CONNECTICUT v. SPELLINGS
549 F.Supp.2d 161 (2008)
State of CONNECTICUT, et al., Plaintiffs,
v.
Margaret SPELLINGS, Secretary of Education, Defendant.
No. 3:05CV1330(MRK).
United States District Court, D. Connecticut.
April 28, 2008.
Clare E. Kindall, Ralph E. Urban, Richard Blumenthal, Attorney General's Office, Hartford, CT, for Plaintiffs.
Elizabeth Goitein, Heather R. Phillips, Marcia Berman, Samuel C. Kaplan, Washington, DC, John B. Hughes, U.S. Attorney's Office, New Haven, CT, for Defendant.
MARK R. KRAVITZ, District Judge.
Pending before the. Court are a Motion for Judgment on the Administrative Record [doc. # 133] filed by Plaintiffs, the State of Connecticut and its General Assembly (collectively, the "State"), a Cross-Motion for Judgment on the Record [doc. # 145] filed by Defendant, Margaret Spellings, Secretary of Education (the "Secretary"), and a Cross-Motion for Judgment on the Record and Opposition to Plaintiffs Motion for Judgment on the Record [doc. # 142] filed by Intervenor-Plaintiff, Connecticut State Conference of the NAACP (the "NAACP"). For the reasons explained below, the Court denies the State's Motion [doc. # 133], grants the Secretary's Cross-Motion [doc. # 145], and grants the NAACP's Cross-Motion [doc. # 142].
I.The dispute in this case arises under the No Child Left Behind Act of 2001, 20 U.S.C. §§ 6301-7941 (2006) (the "Act"). The facts underlying this dispute are set forth in greater detail in this Court's previous ruling on the Secretary's Motion to Dismiss [doc. # 18] ("Motion to Dismiss Ruling" [doc. # 87]), familiarity with which is assumed. See Connecticut v. Spellings,453 F.Supp.2d 459 (D.Conn. 2006). In its Motion to Dismiss Ruling, the Court addressed "only the threshold issues relating to its jurisdiction and authority to consider the various claims raised by the State," id. at 465, and dismissed the first three of the State's four counts of its Second Amended Complaint [doc. # 81] because the Court concluded that it lacked jurisdiction over them. See id. at 465, 491, 494, 501; see also Arizona State Dep't of Educ. v. US. Dep't of Educ., No. CV061719PHXDGC, 2007 WL 433581, at *7 (D.Ariz. Feb.6, 2007) ("This Court lacks subject matter jurisdiction over this pre-enforcement declaratory judgment action regarding the meaning of § 6316(b)(2)(B).").1 The Court further declined to address the claims asserted in the State's fourth count, which appealed the Secretary's denials of Connecticut's two proposed plan amendments regarding the timing and method of assessment of two groups of students—special education and Limited English Proficiency ("LEP") students. See Spellings, 453 F.Supp.2d at 464.2 The Court did so because it "conclude[d]
that any consideration of the merits of either party's statutory arguments would require further development of the record." Id. at 465; see also id. at 501-02.3 Following issuance of the Motion to Dismiss Ruling, on July 12, 2007, the Secretary submitted an Amended Certified Administrative Record ("A.C.A.R.") [doc. # 132]. Soon after, the State, the Secretary and the NAACP filed their motions for judgment on the administrative record on Count IV.
A. Relevant Requirements of the No Child Left Behind Act
1. Count I sought a declaratory judgment to clarify the meaning of 20 U.S.C. § 7907(a), the so-called "unfunded mandates" provision of the Act, Count II asserted that the Secretary's interpretation of the Act violated the Spending Clause and the Tenth Amendment to the U.S. Constitution, and Count III challenged the Secretary's denials of the State's waiver requests as arbitrary and capricious under the Administrative Procedure Act (the "APA"), 5 U.S.C. § 706(2). See Second. Am. Compl. [doc. # 81], at 40-44.
2. Count IV provides:
"200. The allegations in Paragraphs 1-199 are alleged and incorporated herein by reference.
201. The Secretary's decisions to deny Connecticut its requested plan amendments constitute final decisions of an administrative agency.
202. The Secretary's decisions regarding plan amendments are governed by the standards and purposes established by the NCLB Act.
203. The Secretary's decisions to deny Connecticut its requested plan amendments are unlawful and contrary to constitutional right, power or privilege, are unsupported by the record and violate the Administrative Procedure Act. 5 U.S.C. § 706(2).
204. The Secretary's interpretation of the Unfunded Mandates Provision of the NCLB Act is unlawful and contrary to constitutional right, power or privilege, and her misinterpretation renders her administrative decisions as unlawful and contrary to constitutional right, power or privilege and in violation of the Administrative Procedure Act.
205. In violation of 20 U.S.C. § 6311(e)(1)(E), prior to denying the State's plan amendments, the Secretary failed to provide the State with an opportunity to revise its amendments, technical support or a hearing.
206. The Secretary's decisions to deny Connecticut its requested plan amendments are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, contrary to constitutional right, privilege or immunity, in excess of statutory jurisdiction, authority or limit, or short of statutory right." Second Am. Compl. [doc. # 81], at 44-45 ¶¶ 200-06.
3. In its prior ruling, the Court declined to decide whether "the Unfunded Mandates Provision and the Constitution are properly before the Court on Count IV." Spellings, 453 F.Supp.2d at 502. See generally Sch. Dist. of Pontiac v. Sec'y of U.S. Dep't of Educ.,512 F.3d 252, 253 (6th Cir.2008) ("We ... conclude that [the Act] by its terms, fails to provide clear notice of the States' obligation to incur additional costs to comply with the Act's requirements."). 4. Section 6311 states that such assessments shall "(ix) provide for—
(I) the participation of such assessments of all students;
(II) the reasonable adaptations and accommodations for students with disabilities ... necessary to measure the academic achievement of such students relative to State academic content and State student academic achievement standards; and
(III) the inclusion of limited English proficient students, who shall be assessed in a valid and reliable manner and provided reasonable accommodations on assessments administered to such students under this paragraph, including to the extent practicable, assessments in the language and form most likely to yield accurate data on what such students know and can do in academic content areas, until such students have achieved English language proficiency as determined under [20 U.S.C. § 6311(b)(7)]." 20 U.S.C. § 6311(b)(3)(C)(ix) (emphasis added).
5. The regulations revised 34 C.F.R. § 200 to provide in §. 200.2(b) as follows: "The assessment system required under this section must... (1) Be the same assessment system used to measure the achievement of all students in accordance with § 200.3 or § 200.4.... (2) Be designed to be valid and accessible for use by the widest possible range of students, including students with disabilities and students with limited English proficiency.... (3)(i) Be aligned with the State's challenging academic content and student academic achievement standards...." 67 Fed.Reg. 45040. The Secretary also revised 34 C.F.R. § 200.6 to provide that "[a] State's academic assessment system required under § 200.2 must provide for the participation of all students in the grades assessed," 67 Fed.Reg. 45041, and "do not permit an exemption from participating in the State assessment system for limited English proficient students," 67 Fed.Reg. 45042. See also 67 Fed.Reg. 45044-45 (responding to comments to the regulations and stating that "the statute does require that all students be held to the same achievement standards").
6. The alternate achievement standards and assessments for this population must meet certain criteria set forth in 34 C.F.R. § 200.1(d).
7. More recently, the Secretary adopted modified achievement standards, which the Secretary says allow for modification of "content mastery ..., but not the grade-level content standards on which those expectations are based." Cross-Mot. for J. on R. [doc. # 145], at 8; see 34 C.F.R. § 200.1(e); Improving the Academic Achievement of the Disadvantaged; Individuals With Disabilities Education Act (IDEA)—Assistance to States for the Education of Children With Disabilities, 72 Fed. Reg. 17748 (Apr. 9, 2007).
8. The State initially proposed that LEP students be exempted from the assessment requirement, but the Secretary denied this proposal. See A.C.A.R. [doc. # 132], Tab 31 at 342. The State then submitted a revised plan providing that "[e]ffective September 2003, all LEP students will participate in the state assessments, with or without accommodations...." Id., Tab 31 at 345. In October 2003, the State again noted that it had suggested that the Secretary allow a reasonable amount of time for LEP students to adjust to schools in the United States and English, but that suggestion was rejected by the Secretary. See id., Tab 30 at 306, 308, 311, 314-15. In August 2004, the State submitted a plan that would have allowed recently arrived students to be exempt from testing in their first year, though such exempted students were required to take English proficiency tests. See id., Tab 23 at 248. Finally, on January 14, 2005, the State's Commissioner of Education, Dr. Betty Sternberg, wrote to the Secretary requesting that LEP students be exempt from testing for three years. See id., Tab 20 at 194. In her February 28, 2005 response, the Secretary denied the request, and added that "final regulations are forthcoming that allow recently arrived LEP students a year to adjust to the educational system before needing to be assessed in reading/language arts...." Id., Tab 17 at 182, but also rioted that the Secretary would "not waiver [sic] in the implementation of the NCLB annual testing provisions." Id., Tab 17 at 181.
9. In her January 14, 2005 letter to the Secretary, Commissioner Sternberg requested that the State be allowed to return to out-of-level testing for special education students when deemed most appropriate, see A.C.A.R. [doc. # 132], Tab 20 at 194, but the Secretary denied that request, see id., Tab 17 at 182.
10. The State filed the current lawsuit in Federal Court three months after the denials of the proposed plan amendments. However, it did not raise the hearing issue until August 1, 2006, when it filed its Second Amended Complaint [doc. # 81], which included Count IV.
11. The NAACP also objects to the State's interpretation of the Unfunded Mandates Provision. See NAACP's Cross-Mot. for J. on R. and Opp'n to Pis.' Mot. for J. on R. [doc. # 142], at 2.
12. By contrast, the State's requests to test students in every other year (discussed in Spellings, 453 F.Supp.2d at 478-79, 501) did rely on the additional cost of testing students every year. See A.C.A.R. [doc. # 132], Tab 13, at 127, 133; Tab 4 at 29.
13. The State's January 2005 LEP waiver request stated: "Next, while the U.S. Department of Education is telling the states they can test English language learners in their primary language, the logic and effectiveness of this approach is questionable. Approximately 160 languages are spoken as the primary language in the homes of Connecticut students; the cost of developing alternative tests would be in the tens of millions of dollars. Limiting the development of alternative testing to the most frequently spoken language —Spanish, spoken by a significant majority of our non-English speakers—would limit the cost but create justified equity questions. Let us suppose, however, that it were economically feasible to develop assessments in all other primary languages. If the ultimate goal is to ensure the English language and literacy skills of all students, testing students in their non-English primary language would miss the point. So, too, would testing students in English the first day they come to the United States and enter our schools. Our proposal is that there be a reasonable length of time—in our view, three years—for students to be in our schools learning English before being tested in English in reading, math and science." A.C.A.R. [doc. # 132], Tab 20 at 194.