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.