Sonya Renee v. Arne Duncan

Opinion by Judge WILLIAM A. FLETCHER; Partial Concurrence and Partial Dissent by Judge TALLMAN.

ORDER

This court’s opinion filed September 27, 2010, and reported at 623 F.3d 787 , is supplemented with the attached.

The petition for rehearing, filed on October 12, 2010, is GRANTED.

OPINION

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 Education 1 (collectively, “the Secretary”). Appellants challenge a federal regulation permitting teachers who are participating in alternative-route teacher training programs, but who have not yet obtained full State certification, to be characterized as “highly qualified teachers” under the No Child Left Behind Act (“NCLB”). The district court granted summary judgment to the Secretary.

This case has a complicated history. We initially vacated the judgment of the district court for lack of Article III standing in a published opinion, with one panel member dissenting. Renee v. Duncan, 573 F.3d 903 (9th Cir.2009) (Renee I). We subsequently granted a petition for panel rehearing and withdrew our prior opinion. We reversed…

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 D.C. No. JOHNSON, a minor, by Deanna Bolden, her guardian ad litem;  3:07-CV-04299-PJH

ORDER AND

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. 

5007 5008 RENEE v. DUNCAN Appeal from the United States District Court for the Northern District of California…

dissenting in part and concurring in part:

I concur in the judgment and parts III. B.l — 2—that the appeal is not moot — and III.B.4 — that appellants are not entitled to attorney’s fees. I continue to believe that the appellants lack standing to bring this suit, Renee II, 623 F.3d at 800-807, and would dismiss this appeal for the reasons I previously explained.

I agree that if we were to reach the merits, the passage of § 163 did not make this appeal moot. However, the majority’s detailed discussion of § 163 is extraneous dicta. Section 163 explicitly modifies NCLB to include the definition for “highly qualified teacher” contained in 34 C.F.R. § 200.56 (a)(2)(ii). Because the regulation can no longer violate NCLB, it is unnecessary for the majority to address in this opinion whether- — prior to the enactment of § 163 — the challenged regulation violated NCLB.

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. What Congress has done is “prospectively overrule[] Renee II.” Op. at 1018. Under the law of the case doctrine it appears that should Congress fail to act by…