Legal Updates

SOUTH DAKOTA

In an important legal victory for the plaintiffs, the South Dakota Supreme Court ruled last week that school districts have standing to bring a constitutional challenge against the state’s system for funding public education and that they may expend public moneys to pay attorneys fees and other expenses in regard to such litigation. This unanimous decision in Olson v. Guindon reverses the contrary holding of the trial court.

In 2006, a coalition of 59 South Dakota school districts, and students and parents in those districts, had filed a lawsuit against the state, claiming that the state's education finance system fails to provide sufficient resources for the state’s students to obtain “an education that will equip them to function in society as responsible citizens who can find productive employment,” as required by the South Dakota Constitution.

In May 2007, the state attorney general requested an audit of the coalition districts. He argued that school districts did not have standing to sue the State over the constitutionality of school funding, and that school district funds could not be used to support such litigation. On the eve of the trial last August, Circuit Judge Lori S. Wilbur upheld the attorney general’s position on these issues. Plaintiff attorneys continued to provide representation at the trial to the individual plaintiffs who retained standing while the standing and funding issues were appealed to the state Supreme Court.

Last April, Judge Wilbur ruled that the resources, curriculum, and facilities currently provided to students are constitutionally sufficient, and she issued a judgment in favor of defendants on all counts. There was some concern as to whether plaintiffs would be able to pursue an appeal of this major ruling, if the school districts were to be precluded from paying for legal fees and expenses. Now presumably the appeal will go forward.

Scott Abdallah, attorney for the South Dakota plaintiffs said that he expects the appeal to be argued sometime next year, probably in the summer. Plaintiffs intend to appeal a broad number of issues, including the Court's definition of adequacy, and the findings that high quality pre-k for at risk 3 and 4 year olds is not necessary, that low income children don't require additional funding, and that there is no connection between funding and achievement.

California

An attempt by a number of California public school students and community organizations to challenge the U.S. Department of Education’s regulations concerning “highly qualified teachers” under the No Child Left Behind Act was dealt a severe blow last week when the U.S. Court of Appeals for the Ninth Circuit ruled that they lacked standing to challenge the regulation.

At issue in Renee v. Duncan is the Department’s interpretation of the statutory requirement that a “highly qualified teacher” to which all children are entitled for core academic subjects, be a teacher who has “obtained full State certification as a teacher (including certification obtained through alternate routes to certification).” The administrative regulations allow teachers who are “participating in an alternative route to certification program” and are making “satisfactory progress toward full certification” to be considered “highly qualified.” Plaintiffs claim that this interpretation perverts the statute’s meaning and allows the state to continue to assign teachers in training rather than fully credentialed teachers to provide instruction in schools attended predominantly by poor and minority children.

The trial court had upheld the Department’s interpretation of the statute. The appeals court did not even reach the substantive issues, since they held that plaintiffs had not shown sufficient legal injury to qualify them to bring the case. The reasoning was based on the fact that under the amorphous NCLB definition of “highly qualified,” which leaves it to the states to define the requirements for “full State certification,” the state, even in the absence of the challenged federal regulation, could hold that teachers participating in alternative internship programs were credentialed.

The bottom line here seems to be that the federal definition of “highly qualified teacher” lacks any real substance and that attempts to ensure that all low income and minority students are taught by teachers who are truly qualified will require modification of these provisions in the NCLB when that statute is finally re-authorized. (Congress is still delaying re-authorization, which was supposed to have occurred in 2007).