(CN) – In its third round before the 9th Circuit, the government successfully defended a temporary amendment to a federal law that defines some uncertified teachers in California as “highly qualified.”
When the recently law expires at the end of the 2012-13 school year, however, it will revert to its earlier, unconstitutional form, without the intervention of Congress, the San Francisco based federal appeals court warned Thursday.
The original provision of the No Child Left Behind Act (NCLB) said that uncertified teachers can be deemed “highly qualified” if they participate in alternative teacher training programs, such as internships. California parents in low-income school districts challenged the practice in 2007, claiming that it had lowered standards and put unqualified teachers in classrooms.
While 41 percent of interns in California teach in the 25 percent of schools with the highest concentrations of minority students, just 2 percent of interns teach in the 10 percent of schools with the lowest concentration of minority students, according to statistics quoted in the decision.
After a federal judge dismissed the case for lack of standing, a three-judge appellate panel affirmed in 2009. After granting a rehearing, however, the same panel found that that the law unconstitutionally brings certified teachers to jobs in wealthier districts, while unqualified teachers serve the minority and low-income school districts.
A 2-1 majority found that the regulation put the “highly qualified” label on teachers who are simply making “progress” toward becoming highly qualified.
These cases are abbreviated by the court as Renee I and Renee II.
The panel considered the case for a third time after Congress passed a temporary revision to the definition of “highly qualified teacher” in NCLB.
The Continuing Appropriations and Surface Transportation Extensions Act of 2011 says that an alternative-route teacher who merely “demonstrates satisfactory progress toward full certification” is “highly qualified” within the meaning of NCLB. That modification expires at the end of the 2012-2013 academic year.
“If Congress takes no further action, the pre-Section 163 version of NCLB will again be the law,” Judge William Fletcher wrote for another divided court panel. “In that event, [the provision] will again be invalid because its definition of ‘highly qualified teacher’ will again be inconsistent with the statutory definition.”
In a partial dissent, Judge Tallman wrote said the appeal should have been dismissed for lack of standing.
“Any discussion about the pre-§ 163 regulation is largely immaterial to the issue now before us because it depends upon a prediction of what Congress may do in 2013,” Richard Tallman wrote. “What Congress has done is ‘prospectively overrule[ ] Renee II.’ Under the law of the case doctrine it appears that should Congress fail to act by 2013 the majority’s opinion in Renee II would control. Given enactment of § 163, however, the discussion of whether the regulation violated NCLB pre-§ 163 becomes wholly irrelevant. I therefore do not join that part of the majority’s opinion.”