Sonya Renee v. Margaret Spellings

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

JOHNSON, a minor by Deanna

Bolden, her guardian ad litem;

 D.C. No.

3:07-CV-04299-PJH

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.



9463

9464 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 July 23, 2009

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

Richard C. Tallman, Circuit Judges.

Opinion by Judge D.W. Nelson;

Dissent by Judge W. Fletcher

9466 RENEE v. DUNCAN

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.

OPINION

D.W. NELSON, Senior 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 object to the

Secretary’s regulation permitting teachers participating in

alternative route programs to be considered “highly qualified”

1

Pursuant to Fed. R. App. P. 43(c)(2), Secretary Arne Duncan is auto-

matically substituted for former Secretary of Education Margaret Spellings

as Respondent in this case.

RENEE v. DUNCAN 9467

under the No Child Left Behind Act (“NCLB”). We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate the

district court’s order because appellants lack standing.

FACTUAL AND PROCEDURAL BACKGROUND

I. Overview of the No Child Left Behind Act

Since 2002, NCLB has served as the current version of the

Elementary and Secondary Education Act, first enacted in

1965, which provides the basis for federal education policy.

The overarching goal of NCLB 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 also

aims to 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). Although the standard of proficiency is determined

by each state, NCLB mandates that the state deliver to all of

its children the resources to meet that standard. Id.

§ 6311(b)(1)(A), (B). The Secretary is vested with the author-

ity to enforce NCLB and may withhold funds or take other

enforcement action if a state fails to comply substantially with

the Act’s requirements. Id. § 1234c. However, each state is

responsible for ensuring the compliance of its local school

districts. Id. §§ 1232c, 7844(a).

NCLB distributes funds to states and schools under two

sections relevant to this appeal. Title I funds are used to sup-

plement the educational needs of low-income students. Id.

§ 6301 et seq. Title II funds are used to “increas[e] the num-

ber of highly qualified teachers in the classroom.” Id.

§ 6601(1).

9468 RENEE v. DUNCAN

II. NCLB Teacher Qualifications

The Secretary has stated that an essential component of

academic achievement and accountability is that students be

taught by “highly qualified” teachers. Letter from Margaret

Spellings to Chief State School Officers (Oct. 21, 2005),

available at http://www.ed.gov/policy/elsec/guid/secletter/

051021.html. “[T]eacher quality is one of the most important

factors in improving student achievement and eliminating

these achievement gaps.” Id.

Congress provided that, by the end of the 2005-06 aca-

demic year, only “highly qualified” teachers (“HQT”) would

instruct core academic classes in states receiving federal fund-

ing (the “100% HQT requirement”). 20 U.S.C.

§ 6319(a)(2)(A).2 To ensure that states and districts are on

track to meet the 100% HQT requirement, NCLB also

required that, beginning with the 2002-03 school year, new

hires be “highly qualified.” Id. § 6319(a)(1). It is undisputed

that, to date, some of California’s school districts have not

met the 100% HQT requirement.

States and school districts must develop plans to meet these

mandates. Id. §§ 6311(a)(1), 6311(b)(8)(C), 6319(a)(2) (state

plans); id. §§ 6312(b)(1)(N), 6312(c)(1)(I), 6319(a)(3) (local

plans). Where states and districts do not meet the 100% HQT

requirement, NCLB mandates that “poor and minority chil-

dren” not be taught by “inexperienced, unqualified, or out-of-

field teachers” “at higher rates than other children.” Id.

§ 6311(b)(8)(C).

NCLB also contains several reporting requirements. States

and school districts are required to report annually accurate

2

“Core academic subjects” are “English, reading or language arts, math-

ematics, science, foreign languages, civics and government, economics,

arts, history, and geography.” 20 U.S.C. § 7801(11); 34 C.F.R.

§ 200.55(c).

RENEE v. DUNCAN 9469

information regarding their progress towards meeting the

100% HQT requirement. Id. §§ 6311(h)(1)(C)(viii),

6311(h)(2), 6319(b)(1)(A). States must also provide this

information to the Secretary, id. §§ 6311(h)(4)(G),

6319(b)(1)(B), who then reports to Congress the nationwide

statistics on “highly qualified” teachers, id. § 6311(h)(4), (5).

Additionally, schools receiving Title I funds must inform a

parent when a non-HQT teaches his or her child for more than

four weeks. Id. § 6311(h)(6)(B)(ii).

A. NCLB’s Definition of “Highly Qualified”

In addition to requiring that all HQTs have a B.A. and com-

petence in their subject matter, Congress defined “highly

qualified” to mean that:

(i) 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

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; and

(ii) the teacher has not had certification or licensure

requirements waived on an emergency, temporary,

or provisional basis.

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

define the term “full State certification.”

B. The Secretary’s Regulation

On December 2, 2002, the Secretary issued final regula-

tions defining the term “highly qualified.” 34 C.F.R. § 200.56.

The regulation at issue states that a teacher can be “highly

9470 RENEE v. DUNCAN

qualified” under NCLB if the teacher “[i]s participating in an

alternative route to certification program,”3 id.

§ 200.56(a)(2)(ii), and demonstrates “satisfactory progress

toward full certification as prescribed by the State,” id.

§ 200.56(a)(2)(ii)(4) (the “regulation”). The regulation, like

20 U.S.C. § 7801, has other requirements which are not at

issue here.

III. California Education Law

A. Credentials

In California, a fully certified teacher may work in almost

any school district for an extended period of time. California

Commission on Teacher Credentialing, Multiple Subject

Teaching Credential, Requirements for Teachers Prepared in

California (Leaflet No. CL-561C), available at

http://www.ctc.ca.gov/credentials/leaflets.html. There are two

levels of full state certification depending on years of experi-

ence. See id.; Cal. Educ. Code § 44274.2. A teacher who com-

pletes the preparation requirements initially receives a

“preliminary” credential, Cal. Educ. Code § 44274.2(a),

which is valid for five years, id. § 44251(b)(2). These prepa-

ration requirements include, inter alia, “[s]atisfactory comple-

tion of a program of professional preparation,” id.

§ 44251(b)(3), which includes “[i]nternship programs,” id.

§ 44259(b)(3)(C), or completion of a more traditional pro-

gram where teaching, training, and education are combined,

id. § 44259(b)(3)(A), (B). A teacher receives the same prelim-

inary credential regardless of the “program of professional

preparation.” Id. §§ 44259(a), 44274.2. After two years of

teaching with the “preliminary” credential, a teacher may

receive the “clear” credential, id. § 44274.2(c), which is valid

for five years but may be renewed, id. § 44251(b)(3).

3

Alternative route programs are alternatives to the traditional college-

based teacher education program routes for obtaining teacher certification.

Amicus curiae Teach for America is one such program.

RENEE v. DUNCAN 9471

Below the full credentials are a series of subordinate cre-

dentials. See A.B. 351, 1997 Reg. Sess., at 2 (Cal. 1997)

(teachers in “internships . . . receive systematic support and

training as they advance toward full certification”), available

at http://www.leginfo.ca.gov/pub/97-98/bill/asm/ab_0351-

0400/ab_351_bill_19971012_chaptered.pdf; Bakersfield

Teachers Assoc. v. Bakersfield City Sch. Dist., 52 Cal. Rptr.

3d 486, 501 (Cal. Ct. App. 2006) (observing that interns have

“something less than a regular credential”). The “intern” cre-

dential, for example, permits individuals who have not com-

pleted their alternative teacher preparation program (i.e. are

participating in their programs) to teach only in a single

school district, Cal. Educ. Code §§ 44325, 44463, and only

for a period of two years, id. § 44251(b)(1). Indeed, California

law requires that districts hire preliminary or clear credential

holders whenever they are available ahead of intern credential

holders. See Cal. Educ. Code § 44225.7(a), (e).

B. California’s NCLB Implementing Regulations

California has promulgated “highly qualified” teacher regu-

lations in order to implement NCLB. Under California law,

“[a] teacher who meets NCLB requirements at the middle or

secondary levels is one who . . . [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).4

IV. Proceedings Below

In August of 2007, appellants—several California public

school students and their parents, joined by two California

community organizations—brought an Administrative Proce-

4

California has slightly different NCLB requirements for elementary

school teachers. For those teachers, a teacher meets NCLB requirements

if he is “currently enrolled in an approved intern program for less than

three years or has a credential.” Cal. Code Regs. tit. 5, § 6101(2). This dis-

tinction, however, is immaterial to the resolution of the case.

9472 RENEE v. DUNCAN

dure Act (“APA”) challenge in the U.S. District Court for the

Northern District of California against the Secretary, alleging

that the regulation is inconsistent with NCLB, and requesting

declaratory and injunctive relief. Appellants allege that they

have been harmed by the regulation because, in the years

since the regulation was issued, California and its school dis-

tricts have hired thousands of alternative route participants,

allowed these teachers to be concentrated in low-income and

minority areas, and treated the teachers as highly qualified for

reporting and parental notification purposes.

Both parties moved for summary judgment, and, on June

17, 2008, the district court entered an order granting summary

judgment in favor of the Secretary. A timely appeal followed.

STANDARD OF REVIEW

We review de novo the district court’s grant of summary

judgment. Ctr. for Biological Diversity v. U.S. Fish & Wild-

life Serv., 450 F.3d 930, 941 n.17 (9th Cir. 2006). “The agen-

cy’s interpretation of a statute is a question of law reviewed

de novo.” Forest Conservation Council v. Rosboro Lumber

Co., 50 F.3d 781, 783 (9th Cir. 1995).

ANALYSIS

For the first time on appeal, the Secretary argues that appel-

lants’ injury is not redressable, and therefore, appellants lack

constitutional standing.5 A “challenge to constitutional stand-

ing,” however, may be raised any time and must be consid-

ered. See Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1085

(9th Cir. 2003).

5

At the district court, the Secretary raised a different standing argument:

that appellants lacked standing because under California law, interns do

have full state certification. The Secretary does not raise that argument on

appeal.

RENEE v. DUNCAN 9473

Appellants argue that the Secretary’s regulation of the

states, in this case California, has harmed them. Under § 702

of the 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 entitled to

judicial review thereof.” 5 U.S.C. § 702. “To establish stand-

ing to sue under the APA, appellants must first meet the ‘irre-

ducible constitutional minimum of standing [which] contains

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

hood 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.

[1] A plaintiff meets the redressability test if it is “likely”—

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

decision.” Id. (internal quotations omitted); Bonnichsen v.

United States, 367 F.3d 864, 873 (9th Cir. 2004). Although

“[a] purely speculative favorable outcome will not suffice,”

Rubin v. City of Santa Monica, 308 F.3d 1008, 1020 (9th Cir.

2002) (internal quotation omitted), “[p]laintiffs need not dem-

onstrate that there is a ‘guarantee’ that their injuries will be

redressed by a favorable decision,” Graham v. Fed. Emer-

gency Mgmt. Agency, 149 F.3d 997, 1003 (9th Cir. 1998); see

also Utah v. Evans, 536 U.S. 452, 464 (2002) (redressability

met where court-ordered “change in a legal status” results in

a “significant increase in the likelihood that plaintiff would

obtain relief”).

[2] 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 requiring the action will redress it.” Lujan, 504

U.S. at 561-62. “When, however, as in this case, a plaintiff ’s

asserted injury arises from the government’s allegedly unlaw-

9474 RENEE v. DUNCAN

ful regulation (or lack of regulation) 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).

[3] Appellants argue that a declaration stating that the alter-

native route regulation is “unlawful and void,” would likely

cause California to cease treating alternative route participants

as highly qualified. Both parties agree that whether alternative

route participants hold “full State certification as a teacher

(including certification obtained through alternative routes to

certification)” is a matter of state law. 20 U.S.C.

§ 7801(23)(A)(i). Thus, redressability turns on whether,

absent the regulation, California would consider teachers par-

ticipating in alternative routes to be fully certified.6

6

As an initial matter, the Secretary argues that this court cannot examine

California law to determine whether it considers alternative route partici-

pants fully certified because “a court cannot properly issue judgments on

such matters in the absence of a state defendant.” This argument is merit-

RENEE v. DUNCAN 9475

[4] Although it seems likely that California treats interns

and other alternative program participants differently from

fully credentialed teachers, like those holding “preliminary”

and “clear” credentials, this does not end the redressability

inquiry. The problem here is that because the meaning of full

certification is a matter of state law, California could still

determine, as it has already, that teachers participating in

alternative routes to certification were “highly qualified” even

if the federal regulation was declared void. See Bennett v.

Spear, 520 U.S. 154, 169 (1997) (“[I]t does not suffice if the

injury complained of is the result of the independent action of

some third party not before the court.”) (internal quotations

omitted); Lujan, 504 U.S. at 568-69 (finding redressability

lacking because even if the court ordered government to

revise the challenged regulation, “this would not remedy

respondents’ alleged injury” because the third parties affected

by the regulation were unlikely to be bound by it). In other

words, California could continue to adhere to Cal. Code Regs.

tit. 5, §§ 6110, 6101, which state that a teacher “currently

enrolled in an approved intern program” “meets NCLB

requirements.”

We acknowledge that “injury produced by determinative or

coercive effect upon the action of someone else” may be suf-

ficient for standing. Bennett, 520 U.S. at 169; Tozzi v. U.S.

less. As a matter of course, federal courts interpret and apply state laws.

This is true not only in diversity cases, but also where, as here, a federal

question turns on a matter of state law. See, e.g., De Sylva v. Ballentine,

351 U.S. 570, 580-81 (1956) (defining the word “children” in a federal

statute according to state law); Desai v. Mukasey, 520 F.3d 762, 766 (7th

Cir. 2008) (federal court applied state criminal law where “there is explicit

reference to state law in the text of the [federal] statute”); Dias v. Elique,

436 F.3d 1125, 1132 (9th Cir. 2006) (court applied Nevada law in § 1983

action to determine whether a federally recognized property interest and

qualified immunity existed); Rains v. Criterion Sys., Inc., 80 F.3d 339,

343-44 (9th Cir. 1996) (court applied California law to determine whether

state law claims arose under federal law for jurisdictional purposes).

9476 RENEE v. DUNCAN

Dep’t of Health and Human Servs., 271 F.3d 301, 309 (D.C.

Cir. 2001) (When “the alleged injury flows not directly from

the challenged agency action, but rather from independent

actions of third parties, we have required only a showing that

the agency action is at least a substantial factor motivating the

third parties’ actions.”) (internal quotations marks omitted).

Appellants argue that if the regulation is voided, California

will be obligated to change its regulations accordingly. In

other words, alternative route participants may no longer be

“highly qualified” under California law. As an initial matter,

because California is not party to this suit, and has therefore

not offered its views, this court may only speculate what, if

anything, California would do.7

It is true that, even after acknowledging the regulation’s

effect of considering participants in alternative programs as

“highly qualified teachers,” California maintains a distinction

between participants and teachers with full credentials. See

Cal. Code Regs. tit. 5 § 6110 (“A teacher who meets NCLB

requirements” is one who either is “currently enrolled in an

approved intern program for less than three years or has a full

credential.”) (emphasis added). It is also true that California

changed its laws to comply with “NCLB and its implementing

regulations” so that interns could be considered “highly quali-

fied” and “meet NCLB requirements.” See id. §§ 6101, 6110;

Cal. Educ. Code. § 44325(f) (requiring Commission on

Teacher Credentialing to “ensure that each district internship

program . . . provides program elements to its interns as

7

It is worth noting that appellants may be unable to sue California for

failure to comply with NCLB. See, e.g., Newark Parents Ass’n v. Newark

Pub. Sch., 547 F.3d 199, 214 (3d Cir. 2008) (holding that “Congress did

not intend to give individuals a right to enforce . . . [specific] provisions

of . . . [NCLB]”); cf. Flores v. Arizona, 516 F.3d 1140, 1176 n.47 (9th Cir.

2008), rev’d and remanded on other grounds, Horne v. Flores, ___ S. Ct.

___, 2009 WL 1789470 (June 25, 2009) (Although the court did “not

decide whether NCLB affords an implied right of action,” it did “note that

some courts have concluded it does not.”).

RENEE v. DUNCAN 9477

required by the federal NCLB and the implementing regula-

tions”). Appellants argue that because California changed its

laws to comply with NCLB and the Secretary’s regulations

once, it will do so again if the regulation is revoked.

[5] However, appellants cite no other evidence that Califor-

nia will follow the Secretary’s lead if the regulation is voided.

Beyond the fact that California changed its state regulation to

adhere to the Secretary’s regulation one time, there is simply

no evidence that the revocation of the regulation would have

a coercive effect upon California. Although appellants state

that California would be obligated to comply because it

receives federal funding, Congress has made it clear that the

Secretary may not tie federal funding to certification stan-

dards. See 20 U.S.C. § 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 certification of teachers or education paraprofessionals.”);

id. § 7910(b) (“The Secretary is prohibited from withholding

funds from any State educational agency or local educational

agency if the State educational agency or local educational

agency fails to adopt a specific method of teacher or para-

professional certification.”). Because it is undisputed that the

interpretation of “full State certification” is a matter of state

law, and that, therefore, a state can essentially decide what

constitutes a “highly qualified teacher,” it is unlikely that the

revocation of the regulation will have a “coercive effect”

upon California. Instead, appellants’ injury is likely “the

result of . . . [California’s] independent action . . . [who is] not

before the court.” Bennett, 520 U.S. at 169 (internal quota-

tions omitted). Accordingly, appellants have failed to meet

their burden of establishing redressability.8

8

Although the dissent concludes that appellants have standing, there is

no disagreement based on the law. Instead, the panel disagrees as to what

the record suggests California would do in the event the regulation is

struck down. Nonetheless, it is appellants’ burden to establish standing,

Lujan, 504 U.S. at 561, and we conclude they have failed to carry that bur-

9478 RENEE v. DUNCAN

Appellants rely heavily on Bennett, but that case is inappo-

site. In Bennett, plaintiffs challenged a Biological Opinion

produced by the Fish & Wildlife Service (“FWS”) and pro-

mulgated pursuant to the Endangered Species Act of 1973

(“ESA”), that would be applied to the Bureau of Reclamation,

the agency committing the alleged injury. Id. at 157. The Bio-

logical Opinion “specif[ied] the impact of such incidental tak-

ing on . . . [any threatened] species, any reasonable and

prudent measures that . . . [FWS] considers necessary or

appropriate to minimize such impact, and set[ ] forth the

terms and conditions that must be complied with by the Fed-

eral agency to implement [those] measures.” Id. at 158 (quot-

ing 16 U.S.C. § 1536(b)(4)). The Supreme Court determined

that the plaintiffs’ harm was redressable. Id. at 170. Although

the Bureau was “technically free to disregard the Biological

den. It is not just that California could change its state-law definition of

“full credential” to include alternative route participants. Even if the regu-

lation was struck down, existing California regulations would continue to

credit an intern as “[a] teacher who meets NCLB requirements.” Cal. Code

Regs. tit. 5, § 6110(2); see also id. § 6101(2). California would have to

strike down these regulations for appellants to have standing, but nothing

requires the state to do so.

The dissent argues that “current California regulations piggy-back on

200.56,” and thus, “if 200.56 is struck down[,] . . . an alternative route par-

ticipant would not be fully certified under NCLB unless and until Califor-

nia takes affirmative action to change its statutes or regulations.” We

disagree. It may be that sections 6101 and 6110, California’s NCLB

implementing regulations, were enacted to conform to 200.56. But there

is nothing in sections 6101 or 6110 that ties their validity to that of 200.56.

Indeed, 200.56 is not mentioned in either section 6101 or 6110, even

though these sections were enacted after 200.56. And although a reference

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

§ 7801(23), is included in the “Reference” section of the notes to the statu-

tory text, the “Authority cited” for sections 6101 and 6110 is Cal. Educ.

Code § 12001, Cal. Code Regs. tit. 5, § 6110, Note; id. § 6101, Note,

which gives the State Board of Education authority “to adopt rules and

regulations for the allocation of federal funds,” but nowhere requires it to

conform these “rules and regulations” to the federal regulations, see Cal.

Educ. Code § 12001.

RENEE v. DUNCAN 9479

Opinion and proceed with its proposed action,” the Bureau

ignored the Biological Opinion “at its own peril (and that of

its employees) for any person who knowingly . . . [ignored

and acted contrary to the Incidental Take Statement], [wa]s

subject to substantial civil and criminal penalties, including

imprisonment.” Id. Here, on the other hand, there are no “sub-

stantial civil and criminal penalties.” Although appellants

argue that California could be swayed because it has “ac-

cepted billions of dollars in federal funding,” they offer no

support for this position, nor does it appear that they could.

See 20 U.S.C. § 7910(a), (b).

This case is closer to Lujan, where respondents challenged

a regulation interpreting § 7 of the Endangered Species Act

(“ESA”). 504 U.S. at 557-58. Section 7(a)(2) of the ESA

requires each federal agency to consult with the Secretaries of

Commerce and Interior to ensure that any action funded by

the agency is not likely to jeopardize the continued existence

or habitat of any endangered or threatened species. Id. at 558.

The Secretaries issued a revised joint rule limiting the sec-

tion’s geographic scope to the United States and the high seas.

Id. at 558-59. Respondents sued, claiming that they were

injured because the “lack of consultation with respect to cer-

tain funded activities abroad increases the rate of extinction of

endangered and threatened species.” Id. at 562. The Supreme

Court held, inter alia, that Respondents’ harm was not

redressable. Id. As here, Respondents chose to challenge the

Secretary’s regulation, not the entities actually causing the

alleged harm. Id. at 568. “Since the agencies funding the proj-

ects were not parties to the case, the . . . [court] could accord

relief only against the Secretary: He could be ordered to

revise his regulation to require consultation for foreign proj-

ects.” Id. “But this would not remedy respondents’ alleged

injury unless the funding agencies were bound by the Secre-

tary’s regulation,” which the Court determined they were not.

Id.

9480 RENEE v. DUNCAN

The situation here is similar. This court could order a revi-

sion of the regulation, but California is free to disregard the

Secretary. It is undisputed that NCLB leaves to the states dis-

cretion over which teachers constitute “highly qualified teach-

ers” because “full State certification” is purely a matter of

state law. Therefore, appellants have not demonstrated that it

is likely the injury they complain of would be redressed by a

favorable decision.9 See Lujan, 504 U.S. at 561.

CONCLUSION

We conclude that appellants have failed to meet their bur-

den of establishing redressability. Accordingly, we vacate the

district court’s order for lack of jurisdiction.

9

Even if appellants could establish sufficient redressability, they would

still have to establish sufficient injury. DBSI/TRI IV Ltd. P’Ship, 465 F.3d

at 1038. Their injury must be “real and immediate, not conjectural or

hypothetical.” City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (cita-

tions omitted). It is unclear whether fully certified teachers provide a bet-

ter education than teachers participating in alternative route programs.

Compare Kati Haycock, GOOD TEACHING MATTERS: 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, Winter 2007,

at 64 (2007) (noting that “a teacher’s certification status matters little for

student 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) (“National studies have . . . found

that differences in teachers’ qualifications—including teachers’ general

ability, knowledge of subject matter, preparation for teaching, and certifi-

cation 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.”). Therefore, appellants may not be

able to establish a “real and immediate” injury. However, we need not

decide the question of injury in fact because we conclude appellants have

failed to show redressability.

RENEE v. DUNCAN 9481

VACATED and REMANDED with instructions to dismiss.

W. FLETCHER, Circuit Judge, dissenting:

I respectfully dissent. I would hold that the appellants have

standing to sue under Article III.

The No Child Left Behind Act (“NCLB”) includes in its

definition of “highly qualified teacher” someone who “has

obtained full State certification as a teacher (including certifi-

cation obtained through alternative routes to certification).”

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

challenged in this appeal expands this part of the definition of

“highly qualified teacher” to include someone who has not

obtained, but is still in the process of obtaining, full state cer-

tification. 34 C.F.R. § 200.56. In relevant part, § 200.56 pro-

vides, “A teacher meets the requirements [of a highly

qualified teacher] if the teacher . . . [i]s participating in an

alternative route to certification program under which [t]he

teacher . . . [d]emonstrates satisfactory progress toward full

certification as prescribed by the State[.]” (emphasis added).

NCLB requires states to “ensure that all teachers teaching

in core academic subjects within the State are highly quali-

fied.” 20 U.S.C. § 6319(a)(2). If a state cannot meet this

requirement, it must ensure that “poor and minority children

are not taught at higher rates than other children by inexperi-

enced, unqualified, or out-of-field teachers.” Id.

§ 6311(b)(8)(C). The practical effect of § 200.56 is to permit

a State to hire so-called “alternative route participants” who

are still in the process of obtaining full certification, and to

then concentrate those alternative route participants in low-

income and minority area schools.

Appellants are California public school students and their

parents, as well as two community organizations. They allege

9482 RENEE v. DUNCAN

that § 200.56 is invalid under NCLB. They further allege that

they are injured by § 200.56 because it has resulted in a dis-

proportionately high concentration of alternative route partici-

pants in their schools. This, they contend, has resulted in the

student appellants receiving poorer quality education than

they would otherwise receive.

The Secretary of Education argues that appellants have no

standing under Article III. The Secretary does not argue that

alternative route participants are as well qualified as fully cer-

tified teachers. Rather, he argues that the invalidation of

§ 200.56 would have no practical effect. This is so, he argues,

because under NCLB a state is free to define “full state certi-

fication,” and once the state has done so the Secretary is

required to accept that definition. Therefore, argues the Secre-

tary, even if § 200.56 is declared invalid under NCLB, Cali-

fornia is free to change its state-law definition of full

certification to include teachers who are only in the process

of obtaining that certification. If California does that, it would

then be free to hire alternative route participants who are only

in the process of obtaining full certification, and then to con-

centrate them in low-income and minority area schools, with-

out violating NCLB. In the Secretary’s view, the likelihood of

California changing its definition of full certification in this

manner is so high as to deprive the invalidation of § 200.56

of any practical effect.

The Secretary did not make this Article III standing argu-

ment in the district court. He makes the argument for the first

time on appeal even though the record is, of course,

unchanged. The majority agrees with the Secretary’s newly

forged argument. I do not.

The Department of Education promulgated § 200.56 in

December 2002. In February 2004, the California State Board

of Education issued regulations based on the expanded defini-

tion of highly qualified teachers contained in § 200.56. The

new California regulations piggy-backed on § 200.56 to pro-

RENEE v. DUNCAN 9483

vide, in relevant part, “A teacher who meets NCLB require-

ments . . . is one who . . . [i]s currently enrolled in an

approved intern program for less than three years or has a full

credential.” Cal. Code Regs. tit. 5, §§ 6101, 6110 (emphasis

added). Under the new regulations, an intern who has not yet

received a “full credential” from California is deemed to qual-

ify as a “highly qualified teacher” under NCLB by virtue of

§ 200.56. Significantly, the new California regulations do not

change the definition of “full credential” under California

law.

The majority concludes that if we were to hold § 200.56

invalid, California would almost certainly change its state-law

definition of “full credential” to include alternative route par-

ticipants who are only in the process of receiving their full

credential. There is no basis for that conclusion. It is uncon-

tested that after the passage of NCLB but before the promul-

gation of § 200.56, California did not change its definition of

full credential, even though such a change would have permit-

ted the assignment of disproportionate numbers of alternative

route participants to low-income and minority area schools. It

is also uncontested that California promulgated its new regu-

lations only after the promulgation of § 200.56, and that when

it did so it did not include in the new regulations any change

to the state-law definition of full credential. To conclude that

California would almost certainly change its definition of full

credential after the invalidation of § 200.56, when it has not

seen fit previously to make that change, is unsupported specu-

lation.

Alternatively, the majority concludes that California would

not need to change its state-law definition of full credential if

§ 200.56 is invalidated, and that California could simply leave

in place its current regulations providing that an alternative

route participant satisfies the NCLB requirement for a fully

qualified teacher. Maj. Op. at 9477-78 n.8. But this is not true,

for the current California regulations piggy-back on § 200.56.

If § 200.56 is struck down as inconsistent with NCLB, an

9484 RENEE v. DUNCAN

alternative route participant would not be fully certified under

NCLB unless and until California takes affirmative action to

change its statutes or regulations to provide that an alternative

route participant is fully credentialed under state law.

The definition of “full certification” under California law

has important consequences beyond compliance with NCLB.

Quite independently of NCLB, fully certified teachers in Cali-

fornia are hired differently, paid differently, and provided job

security differently from teachers who are only in the process

of obtaining full certification. It is possible (though, in my

view, barely so) that California would change its definition of

full credential if § 200.56 is invalidated. The Secretary and

the majority point out, correctly, that California has the power

under NCLB to change the definition. But there is nothing in

this record to show that California is even remotely likely to

do so.

I therefore conclude that appellants have shown a sufficient

likelihood to satisfy Article III that the invalidation of

§ 200.56 would affect, to their advantage, the hiring and

assignment of alternative route participants in California.