New arguments in a challenge to the No Child Left Behind Act must have been compelling because Ninth Circuit Judge Dorothy Nelson has changed her mind.
In a replacement opinion issued today, Nelson now agrees that a group of public school children and their parents have standing to challenge the definition of “highly qualified teachers.” The new majority opinion, authored by Judge William Fletcher, which Nelson joins, also finds that an expanded definition of the term “highly qualified” is invalid — a win for the students who claim that the Education Department’s tinkering with that definition has allowed a disproportionate number of lesser qualified teachers into classrooms with low-income and minority students.
Nelson originally authored the majority opinion saying the students lacked standing.
John Affeldt, a lawyer with Public Advocates in San Francisco, attributes the new victory to Nelson coming around to realizing she misunderstood a legal point.
“I think it was our briefs,” Affeldt said.
In today’s opinion, Judge Richard Tallman sticks to his guns in finding that the students don’t have standing and writes the dissent.
The court denied en banc review and sent the case back to Northern District Judge Phyllis Hamilton, where Affeldt hopes to get summary judgment in the students’ favor, with the goal of getting a more “equitable” distribution of lesser qualified teachers throughout schools.