

and a particular State.

The Act’s introductory statement states that its purpose is

“to ensure that all children have a fair, equal, and significant

7

The supplemental educational services obligations no

doubt have real cash consequences, but those obligations, too, are

unlike monetary benefits, as they are waiveable by the State and

may be provided directly by local educational agencies rather than

being paid for by the State.

22

opportunity to obtain a high-quality education.” 20 U.S.C. § 6301.

While the reference to “all children” could ostensibly be read as a

proclamation that each and every child shall have certain rights,

Congress did not refer to the individual rights of each and every

child. Indeed, the language that follows focuses on effecting this

purpose by “holding schools, local educational agencies, and States

accountable for improving the academic achievement of all

students.” Id. § 6301(4). The focus of this introductory statement,

then, is on producing benefits to certain beneficiaries (school

children) through the regulation of State actors (the local

educational agencies). It thus speaks in terms of an “agreement

between Congress and a particular state.” Sabree, 367 F.3d at 191.

The NCLBA’s general appropriations and enforcement

provisions also evince an agreement between Congress and the

States, rather than the creation of individual rights. The

appropriations provision makes no mention of individuals; it

simply states that for purposes of carrying out parts of the Act,

Congress shall appropriate to State agencies certain amounts of

money in each subsequent fiscal year. 20 U.S.C. § 6302(a). And

as in Sabree, where the Medicaid Act’s enforcement provision

“empower[ed] the Secretary of HHS to suspend payments to a state

if it fails to ‘comply substantially’ with the requirements of Title

XIX,” the NCLBA’s enforcement provision “creates a relationship

between Congress and a particular state.” Sabree, 367 F.3d at 191-

92. It provides that “[i]f a State fails to meet any of the

requirements of this section, . . . then the Secretary may withhold

funds for State administration under this part until the Secretary

determines that the State has fulfilled those requirements.” 20

U.S.C. § 6311(g)(2).

Read in concert with the less-than rights-creating language

used in the notice and supplemental educational services

provisions, the overall structure of the Act supports the conclusion

that Congress did not intend to confer enforceable individual rights

under those provisions. Again we note the contrast between this

case and Sabree, in which we observed that our decision about a

private right of action was buttressed by Supreme Court precedent

addressing the identical language at issue in that case. Sabree, 367

F.3d at 192 (“Our confidence in this conclusion rests securely on

the fact that the Court has refrained from overruling [decisions]

23

which upheld the exercise of individual rights under statutes that

contain similar (or, in the case of Wilder, identical) provisions to

[the statutory provision at issue].”). There is no such Supreme

Court precedent favoring appellants here. On the contrary, the

closest analog is Gonzaga, which supports the conclusion that there

is no private right of action.

We mentioned, as we began our discussion, that, without

exception, the district courts that have considered the issue we have

considered have reached the same conclusion we reach. We close

our discussion with mention of but one of those decisions, a

decision we find to be particularly thorough and very much on

point: Association of Community Organizations for Reform Now

v. New York City Department of Education, 269 F. Supp. 2d 338

(S.D.N.Y. 2003). In that decision, the District Court, applying

Gonzaga, held that “the notice, transfer and SES provisions do not

contain the kind of ‘rights-creating’ language that the Supreme

Court has deemed ‘critical to showing the requisite congressional

intent to create new rights.’” Id. at 344 (quoting Gonzaga, 536

U.S. at 287.)

Of greatest importance to the District Court was the fact

that, in its view, those provisions “focus on two entities—states and

local educational agencies—and the restrictions that flow from

their decisions to receive NCLBA funding.” Id. Thus,

[t]he NCLBA is drafted to focus on the regulation of

these entities and not on conferring any direct

benefit, entitlement or right upon individual[s], such

as parents and students. Congress, well aware of

how to confer entitlements on individuals, could

have drafted the NCLBA to provide that parents

have the right to transfer their children or that

students have the right to receive SES, but instead

focused on what states and local educational

agencies must provide to parents and children and on

regulating the states and local educational agencies.

Id. Under Gonzaga, the Court continued, where a statute focuses

on the entity to be regulated (here, the States and local educational

agencies) and the benefit to be conferred on an individual is

24

secondary, i.e., it flows to individuals as a result of the regulation

of the States and local educational agencies, Congress has not

created the type of individual entitlement that characterize the

unambiguous intent to create personal rights.

Next, the District Court found that the Act’s transfer and

supplemental educational services provisions at issue have only an

aggregate focus; they are not concerned with whether the needs of

any particular person have been satisfied. The Court explained:

[B]oth the transfer and SES provisions give priority

for receiving those benefits to children from low-

income families. This indicates that Congress was

concerned with improving the educational conditions

of children as a whole, and specifically, the

condition of the subset of children from lower

income families, rather than ensuring that each

individual child was provided with a right to transfer

out of a failing school or a right to receive SES. In

addition, with respect to the transfer provisions, the

terms and conditions on transfers can be altered

collectively for an entire group of students because

the local educational agency can enter into

cooperative agreements with other local educational

agencies, but those agreements are required only “to

the extent practicable” and depend on the agreement

of other local educational agencies. The same is true

of the ability of children to receive SES, which the

local educational agency may choose to waive on

behalf of all of its students. The decisions whether

to seek a waiver or to enter into cooperative

agreements cannot be made by individual students,

and are collective judgments that affect all students

attending failing schools under the control of the

local educational agency. As such, the NCLBA has

an aggregate focus, which indicates that Congress

did not intend to create individually enforceable

rights under the statute.

25

Id. at 3458 (citations omitted).

Finally, the District Court found that the nature of the Act’s

enforcement mechanism supported the conclusion that Congress

did not intend to create individual rights. The Act contains no

procedures—administrative or judicial—by which individuals can

enforce violations of its notice, transfer, or supplemental

educational services provisions. Instead, only the Secretary of

Education can enforce a State’s violation of the Act. Again, the

Court quoted Gonzaga, where the enforcement scheme of FERPA

was similarly centralized in the Secretary of Education: “‘[i]t is

implausible to presume that the Congress nonetheless intended

private suits to be brought before thousands of federal-and state-

court judges . . . .’” Id. at 346 (quoting Gonzaga, 536 U.S. at 290).

IV. Conclusion

We hold that Congress did not intend to give individuals a

right to enforce the notice and supplemental educational services

provisions of the Act. We will affirm the Order of the District

Court.

8

As this passage makes clear, plaintiffs sought to enforce

their alleged right to receive supplemental educational services and

to transfer schools. Appellants in the case before us, however, seek

to enforce a right to receive the former; they do not seek to enforce

a right to transfer schools but only a right to receive notice of their

ability to transfer. (Appellants’ Br. 27 n.5.)

26