                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-20-2008

Newark Parents Assn v. Newark Pub Sch
Precedential or Non-Precedential: Precedential

Docket No. 07-4002




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                                         PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                        No. 07-4002


 NEWARK PARENTS ASSOCIATION; ALBERTA GREEN;
     HABIBULLAH SALEEM; ANDREA SMITH,
                          Appellants

                             v.

   NEWARK PUBLIC SCHOOLS; MARION A. BOLDEN,
            Superintendent, Newark Public Schools,
            in her individual and official capacities;
         JANET CHAVIS, Supervisor, Title 1 Office,
         Newark Public Schools, in her individual and
     official capacities; JOANN TROTMAN, Supervisor,
         Title 1 Office, Newark Public Schools, in her
                individual and official capacities


APPEAL FROM THE UNITED STATES DISTRICT COURT
         FOR THE DISTRICT OF NEW JERSEY
               (D.C. Civil No. 06-cv-05690)
    District Judge: The Honorable Susan D. Wigenton


                Argued: September 25, 2008


  Before: BARRY, AMBRO and JORDAN, Circuit Judges

             (Opinion Filed: November 20, 2008)




Scott M. Michelman, Esq. (Argued)
American Civil Liberties Union
1101 Pacific Avenue
Santa Cruz, CA 95060
      -AND-
Emily B. Goldberg, Esq.
Seton Hall Law School
833 McCarter Highway
Newark, NJ 07102-0000

Counsel for Appellants


Adam S. Herman, Esq. (Argued)
Newark Public Schools
Office of General Counsel
2 Cedar Street, 10th Floor
Newark, NJ 07102-0000

Counsel for Appellees



                   OPINION OF THE COURT



BARRY, Circuit Judge

       Appellants are a putative class of parents of children
enrolled in the public elementary and middle schools of Newark,
New Jersey, and an organization that represents them. They
brought suit against appellees, Newark’s public school system and
various school administrators, under the No Child Left Behind Act
(“NCLBA” or the “Act”), 20 U.S.C. § 6301 et seq., and 42 U.S.C.
§ 1983. The complaint alleges that because the Newark public
school system has failed to live up to its obligations under certain
provisions of the Act, appellants are entitled to privately enforce
those provisions. Appellees moved to dismiss and the District
Court granted the motion, concluding that Congress did not confer
on individuals an enforceable right of action under the Act.
Deciding what is an issue of first impression in the federal courts

                                 2
of appeals, we will affirm.

                 I. The No Child Left Behind Act

A.     The Act’s Purpose and Its Funding Provisions

       Congress enacted the Act pursuant to its spending power.
See U.S. Const. art. I, § 8, cl. 1. The Act, at its outset, states that
its purpose is “to ensure that all children have a fair, equal, and
significant opportunity to obtain a high-quality education and
reach, at a minimum, proficiency on challenging State academic
achievement standards and state academic assessments.” 20 U.S.C.
§ 6301 (footnote omitted). This eminently laudatory purpose is to
be accomplished by, among other things,

       holding schools, local educational agencies, and
       States accountable for improving the academic
       achievement of all students, and identifying and
       turning around low-performing schools that have
       failed to provide a high-quality education to their
       students, while providing alternatives to students in
       such schools to enable the students to receive a high-
       quality education.

Id. § 6301(4).

       As with other legislation enacted under Congress’s spending
power, the Act offers a simple quid pro quo: Congress shall
appropriate funds to a State educational agency1 if it agrees to take
certain specific actions. The State, in turn, appropriates those
funds to its local educational agencies (referred to alternatively as
“LEAs”) for the purpose of helping schools to improve in
accordance with the Act. See id. §§ 6302(i), 6303(g), 6311(a)(1),
6316(a)(1). To become eligible for federal funding, the State
educational agency must first submit to the U.S. Secretary of
Education a plan demonstrating that “the State has adopted
challenging academic content standards and challenging student
academic achievement standards that will be used by the State, its

       1
        The Act refers interchangeably to a “State” and a “State
educational agency.”
                                  3
local educational agencies, and its schools.” Id. § 6311(b)(1)(A).
The State plan shall, among other things, “demonstrate that the
State has developed and is implementing a single, statewide State
accountability system that will be effective in ensuring that all local
educational agencies, public elementary schools, and public
secondary schools make adequate yearly progress.” Id. §
6311(b)(2)(A). The State is tasked with defining “adequate yearly
progress” in a “statistically valid and reliable” manner that
uniformly applies “the same high standards of academic
achievement” to all of its schools. Id. § 6311(b)(2)(C)(i)-(ii).

        Every local educational agency receiving funds under the
Act is obligated to “use the State academic assessments and other
indicators described in the State plan to review annually the
progress of each school served under this part to determine whether
the school is making adequate yearly progress.”               Id. §
6316(a)(1)(A). If a local educational agency determines that a
school has failed to make “adequate yearly progress” for two
consecutive years, the agency shall identify the school for “school
improvement.” Id. § 6316(b)(1)(A). If, for two years after being
identified as requiring “school improvement,” a school continues
to fail to achieve “adequate yearly progress,” the agency shall
identify the school for “corrective action.” Id. § 6316(b)(7)(C). If,
after one full school year of “corrective action,” the school
continues to fail to achieve “adequate yearly progress,” the agency
shall identify the school for “restructuring.” Id. § 6316(b)(8)(A)-
(B).

B.     The Act’s Notification and Supplemental Educational
       Services Provisions

       If a school is identified for “improvement,” “corrective
action,” or “restructuring,” the local educational agency

       shall promptly provide to a parent or parents . . . an
       explanation of what the identification means, . . . the
       reasons for the identification[,] . . . an explanation of
       what the school identified for school improvement is
       doing to address the problem of low achievement[,]
       . . . an explanation of what the local educational
       agency or State educational agency is doing to help

                                  4
       the school address the achievement problem[, and] .
       . . an explanation of how the parents can become
       involved in addressing the academic issues that
       caused the school to be identified for school
       improvement.

Id. § 6316(b)(6)(A)-(E).2 Importantly, this written explanation
must also provide “an explanation of the parents’ option to transfer
their child to another public school . . . or to obtain supplemental
educational services for the child.” Id. § 6316(b)(6)(F); see also id.
§§ (b)(1)(E), (b)(5)(A), (b)(7)(C)(i), (c)(10)(C)(vii). As for
supplemental educational services (referred to alternatively as
“SES”),

       the local educational agency serving such school
       shall . . . arrange for the provision of supplemental
       educational services to eligible children in the school
       from a provider with a demonstrated record of
       effectiveness, that is selected by the parents and
       approved for that purpose by the State educational
       agency in accordance with reasonable criteria.

Id. § 6316(e)(1).

        A parent’s right to obtain supplemental educational services
for his or her child, however, is qualified in that children from low-
income families and children with the lowest achievement levels
are prioritized. The Act provides that the local educational agency
is obligated to arrange for the provision of supplemental
educational services to “eligible children,” id. § 6316(e)(1), with
“eligible child” defined to mean “a child from a low-income
family, as determined by the local educational agency,” id. §
6316(e)(12)(A). If the amount of funds allocated to a local
educational agency to provide supplemental educational services

       2
           As noted, such notification shall be “promptly” given.
Another sub-section of the Act, however, addresses the notification
to be given in the event a school is identified for improvement, and
states that the local educational agency shall give students’ parents
notice “not later than the first day of the school year following such
identification.” 20 U.S.C. § 6316(b)(1)(E)(i).
                                  5
is insufficient to provide those services to every eligible child, the
local educational agency is directed to give priority to the lowest-
achieving children. Id. § 6316(b)(10)(C). The State may, at the
request of a local educational agency, waive the obligation of the
local educational agency to provide supplemental educational
services if the State determines that no eligible supplemental
educational services provider is located close enough to the local
educational agency, and the agency demonstrates that it cannot
provide the services. Id. § 6316(e)(10)(A).

        Students’ parents are also entitled to be notified, on an
annual basis and regardless of the status of the child’s school, of
their right to request and receive information concerning their
children’s teachers’ qualifications. More specifically,

       [a]t the beginning of each school year, a local
       educational agency that receives funds under this
       part shall notify the parents of each student attending
       any school receiving funds under this part that the
       parents may request, and the agency will provide the
       parents on request (and in a timely manner),
       information regarding the professional qualifications
       of the student’s classroom teachers.

Id. § 6311(h)(6)(A).

C.     The Act’s Enforcement Provision

       The Act includes a “Penalties” section, which provides as
follows: “If a State fails to meet any of the requirements of this
section . . . then the Secretary may withhold funds for State
administration under this part until the Secretary determines that
the State has fulfilled those requirements.” Id. § 6311(g)(2). The
provision does not offer any remedy to parents in the event of
noncompliance by a State or a local educational agency with any
of the Act’s terms.

           II. Factual and Procedural Background

A.     The Complaint


                                  6
        The complaint, filed on November 28, 2006, names as
plaintiffs a class consisting of the Newark Parents Association, a
non-profit organization that represents parents (or guardians) of
children attending certain public elementary and middle schools in
Newark, New Jersey. The named defendants are Newark Public
Schools, which is the corporate body charged with managing
Newark’s eighty-one public schools and the local educational
agency responsible for those schools; and individual administrators
of the schools.

       The complaint alleges that the number of Newark public
schools “in Need of Improvement” under the Act, which the
complaint defines as “Failing Schools” (J.A. 24), was thirty-seven
for the 2003-2004 school year, forty-seven for the 2004-2005
school year, forty-eight for the 2005-2006 school year, and fifty-
one for the 2006-2007 school year. (Id. at 26-27.) It further
alleges that on September 14, 2005, the U.S. Department of
Education’s Office of the Inspector General issued a report of an
audit of five New Jersey school districts, including Newark Public
Schools. The audit found that during the 2004-2005 school year,
defendants “failed to meet even the minimum NCLB[A] Notice
Provisions pertaining to parents’ rights to transfer their children to
a non-failing school and to obtain SES for their children.” (Id. at
27.)

        It is undisputed that those members of the proposed class
who are parents all have children enrolled in schools that qualify
as schools in need of improvement under the Act. The parents
claim that, in contravention of the Act, they were never notified (or
received insufficient notification) of (1) the fact that their children
were enrolled in deficient schools, (2) their right to transfer from
failing schools to non-failing schools, (3) their right to request
supplemental educational services under the Act and to receive
certain information about providers of such services, and (4) their
right to request information about the professional qualifications of
the teachers instructing their children. The class also includes
parents who learned, independent of defendants, of their right to
obtain supplemental educational services, and who then sought but
were denied such services for their children. The complaint alleges
that Newark Public Schools responded to these requests by giving
the parents two “Notification Packets” that Newark Public Schools

                                  7
claimed had been mailed to parents for the 2005-2006 school year.
(Id. at 29.) The parents, it is alleged, never received the packets
but, even if they had, those packets would have been deficient
under the Act.

        The complaint sets forth five causes of action invoking the
Act and 42 U.S.C. § 1983. Focusing only on the Act, plaintiffs’
first cause of action alleges that defendants’ failure to provide them
with notice (or, alternatively, with adequate notice) of the failing
status of their children’s schools violates 20 U.S.C. § 6316(b)(6).
The second cause of action alleges that defendants’ failure to
provide plaintiffs with notice (or adequate notice) of their right to
transfer their children out of a failing school to a non-failing school
violates 20 U.S.C. §§ 6316(b)(1)(E) and 6316(b)(6)(F). The third
cause of action alleges that defendants’ failure to provide plaintiffs
with notice (or adequate notice) of their right to request
supplemental educational services for their children who were
attending failing schools in Year 2 or higher violates 20 U.S.C. §§
6316(b)(6)(F) and 6316(e)(2). The fourth cause of action alleges
that defendants’ failure to provide plaintiffs with notice (or
adequate notice) of their right to request information about the
professional qualifications of their children’s teachers violates 20
U.S.C. § 6311(h)(6). The fifth and final cause of action alleges that
defendants’ denial of and interference with plaintiffs’ right to
request and/or receive supplemental educational services for their
children who were attending failing schools in Year 2 or higher
violates 20 U.S.C. § 6316(e)(1)-(2).

       Plaintiffs sought class certification, a declaration that
defendants had violated the Act by failing to comply with its
mandatory notice provisions, an injunction ordering defendants to
comply with the Act’s notice and supplemental educational
services obligations, compensatory education for all eligible
students, and reasonable attorneys’ fees and costs.




                                  8
B.     The District Court’s Decision

       The District Court granted defendants’ Rule 12(b)(6) motion
in an opinion and order dated September 19, 2007. The Court
made clear at the outset that two cases would guide its analysis:
Gonzaga University v. Doe, 536 U.S. 273 (2002), and Sabree ex
rel. Sabree v. Richman, 367 F.3d 180 (3d Cir. 2004).

       As discussed in more detail below, the Gonzaga Court held
that the Family Educational Rights and Privacy Act of 1974
(“FERPA”) did not confer on private individuals a right to enforce
its terms. The District Court determined that the FERPA
provisions at issue in Gonzaga were very similar to the NCLBA’s
provisions under which plaintiffs were seeking relief. The Court
also found the overall structure of the statutes to be similar,
explaining those similarities as follows:

       Although both FERPA and NCLBA ultimately
       benefit students, the two statutes focus on
       monitoring schools, not on individual students who
       attend those schools. Similarly, under the NCLBA
       the benefits that should ultimately trickle down from
       the State to individual students are “two steps
       removed from the interests of individual students.”

(J.A. 12 (quoting Gonzaga, 536 U.S. at 287).)

       The District Court found, as well, that the statutes had a
similar “overall aggregate focus.” (Id.) The Court explained that,
as was the case in Gonzaga, the Act’s references to its ultimate
beneficiaries, i.e., students and their parents, are made only
secondarily. That is, the primary focus is on regulating the State by
obligating it to notify parents in certain circumstances; it is only
through that regulation that students and their parents benefit. The
Court, therefore, concluded as follows:

       [R]eferences made to individual parents and children
       in § 6316 are in terms of what would constitute a
       violation of the Act—specifically, failing to provide
       parents with adequate notice. Under Gonzaga, if

                                 9
       reference to the individual benefited under the
       statute is only made in the context of describing the
       “type of ‘policy or practice’ that triggers a funding
       prohibition,” it is insufficient to confer individually
       enforceable rights under § 1983.

(Id. at 13 (quoting Gonzaga, 536 U.S. at 288).)

        The District Court then discussed Sabree. In Sabree, we
held that Title XIX of the Social Security Act conferred an
enforceable right on the mentally retarded individuals who were
seeking relief under that statute. The Court did not compare the
statutory language at issue in Sabree with the relevant language of
the Act. It found, however, that both Sabree and Gonzaga
emphasized the proposition that “clear, individually focused
statutory language was required before the Court could find
congressional intent to create an enforceable individual right.” (Id.
at 14.) Because the Court found that the Act did not confer an
“unambiguously conferred right” upon students’ parents, it did not
find it necessary to reach the issue of whether Congress foreclosed
the use of § 1983 as a remedy through which any such right could
be vindicated. (Id. at 14-15.)

        Notice of appeal was timely filed. We have jurisdiction
over the appeal under 28 U.S.C. § 1291. Our review of a dismissal
for failure to state a claim is de novo. Victaulic Co. v. Tieman, 499
F.3d 227, 234 (3d Cir. 2007).




                                10
                          III. Discussion

        Appellants argue that, in contravention of Supreme Court
precedent, the District Court only analyzed the Act as a whole and
failed to analyze the specific provisions under which their claims
are brought. They also argue that the Court did not meaningfully
apply our holding in Sabree, and had it done so, it would have been
compelled to find that a private right of action exists under the Act
because the statutory provisions at issue in Sabree are “structurally
identical to those at issue here.”3 (Appellants’ Br. 22.)

         Separate and apart from whether the District Court’s
analysis of the Act was as thorough as appellants would have had
it be, the Court reached the correct conclusion. We will proceed to
explain why that is so.

A.     Private Right of Action Precedent

       The parties do not dispute that 42 U.S.C. § 19834 provides

       3
        Appellants argue, as well, that the Act’s legislative history
supports a finding of an enforceable private right of action and that
appellees waived any right they may have had to argue that
Congress foreclosed the use of § 1983 to sue under the Act.
Because we conclude that the statutory language does not show
that Congress unambiguously intended to confer on individuals an
enforceable right of action under the Act, we need not reach these
arguments.
       4
           Section 1983 provides:

              Every person who, under color of any statute,
       ordinance, regulation, custom, or usage, of any State
       or Territory or the District of Columbia, subjects, or
       causes to be subjected, any citizen of the United
       States or other person within the jurisdiction thereof
       to the deprivation of any rights, privileges, or
       immunities secured by the Constitution and laws,
       shall be liable to the party injured . . . .

42 U.S.C. § 1983.
                                11
a remedy by means of which an aggrieved individual may vindicate
rights conferred on him or her by federal statute. Maine v.
Thiboutot, 448 U.S. 1, 4-8 (1980). The federal statute under which
suit is brought provides the right; section 1983 provides the remedy
through which that right is vindicated. The question before us is
whether the NCLBA provides aggrieved individuals an enforceable
right. In a series of opinions, culminating in its 2002 decision in
Gonzaga, the Supreme Court has addressed the broader question of
when a statute provides an individual with an enforceable right.
We applied Gonzaga and discussed the cases that preceded it in
Sabree. It is useful, we believe, to lay the groundwork for what
follows by briefly discussing the Court’s decision in Gonzaga and
our decision in Sabree, the two decisions on which the parties and
the District Court quite appropriately focused their attention.

       1.     Gonzaga University v. Doe

       Gonzaga concerned a student enrolled at Gonzaga
University who brought suit against the University under FERPA
after he learned that, in violation of FERPA’s nondisclosure
provisions, a University official had disclosed to a potential
employer (a public elementary school) that he had been accused of
committing acts of sexual misconduct against another student.
Plaintiff claimed that the statutory regime of FERPA conferred on
him a federal right, enforceable in a suit for damages under § 1983,
not to have his records disclosed to unauthorized persons without
consent. One of the nondisclosure provisions stated as follows:
“‘No funds shall be made available under any applicable program
to any educational agency or institution which has a policy or
practice of permitting the release of education records . . . of
students without the written consent of their parents to any
individual, agency, or organization.’” Gonzaga, 536 U.S. at 279
(quoting 20 U.S.C. § 1232g(b)(1)).

       The Court began by noting that statutes enacted by Congress
under its spending power will rarely provide a private cause of
action to individuals. Indeed, it emphasized that “‘[i]n legislation
enacted pursuant to the spending power, the typical remedy for
state noncompliance with federally imposed conditions is not a
private cause of action for noncompliance but rather action by the
Federal Government to terminate funds to the State.’” Id. at 280

                                12
(quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1,
28 (1981)). The Court was explicit: “unless Congress ‘speak[s]
with a clear voice,’ and manifests an ‘unambiguous’ intent to
confer individual rights, federal funding provisions provide no
basis for private enforcement by § 1983.” Id. (quoting Pennhurst,
451 U.S. at 17, 28 & n.21) (alteration in original). It noted that
only twice since its decision in Pennhurst had it “found spending
legislation to give rise to enforceable rights.” Id.

       The Court went on to address “[s]ome language in [its]
opinions [that] might be read to suggest that something less than an
unambiguously conferred right is enforceable by § 1983.” Id. at
282. After reiterating the three factors set forth in Blessing v.
Freestone, 520 U.S. 329 (1997), that “guide judicial inquiry into
whether or not a statute confers a right,” id., the Court explained
the source of the confusion:

       . . . Blessing emphasizes that it is only violations of
       rights, not laws, which give rise to § 1983 actions.
       This confusion has led some courts to interpret
       Blessing as allowing plaintiffs to enforce a statute
       under § 1983 so long as the plaintiff falls within the
       general zone of interest that the statute is intended to
       protect; something less than what is required for a
       statute to create rights enforceable directly from the
       statute itself under an implied private right of action.
       Fueling this uncertainty is the notion that our implied
       private right of action cases have no bearing on the
       standards for discerning whether a statute creates
       rights enforceable by § 1983.

Id. at 282-83 (citation omitted). The Court then held: “We now
reject the notion that our cases permit anything short of an
unambiguously conferred right to support a cause of action brought
under § 1983.” Id. at 283. It emphasized that it was rights and not
“the broader or vaguer ‘benefits’ or ‘interests,’ that may be
enforced.” Id. Finally, it stated that “we further reject the notion
that our implied right of action cases are separate and distinct from
our § 1983 cases. To the contrary, our implied right of action cases
should guide the determination of whether a statute confers rights
enforceable under § 1983.” Id. Thus, “[f]or a statute to create such

                                 13
private rights, its text must be ‘phrased in terms of the persons
benefited.’” Id. at 284 (citation omitted). It offered as examples
of statutes that create enforceable private rights Title VI of the
Civil Rights Act of 1964 and Title IX of the Education
Amendments of 1972 because they are phrased “‘with an
unmistakable focus on the benefited class.’” Id. (citation omitted).

        Applying these principles to FERPA’s nondisclosure
provisions, the Court held that they failed to confer enforceable
rights:

       To begin with, the provisions entirely lack the sort of
       “rights-creating” language critical to showing the
       requisite congressional intent to create new rights.
       Unlike the individually focused terminology of
       Titles VI and IX (“No person . . . shall . . . be
       subjected to discrimination”), FERPA’s provisions
       speak only to the Secretary of Education, directing
       that “[n]o funds shall be made available” to any
       “educational agency or institution” which has a
       prohibited “policy or practice.” This focus is two
       steps removed from the interests of individual
       students and parents and clearly does not confer the
       sort of “individual entitlement” that is enforceable
       under § 1983.

Id. at 287 (citations omitted). It further explained that the
nondisclosure provisions spoke “only in terms of institutional
policy and practice, not individual instances of disclosure.” Id. at
288. Those provisions consequently had an aggregate focus; they
did not concern “whether the needs of any particular person have
been satisfied, and they cannot give rise to individual rights.
Recipient institutions can further avoid termination of funding so
long as they comply substantially with the Act’s requirements.” Id.
(internal quotation marks and citations omitted). Finally, the Court
found that the enforcement mechanism provided by Congress,
which vested sole enforcement power in the Secretary of
Education, buttressed its conclusion that FERPA’s nondisclosure
provisions did not confer enforceable rights: “Congress expressly
authorized the Secretary of Education to ‘deal with violations’ of
the Act, and required the Secretary to ‘establish or designate [a]

                                14
review board’ for investigating and adjudicating such violations.”
Id. at 289 (alteration in original)(citations omitted).

       2.      Sabree ex rel. Sabree v. Richman

        In Sabree, the issue was whether Title XIX of the Social
Security Act, known as the “Medicaid Act,” which “established a
cooperative federal-state program under which the federal
government furnishes funding to states for the purpose of providing
medical assistance to eligible low-income persons,” conferred on
aggrieved individuals an enforceable private right of action. 367
F.3d 180, 182 (3d Cir. 2004) (internal quotation marks and citation
omitted). States that accepted funding under the Act were required
to comply with its terms and any regulations promulgated under
them, including a term requiring the creation and implementation
of a “state medical assistance plan” that had been approved by the
Secretary of Health and Human Services. Id.

         Plaintiffs brought suit under a number of provisions of the
Medicaid Act. The first provision sued under, 42 U.S.C. §
1396a(a)(8), provided as follows: “‘A State plan for medical
assistance must . . . provide that all individuals wishing to make
application for medical assistance under the plan shall have
opportunity to do so, and that such assistance shall be furnished
with reasonable promptness to all eligible individuals . . . .’” Id.
at 182 n.4 (quoting 42 U.S.C. § 1396a(a)(8)) (emphasis added).
The second provision, 42 U.S.C. § 1396a(a)(10), provided: “‘A
State plan for medical assistance must . . . provide . . . for making
medical assistance available, . . . to . . . all [eligible] individuals .
. . .’” Id. at 182 n.5 (quoting 42 U.S.C. § 1396a(a)(10)) (emphasis
added) (brackets in original). And the third provision, 42 U.S.C.
§ 1396d(a)(15), provided: “‘For purposes of this title [42 U.S.C.
§§ 1396 et seq.] . . . [t]he term ‘medical assistance’ means payment
of part or all of the cost of the following care and services . . . for
individuals . . . who are [eligible:] . . . services in an intermediate
care facility for the mentally retarded. . . .’” Id. at 182 n.6 (quoting
42 U.S.C. § 1396d(a)(15)) (emphasis added) (alterations in
original).

      We began by explaining that the Blessing Court, having
drawn on a number of the Court’s prior decisions, had formulated

                                  15
a three-prong test to determine whether Congress had conferred
enforceable individual rights in a statute. Under that test, “a statute
must (1) be intended by Congress to benefit the plaintiff, (2) not be
‘vague and amorphous,’ and (3) impose an unambiguous ‘binding
obligation on the States.’” Sabree, 367 F.3d at 186 (quoting
Blessing, 520 U.S. at 340-41). We noted that while Gonzaga had
not abandoned this test,

       it did dispel “[the] confusion [that] has led some
       courts to interpret Blessing as allowing plaintiffs to
       enforce a statute under § 1983 so long as the plaintiff
       falls within the general zone of interest that the
       statute is intended to protect; something less than
       what is required for a statute to create rights
       enforceable directly from the statute itself under an
       implied private right of action.”

Id. at 186-87 (quoting Gonzaga, 536 U.S. at 283) (alterations in
original).

        With these principles in mind, we turned to the text of the
Medicaid Act to determine whether it used rights-creating
language. We found that it did, and that the language used was
“clear and unambiguous.” Id. at 189. We stated that “we can
hardly imagine anyone disputing that a state must provide the
assistance necessary to obtain ICF/MR services, and that it must do
so with ‘reasonable promptness,’ and the government does not do
so.” Id. Next, we stated that in order “[t]o determine whether
these provisions provide plaintiffs with unambiguously conferred
rights, we begin with what has come to be called the ‘Blessing
Test,’” id., i.e., the three-prong test discussed above. We found
that that test was satisfied because “(1) plaintiffs were the intended
beneficiaries of §§ 1396a(a)(10), 1396d(a)(15), and 1396a(a)(8);
(2) the rights sought to be enforced by them are specific and
enumerated, not ‘vague and amorphous’; and (3) the obligation
imposed on the states is unambiguous and binding.” Id.

       Because Gonzaga had held that satisfaction of the Blessing
test may only indicate that a plaintiff falls within the “‘general zone
of interest that the statute is intended to protect,’” however, we
turned again to the text of the Medicaid Act to determine whether

                                 16
Congress had used “‘rights-creating terms.’” Id. at 189-90 (quoting
Gonzaga, 536 U.S. at 287). We concluded that the import of the
relevant language of the Act was “difficult, if not impossible” to
distinguish from the relevant language of Title VI of the Civil
Rights Act of 1964 and Title IX of the Education Amendments of
1972—the two statutes cited by the Gonzaga Court to contain
archetypal rights-creating language.

       Just as in Titles VI and IX, the relevant terms used in
       Title XIX are “mandatory rather than precatory.”
       Further, the “individual focus” of Sections
       1396a(a)(10), 1396d(a)(15), and 1396a(a)(8) is
       unmistakable. The relevant Title XIX provisions
       enumerate the entitlements available to “all eligible
       individuals.” The provisions do not focus on “the
       [entity] . . . regulated rather than the individuals
       protected.” Neither do the statutory references to the
       individual appear “in the context of describing the
       type of ‘policy or practice’ that triggers a funding
       prohibition.”

Id. at 190 (citations omitted) (brackets in original)

        But, we continued, the Gonzaga Court had instructed that
“not only should the text of the statute be examined, but also its
structure.” Id. at 191. Turning to the general structure of the
Medicaid Act—that is, its other provisions viewed in the
aggregate—we conceded that it gave us “some pause.” Id. Its
opening section, for instance, stated that “Title XIX was enacted
‘[f]or the purpose of enabling each State . . . to furnish . . . medical
assistance.’” Id. (quoting 42 U.S.C. § 1396) (brackets in original).
We acknowledged that “[t]his language says nothing of individual
entitlements or rights, but reminds us that we are dealing with an
agreement between Congress and a particular state.” Id. We then
turned to § 1396c of the statute, which we explained “empowers
the Secretary of HHS to suspend payments to a state if it fails to
‘comply substantially’ with the requirements of Title XIX.” Id.
We concluded that “[t]his language not only confirms that Title
XIX by its terms creates a relationship between Congress and a
particular state, but it recalls, as well, the ‘comply substantially’
language in Blessing and Gonzaga University.” Id. at 191-92.

                                  17
Balanced against the specific rights-creating language discussed
above, however, we held, in what was a very close case, that the
Medicaid Act conferred rights that the plaintiffs could enforce. Id.
at 192.

B.     The NCLBA’s Notice and Supplemental Educational
       Services Provisions Do Not Confer a Private Right of
       Action Upon Aggrieved Individuals

       We return to the case before us. As we noted at the outset,
no federal court of appeals has decided whether the Act’s various
notice and supplemental educational services provisions confer on
individuals a private right of action to enforce those provisions. It
is worthy of mention, however, that every district court that has
decided the question has held that, whatever the provision at issue,
the Act does not confer a right of action enforceable by individuals
or individual providers of supplemental educational services.5

        We begin, as we must, by looking at the three provisions of
the Act under which appellants seek relief: 20 U.S.C. § 6316(b)(6),
20 U.S.C. §§ 6316(e)(1)-(2), and 20 U.S.C. § 6311(h)(6). As set
forth in greater detail above, the Act’s notice provision (20 U.S.C.
§ 6316(b)(6)) states that in the event a school is identified for
“improvement,” “corrective action,” or “restructuring,” the local
educational agency “shall promptly provide to a parent or parents”

       5
          See Simmons v. Santa Cruz County Dep’t of Educ., No.
07-04064, 2008 WL 1777384, at *2 (N.D. Cal. Apr. 18, 2008);
Catapult Learning, Inc. v. Bd. of Educ. of St. Louis, No. 4:07-935,
2007 WL 2736271, at *4 (E.D. Mo. Sept. 17, 2007); Holder v.
Gienapp, No. 06-221, 2007 WL 952039, at *2 (D.N.H. Mar. 28,
2007); Alliance For Children, Inc. v. City of Detroit Pub. Schs.,
475 F. Supp. 2d 655, 662-63 (E.D. Mich. 2007); Blanchard ex rel.
Blanchard v. Morton Sch. Dist., No. 06-5166, 2006 WL 2459167,
at *4 (W.D. Wash. Aug. 25, 2006); Stokes ex rel. K.F. v. U.S.
Dep’t. of Educ., No. 05-11764, 2006 WL 1892242, at *2 (D. Mass.
July 10, 2006); Coachella Valley Unified Sch. Dist. v. California,
No. 05-02657, 2005 WL 1869499, at *2 (N.D. Cal. Aug. 5, 2005);
Fresh Start Acad. v. Toledo Bd. of Educ., 363 F. Supp. 2d 910, 916
(N.D. Ohio 2005); Ass’n of Cmty. Orgs. v. N.Y. City Dep’t of
Educ., 269 F. Supp. 2d 338, 344-47 (S.D.N.Y. 2003).
                                18
a number of explanations, see 20 U.S.C. § 6316(b)(6), including an
explanation of “the parents’ option to transfer their child to another
public school . . . or to obtain supplemental educational services for
the child,” id. § 6316(b)(6)(F). In addition, under 20 U.S.C. §
6311(h)(6), at the beginning of each school year, and regardless of
whether the school is identified as in need of improvement, “a local
educational agency that receives funds under this part shall notify
the parents of each student attending any school receiving funds
under this part that the parents may request, and the agency will
provide the parents on request . . . , information regarding the
professional qualifications of the student’s classroom teachers.” Id.
§ 6311(h)(6)(A). Appellants also seek to enforce their “right to
request and/or receive SES” (J.A. 36) under 20 U.S.C. §
6316(e)(1)-(2), which states that in the event a school is identified
for “improvement,” “corrective action,” or “restructuring,” “the
local educational agency serving such school shall . . . arrange for
the provision of supplemental educational services to eligible
children in the school from a provider with a demonstrated record
of effectiveness, that is selected by the parents.” Id. § 6316(e)(1).

       As did the statutory provisions in Sabree, these statutory
provisions clearly and unambiguously obligate the State to provide
certain notices and to provide supplemental educational services to
students when requested. This, however, does not end our inquiry,
because while the provisions create law, “[w]hether the same
provisions confer rights, enforceable by individuals, is another
question.” Sabree, 367 F.3d at 189.

        To answer that question, we are required to determine
whether the provisions at issue here pass the “Blessing test,” that
is, whether (1) appellants were the intended beneficiaries of these
provisions, (2) the rights sought to be enforced by appellants are
specific and enumerated rather than vague and amorphous, and (3)
the obligation imposed on the State is “unambiguous and binding.”
Id. For the reasons that in Sabree we found the Medicaid Act to
pass this test, the NCLBA’s provisions also pass muster. Thus, it
is plain from the terms of those provisions that students and their
parents are intended to benefit from them, that the rights sought to
be enforced are specific in that the provisions spell out precisely
what types of notice and supplemental educational services must
be given and when, and that the obligation imposed on the State is

                                 19
unambiguous and binding. Again, however, our inquiry does not
end with those conclusions.

       [T]he Blessing Test may only indicate that plaintiffs
       “fall[ ] within the general zone of interest that the
       statute is intended to protect; something less than
       what is required for a statute to create rights
       enforceable directly from the statute itself . . . .” To
       ensure that Congress unambiguously conferred the
       rights asserted, we must determine whether Congress
       used “rights-creating terms.”

Id. at 189-90 (quoting Gonzaga, 536 U.S. at 283-84) (second
brackets in original).

        At this stage in Sabree, we found that Congress had used
rights-creating language in the relevant Medicaid Act provisions
based on the fact that those provisions were essentially
indistinguishable from the language used in Title VI of the Civil
Rights Act of 1964 and Title IX of the Education Amendments of
1972—the two exemplars of rights-creating language cited by the
Gonzaga Court. In contrast, however, the terms used in the
relevant provisions of the NCLBA, while admittedly similar in
some ways to the Medicaid Act’s provisions, are materially
distinguishable from the language found in Titles VI and IX. The
command used in those statutes—“No person . . . shall . . . be
subjected to discrimination”—makes its one and only subject a
“person.” In the NCLBA, there are two subjects: the primary
subject is always the State and the “local educational agency,”
while “the parents of each student” are the secondary subject—they
benefit from the provision but only as a result of regulation
imposed upon the State and its actors. Stated somewhat
differently, the focus of the NCLBA is on the entity regulated and
is at least one step removed from the interests of individual
students and parents, whereas the focus of the Medicaid Act is on
the individuals protected rather than the entity regulated.

       As is discussed above, in § 6316(b)(6) the entity being
regulated is the local educational agency, while the students and
their parents are the beneficiaries of that regulation. Similarly, §
6311(h)(6) states that “a local educational agency that receives

                                 20
funds under this part shall notify the parents of each student” of
their child’s teacher’s qualifications. Once again, because it is the
local educational agency that is receiving federal funding (by way
of the State), the Act’s primary focus is on the regulation of the
agency. The students and parents benefit secondarily from that
regulation. So, too, with § 6316(e)(1). In the event a school is
identified as needing improvement, corrective action, or
restructuring, “the local educational agency serving such school
shall . . . arrange for the provision of supplemental educational
services to eligible children.” 20 U.S.C. § 6316(e)(1).

         Similarly, the supplemental educational services provisions
focus on students in the aggregate, and on the lowest-achieving
students and students from low-income families more specifically.
In either instance, the focus is not on the individual. Section
6316(e)(1) states that local educational agencies are obligated to
arrange for the provision of supplemental educational services to
“eligible children.” Section 6316(b)(10)(C) states that if the
applicable local educational agency does not have sufficient funds
to provide supplemental educational services to all eligible
children, the lowest-achieving students shall be prioritized.
Moreover, both of these restrictions are in addition to the State’s
overarching right to waive a local educational agency’s obligation
to provide any supplemental educational services under certain
circumstances. Id. § 6316(e)(10)(A). By prioritizing certain
students (low-income and the lowest-achieving) over others
(higher-income and better-performing), the Act is focusing in the
aggregate and not on any individual student’s right to receive
supplemental educational services.6 This sort of prioritization is
akin to the Blessing Court’s conclusion that no private right of
action existed under the statute at issue there because, at least in
part, it focused on systemwide performance.

     Moreover, as previously indicated, the provisions of the
Medicaid Act with which we were concerned in Sabree dealt with
what are essentially financial benefits, since the “medical

       6
         Because Congress did not confer any individual rights
under the Act, we need not reach the question of whether Congress
evinced an intent to preclude individual suits. See Sabree, 367
F.3d at 193.
                                21
assistance” that the State was obligated to provide under those
provisions is defined as “payment of part or all of the cost of the
[specified] care and services . . . for individuals . . . who are
[eligible.]” 42 U.S.C. § 1396d(a)(15). We observed in Sabree that
the Supreme Court made a point in Gonzaga of distinguishing
precedent that dealt with statutes extending monetary benefits to
individuals. Sabree, 367 F.3d at 185. In particular, we noted, the
Court distinguished Wilder v. Virginia Hospital Assoc., 496 U.S.
498 (1990), because the issues there focused on certain provisions
of the Medicaid Act that, among other things, “explicitly conferred
specific monetary entitlements upon the plaintiffs” and “required
States to pay an ‘objective’ monetary entitlement to individual
health care providers, with no sufficient administrative means of
enforcing the requirement against States that failed to comply[.]”
Id. at 185 (quoting Gonzaga, 536 U.S. at 280-81, and Wilder, 496
U.S. at 522-23). Here, the benefits at issue are essentially non-
monetary, consisting chiefly of notice and information obligations
of the State that redound to the benefit of students and their
parents.7

       We must look, finally, at the overall structure of the Act. In
Sabree, we found that other provisions within the Medicaid Act
gave us some pause because they spoke in terms of an “agreement
between Congress and a particular state.” 367 F.3d at 191. We
nonetheless found that those other provisions—the Medicaid Act’s
appropriations and general introductory statement and its
enforcement provision—could not “neutralize” the rights-creating
language we had found in the specific provisions at issue. Id. at
192. The NCLBA’s general structure, including its introductory
statement, its appropriations provisions, and its enforcement
provision, also speak in terms of an agreement between Congress
and a particular State.

      The Act’s introductory statement states that its purpose is
“to ensure that all children have a fair, equal, and significant

       7
        The supplemental educational services obligations no
doubt have real cash consequences, but those obligations, too, are
unlike monetary benefits, as they are waiveable by the State and
may be provided directly by local educational agencies rather than
being paid for by the State.
                                22
opportunity to obtain a high-quality education.” 20 U.S.C. § 6301.
While the reference to “all children” could ostensibly be read as a
proclamation that each and every child shall have certain rights,
Congress did not refer to the individual rights of each and every
child. Indeed, the language that follows focuses on effecting this
purpose by “holding schools, local educational agencies, and States
accountable for improving the academic achievement of all
students.” Id. § 6301(4). The focus of this introductory statement,
then, is on producing benefits to certain beneficiaries (school
children) through the regulation of State actors (the local
educational agencies). It thus speaks in terms of an “agreement
between Congress and a particular state.” Sabree, 367 F.3d at 191.

         The NCLBA’s general appropriations and enforcement
provisions also evince an agreement between Congress and the
States, rather than the creation of individual rights. The
appropriations provision makes no mention of individuals; it
simply states that for purposes of carrying out parts of the Act,
Congress shall appropriate to State agencies certain amounts of
money in each subsequent fiscal year. 20 U.S.C. § 6302(a). And
as in Sabree, where the Medicaid Act’s enforcement provision
“empower[ed] the Secretary of HHS to suspend payments to a state
if it fails to ‘comply substantially’ with the requirements of Title
XIX,” the NCLBA’s enforcement provision “creates a relationship
between Congress and a particular state.” Sabree, 367 F.3d at 191-
92. It provides that “[i]f a State fails to meet any of the
requirements of this section, . . . then the Secretary may withhold
funds for State administration under this part until the Secretary
determines that the State has fulfilled those requirements.” 20
U.S.C. § 6311(g)(2).

       Read in concert with the less-than rights-creating language
used in the notice and supplemental educational services
provisions, the overall structure of the Act supports the conclusion
that Congress did not intend to confer enforceable individual rights
under those provisions. Again we note the contrast between this
case and Sabree, in which we observed that our decision about a
private right of action was buttressed by Supreme Court precedent
addressing the identical language at issue in that case. Sabree, 367
F.3d at 192 (“Our confidence in this conclusion rests securely on
the fact that the Court has refrained from overruling [decisions]

                                23
which upheld the exercise of individual rights under statutes that
contain similar (or, in the case of Wilder, identical) provisions to
[the statutory provision at issue].”). There is no such Supreme
Court precedent favoring appellants here. On the contrary, the
closest analog is Gonzaga, which supports the conclusion that there
is no private right of action.

        We mentioned, as we began our discussion, that, without
exception, the district courts that have considered the issue we have
considered have reached the same conclusion we reach. We close
our discussion with mention of but one of those decisions, a
decision we find to be particularly thorough and very much on
point: Association of Community Organizations for Reform Now
v. New York City Department of Education, 269 F. Supp. 2d 338
(S.D.N.Y. 2003). In that decision, the District Court, applying
Gonzaga, held that “the notice, transfer and SES provisions do not
contain the kind of ‘rights-creating’ language that the Supreme
Court has deemed ‘critical to showing the requisite congressional
intent to create new rights.’” Id. at 344 (quoting Gonzaga, 536
U.S. at 287.)

         Of greatest importance to the District Court was the fact
that, in its view, those provisions “focus on two entities—states and
local educational agencies—and the restrictions that flow from
their decisions to receive NCLBA funding.” Id. Thus,

       [t]he NCLBA is drafted to focus on the regulation of
       these entities and not on conferring any direct
       benefit, entitlement or right upon individual[s], such
       as parents and students. Congress, well aware of
       how to confer entitlements on individuals, could
       have drafted the NCLBA to provide that parents
       have the right to transfer their children or that
       students have the right to receive SES, but instead
       focused on what states and local educational
       agencies must provide to parents and children and on
       regulating the states and local educational agencies.

Id. Under Gonzaga, the Court continued, where a statute focuses
on the entity to be regulated (here, the States and local educational
agencies) and the benefit to be conferred on an individual is

                                24
secondary, i.e., it flows to individuals as a result of the regulation
of the States and local educational agencies, Congress has not
created the type of individual entitlement that characterize the
unambiguous intent to create personal rights.

      Next, the District Court found that the Act’s transfer and
supplemental educational services provisions at issue have only an
aggregate focus; they are not concerned with whether the needs of
any particular person have been satisfied. The Court explained:

       [B]oth the transfer and SES provisions give priority
       for receiving those benefits to children from low-
       income families. This indicates that Congress was
       concerned with improving the educational conditions
       of children as a whole, and specifically, the
       condition of the subset of children from lower
       income families, rather than ensuring that each
       individual child was provided with a right to transfer
       out of a failing school or a right to receive SES. In
       addition, with respect to the transfer provisions, the
       terms and conditions on transfers can be altered
       collectively for an entire group of students because
       the local educational agency can enter into
       cooperative agreements with other local educational
       agencies, but those agreements are required only “to
       the extent practicable” and depend on the agreement
       of other local educational agencies. The same is true
       of the ability of children to receive SES, which the
       local educational agency may choose to waive on
       behalf of all of its students. The decisions whether
       to seek a waiver or to enter into cooperative
       agreements cannot be made by individual students,
       and are collective judgments that affect all students
       attending failing schools under the control of the
       local educational agency. As such, the NCLBA has
       an aggregate focus, which indicates that Congress
       did not intend to create individually enforceable
       rights under the statute.




                                 25
Id. at 3458 (citations omitted).

       Finally, the District Court found that the nature of the Act’s
enforcement mechanism supported the conclusion that Congress
did not intend to create individual rights. The Act contains no
procedures—administrative or judicial—by which individuals can
enforce violations of its notice, transfer, or supplemental
educational services provisions. Instead, only the Secretary of
Education can enforce a State’s violation of the Act. Again, the
Court quoted Gonzaga, where the enforcement scheme of FERPA
was similarly centralized in the Secretary of Education: “‘[i]t is
implausible to presume that the Congress nonetheless intended
private suits to be brought before thousands of federal-and state-
court judges . . . .’” Id. at 346 (quoting Gonzaga, 536 U.S. at 290).

                          IV. Conclusion

        We hold that Congress did not intend to give individuals a
right to enforce the notice and supplemental educational services
provisions of the Act. We will affirm the Order of the District
Court.




       8
          As this passage makes clear, plaintiffs sought to enforce
their alleged right to receive supplemental educational services and
to transfer schools. Appellants in the case before us, however, seek
to enforce a right to receive the former; they do not seek to enforce
a right to transfer schools but only a right to receive notice of their
ability to transfer. (Appellants’ Br. 27 n.5.)
                                   26
