Enforceable rights, No Child Left Behind, and political patriotism: a case for open-minded section 1983 jurisprudence.

• Author: Greenberger, Sarah D.

INTRODUCTION I. FROM ESEA TO NCLB: CREATION AND EVOLUTION OF TITLE I II. IMPLIED PRIVATE CAUSE OF ACTION AND SECTION 1983 ENFORCEMENT A. Implied Private Cause of Action: Implying Private Remedies B. Section 1983 as a Remedy for Federal Statutory Violations: Implying Substantive Rights III. AN ENFORCEABLE RIGHT IN NO CHILD LEFT BEHIND A. Intended Beneficiaries? B. Too Vague to be Enforced? C. A Binding Obligation? D. Context? E. An Exclusive Enforcement Scheme? IV. REASONS FOR OPEN-MINDED SECTION 1983 JURISPRUDENCE A. Respect for Congressional Intent B. Undermines Principles of Responsive Government and Individual Participation C. A Damaging Presumption Against Effectiveness CONCLUSION INTRODUCTION

There exists yet another patriotism more rational than [fervent beliefs resting on an ancient order]: it is less generous, less passionate perhaps but more creative and lasting; it springs from education, develops with the help of laws, increases with the exercise of rights and in the end blends in a sense with personal interest.

-Alexis de Tocqueville (1)

An educated populace creates an environment for innovation, accelerated economic growth, a more responsible electorate that institutes wiser policy, (2) and, as Alexis de Tocqueville noted, a wellspring for a more creative and lasting patriotism. (3) Education's centrality to the success of individuals and society is beyond dispute. (4) The longer children stay in school, the more likely they are to earn a decent wage and be independent of the state, reflecting a "growing economic premium on education and skills." (5) Nor can the undereducated exert as much influence on the political dialogue in this democratic society, undermining the uniquely compelling ideal that "government of the people by the people for the people" (6) can flourish.

If education is the wellspring of the most stable patriotism, then there is one more reason our failed public education system has become a national priority. The failure of public education is more extreme for poor (7) and minority children. (8) The 2000 National Assessment of Educational Progress (NAEP) for fourth graders found 63% of African Americans, 58% of Hispanic Americans, and 47% of all children in urban schools reading below a basic level. (9) The largest and most ambitious federal effort to address the ramifications of inadequate public education is Title I of the Elementary and Secondary Education Act of 1965 (ESEA). (10) Initially structured without enforcement mechanisms and unsuccessful in achieving educational equity. (11) Congress has repeatedly revised Title I, introducing a system of standards and accountability that formed the basis of the 2001 version of the Act, entitled No Child Left Behind (NCLB). (12) NCLB included stricter testing requirements, increased accountability to parents, and required for the first time that all children reach proficiency in state educational standards. (13)

This Comment examines the rights parents and other aggrieved parties have or should have under NCLB to hold a state accountable if its programs do not meet the requirements of the Act. This Comment contends that without private enforcement under section 1983, (14) the promise of NCLB will go unfulfilled. Although under NCLB the Secretary of Education may enforce state compliance with its obligations under the Act through his power to terminate state funds, (15) Title I, unlike many Spending Clause statutes, does not provide an administrative process or an explicit private cause of action for individuals to bring claims and enforce compliance with state or local obligations. Moreover, federal funding termination is a very limited remedy. Should intended beneficiaries be able to surmount the absence of an individual administrative enforcement process, they would have to ask the Secretary of Education to financially cripple the program they are trying to improve, an unsatisfactory and unlikely avenue of relief.

Absent express statutory avenues for individual enforcement, an implied cause of action or an implied right of action under section 1983 become the only possible tools for private enforcement of state obligations under the Act. In recent opinions, the Supreme Court, sensitive to separation of powers concerns, has limited the ability of individuals to bring enforcement actions by an implied cause of action in the absence of express fights-creating language indicating congressional intent to create remedies. (16) Moreover, in 2002 the Court issued Gonzaga University v. Doe, in which it cited to its implied cause of action analysis to determine the existence of a substantive right to be enforced under section 1983. (17) This reference has caused some to question whether this remaining avenue for the vindication of federal statutory rights has also been narrowed. (18)

This Comment argues that Gonzaga's references to implied cause of action analysis should not be read as conflating the two avenues of rights enforcement, or as justifying the notion that there are no enforceable rights in NCLB. To use as narrow an approach to imply rights as to imply remedies would defy clear congressional intent both in creating section 1983 as a separate cause of action for enforcing substantive rights and in passing NCLB to solve a problem of national concern. This Comment contends that a better interpretation of Gonzaga would focus on congressional intent to create rights--as in implied cause of action cases--but would look to a wider category of indicia to show intent. While the Court has made clear that it will no longer imply causes of action simply to further statutory purpose, (19) it can and should include statutory purpose and scheme as indicators of congressional intent to create rights. (20) A court using this approach would find that NCLB meets the requirements for rights creation under section 1983, especially because of NCLB's individually focused language and inclusion of the contextual factors considered in traditional implied cause of action analysis. Any finding to the contrary is inconsistent with congressional intent, vitiates NCLB enforcement, and undermines section 1983 jurisprudence in general.

Part I of this Comment examines the history of Title I, emphasizing the current statute's dependence on individual action and enforcement. Part II briefly describes the doctrinal development in two relevant areas: a) the Supreme Court's reluctance to imply rights and remedies in statutes that do not expressly provide for them and b) its uncertain approach to implying substantive rights enforceable under section 1983, which does expressly provide a remedy for such rights. Although congressional intent is the touchstone in both inquiries, this Comment argues that the test for intent is broader and more flexible in the latter than the former, and that the Court's most recent precedent, Gonzaga, supports this conclusion. Part III analyzes whether, in light of the legislative language, purpose and context as well as Supreme Court precedent including Gonzaga, NCLB gives rise to enforceable rights. This question is addressed by examining one potential claim: whether parents can bring a section 1983 action against State Educational Agency (SEA) officials to enforce state level obligations under section 6311(b)(8) of NCLB. (21) Part IV suggests that not only does respect for congressional intent argue for a broad reading of Gonzaga, federalism concerns do not justify narrowing the scope of section 1983 enforcement but, on the contrary, support a reading of Gonzaga that favors finding enforceable rights under the statute.

1. FROM ESEA TO NCLB: CREATION AND EVOLUTION OF TITLE I

   President Johnson first sought to address the failures of the public education system in 1965 by introducing and pressing for Title I of the Elementary and Secondary Education Act of 1965. Title I established an annual block grant to state educational agencies (SEAs) in return for a commitment to provide programs benefiting educationally disadvantaged students. ESEA was aimed at "the effects of the conditions of group poverty upon the individual student." (22) Title I is still the federal government's largest investment in education, (23) as well as the bedrock of its commitment to equality of opportunity. (24)

   Title I was passed amid great controversy between those who thought education should be under local control and those who believed effective education was a national interest that should be addressed by the national government. (25) As a result, Title I stated a bold goal but was concerned almost solely with the equity of funding. The requirements for programs were vague, and ESEA lacked an evaluation component or an effective enforcement mechanism. (26) Scholars and advocates have offered several reasons for the failure of Title I to achieve educational parity, but it is agreed that the lack of evaluation and enforcement created significant barriers to Title I's effectiveness. (27)

   In 2001, both Congress and the President, in a clear statement that educational parity--not state promises--was the goal of Title I, overhauled NCLB to address the program's shorcomings. (28) As a result, districts and states have specific obligations under NCLB to the Department of Education, schools, parents, and students to ensure that the goal of 100% proficiency is met. (29) The new parental notification and choice provisions implement a market-based reform strategy. (30) As explained by John E. Chubb, giving parents a choice among public schools while removing guaranteed financial support for existing schools will force underachieving institutions to improve in response to competitive pressure. (31) That Congress attempted to implement this educational reform by using competition is made clear by the structure of the Act and its legislative history, as well as from administrative statements concerning the Act. (32) The success of the effort is premised on...