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Court Curbs U.S. Rule on Alternative Certification

A federal appeals court reversed itself Monday and struck down a federal regulation that permits teachers working towards alternative certification to be considered "highly qualified" under the No Child Left Behind Act even if they are merely making "satisfactory progress" towards certification.

A panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, had ruled in July 2009 against a group of California activists who argued the federal regulation permitted a disproportionate number of teaching "interns" to teach in California schools with large proportions of minority and low-income students. The court said the plaintiffs lacked standing to bring the suit and ordered the suit dismissed.

Today, however, the panel reversed itself and held that the plaintiffs, which include California ACORN, Californians for Justice, and minority parents and children, did have legal standing to challenge the federal interpretation. And the panel went on to rule that the U.S. Department of Education's 2004 regulations interpreting the "highly qualified teacher" provisions of NCLB go too far in relaxing the definition.

"We conclude that the Secretary's regulation impermissibly expands the definition of 'highly qualified teacher' contained in [the NCLB statute] by including in that definition an alternative-route teacher who merely 'demonstrates satisfactory progress toward' the requisite 'full State certification,'" U.S. Circuit Judge William A. Fletcher wrote for a 2-1 majority in Renee v. Duncan. (Fletcher was in dissent in the panel's 2009 decision.)

At issue are teachers with what California defines as "intern" credentials, who are on a path to completing alternative certification but have not yet achieved it. The lawsuit argues that 41 percent of teaching interns in California teach in the 25 percent of schools with the highest concentrations of minority students.

"In adopting NCLB, Congress decided that teachers with 'full State certification' are, in the aggregate, better teachers than those without such certification," Judge Fletcher wrote. "We recognize that it is debatable whether Congress was correct in deciding that
teachers with 'full State certification' are in fact better than teachers without such certification."

This is especially debatable if many of the interns come from programs such as Teach for America, the judge said. But the disparate assignment of teachers without full state certification to minority classrooms means the plaintiff families have suffered "injuries in fact" that give them standing to sue, Judge Fletcher said.

Writing in dissent today, Judge Richard C. Tallman said he did not believe the plaintiffs have standing against the federal Education Department because their real complaint is with the California Department of Education and its teaching-certification definitions.

Tallman characterizes the lawsuit as an attack on Teach for America participants and their intern status as meeting the "highly qualified" teacher definition under the challenged federal regulation.

"By removing the Teach for America teachers' 'highly qualified' label, [the plaintiffs] hope to lower the number of Teach for America teachers legally allowed to fill vacant positions in low-income area schools," Judge Tallman wrote. But that goal may not even result from striking down the regulation because many "highly qualified teachers" prefer to work in affluent schools over those in low-income areas, he said.

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