1 Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954).
2 See id.; Scott Joftus, Alliance for Excellent Educ., Every Child a Graduate: A Framework for an Excellent Education for All Middle and High School Students 1 (Sept. 2002), available at http://www.all4ed.org/publications/EveryChildAGraduate/every.pdf. The number of children at risk may actually be higher. See 148 Cong. Rec. H6780 (daily ed. Sept. 30, 2002) (statement of Rep. Visclosky).
3 See Joftus, supra note 2, at 1.
4 See 146 Cong. Rec. S3232 (daily ed. May 2, 2000) (statement of Sen. Gregg); Joftus, supra note 2, at 1.
5 See 146 Cong. Rec. S3235 (daily ed. May 2, 2000) (statement of Sen. Hutchinson); Nat’l Ctr. for Educ. Statistics, U.S. Dep’t of Educ., The Condition of Education 2003 in Brief 8–10 (Andrea Livingston & John Wirt eds., 2003) [hereinafter Condition], available at http://nces.ed.gov/pubs2003/2003068.pdf.
6 146 Cong. Rec. S3232 (statement of Rep. Gregg).
7 Joftus, supra note 2, at 1.
8 Id.
9 See 148 Cong. Rec. S6050 (daily ed. June 26, 2002) (statement of Sen. Kennedy); Nat’l Ctr. for Educ. Statistics, U.S. Dep’t of Educ., Status and Trends in the Education of Blacks 48 (Sept. 2003), available at http://nces.ed.gov/pubs2003/
2003034.pdf; Nat’l Ctr. for Educ. Statistics, U.S. Dep’t of Educ., The Social Context of Education 1 (July 1997) [hereinafter Social Context], available at http://nces.ed.gov/
pubs97/97981.pdf.
10 See Joftus, supra note 2, at 1–2 (recognizing that many teachers in low-performing schools are underqualified). See Campaign for Fiscal Equity v. State, 655 N.E.2d 611, 666–67 (N.Y. 1995), rev’d on other grounds, 801 N.E.2d 326 (N.Y. 2003), for further elaboration of the term “educational opportunity.”
11 Molly McUsic, The Law’s Role in the Distribution of Education: The Promises and Pitfalls of School Finance Litigation, in Law and School Reform: Six Strategies for Promoting Educational Equity 88, 88 (Jay P. Heubert ed., 1999).
12 See id. at 89.
13 See 347 U.S. at 493. See generally Social Context, supra note 9 (examining differences between high- and low-poverty schools).
14 See generally Social Context, supra note 9. For the purposes of this Note, “educational opportunity” refers to these indicators, and “educational equity” refers to equal access to educational opportunity. See generally McUsic, supra note 11 (providing a more detailed discussion of these topics).
15 See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973); Peter W. v. San Francisco, 131 Cal. Rptr. 854, 855 (Ct. App. 1976).
16 Pub. L. No. 89-10, 79 Stat. 27 (1965) (current version at 20 U.S.C. � 6301 (2002)).
17 Pub. L. No. 107-110, 115 Stat. 1425 (2001) (codified at 20 U.S.C. � 6301).
18 See George W. Bush, No Child Left Behind 3, available at http://www.whitehouse.gov/news/reports/no-child-left-behind.pdf (last visited Apr. 6, 2004).
19 See infra notes 24–51 and accompanying text.
20 See infra notes 52–114 and accompanying text.
21 See infra notes 115–214 and accompanying text.
22 See infra notes 215–309 and accompanying text.
23 See infra notes 215–309 and accompanying text.
24 See Kevin P. McJessy, Contract Law: The Proper Framework for Litigating Educational Liability Claims, 89 Nw. U. L. Rev. 1768, 1773 (1995).
25 See infra notes 27–49 and accompanying text for further discussion of constitutional claims and educational malpractice claims. Plaintiffs have also advanced common-law theories of recovery under misrepresentation and breach of contract. See, e.g., Brown v. Compton Unified Sch. Dist., 80 Cal. Rptr. 2d 171, 171 (Ct. App. 1998); Paladino v. Adelphi Univ., 454 N.Y.S.2d 868, 869–70 (App. Div. 1982). A detailed discussion of these claims is beyond the scope of this Note, but readers may consult John G. Culhane, Reinvigorating Educational Malpractice Claims: A Representational Focus, 67 Wash. L. Rev. 349 (1992) or Todd A. DeMitchell & Terri A. DeMitchell, Statutes and Standards: Has the Door to Educational Malpractice Been Opened?, 2003 BYU Educ. & L.J. 485 (2003) for further information. Frequently, claims brought under state constitutions or statutes have been denied for the same policy reasons as have common-law claims. See, e.g., D.S.W. v. Fairbanks No. Star Borough Sch. Dist., 628 P.2d 554, 556 (Alaska 1981); Peter W. v. San Francisco, 131 Cal. Rptr. 854, 860–61 (Ct. App. 1976). But see B.M. v. State, 649 P.2d 425, 427 (Mont. 1982) (allowing educational malpractice claims to go forward based on state statutory duty of care).
26 See supra note 25 and accompanying text. See infra notes 29–49 and accompanying text for further discussion.
27 See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 4–5 (1973); Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717, 725 (Tex. 1995); Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 190 (Ky. 1989).
28 See, e.g., Rodriguez, 411 U.S. at 4–5; Edgewood, 917 S.W.2d at 725; Rose, 790 S.W.2d at 190; see also McUsic, supra note 11, at 89.
29 See Rodriguez v. San Antonio Indep. Sch. Dist., 337 F. Supp. 280, 285 (W.D. Tex. 1971), rev’d, 411 U.S. at 1; Serrano v. Priest, 487 P.2d 1241, 1244 (Cal. 1971).
30 411 U.S. at 35.
31 Id. at 4–5.
32 See id. at 35.
33 See, e.g., Plyler v. Doe, 457 U.S. 202, 221 (1982) (stating that education is not a right guaranteed by the U.S. Constitution). But cf. Kardmas v. Dickinson Pub. Sch, 487 U.S. 450, 466 n.1 (1988) (Marshall, J., dissenting) (referring to Rodriguez as having left open the question of whether a deprivation of access to a minimally adequate education would violate a fundamental constitutional right); Papasan v. Allain, 478 U.S. 265, 285 (1986) (observing that the Court has not determined definitively that a minimally adequate education is not a fundamental right).
34 See, e.g., Edgewood, 917 S.W.2d at 726; Abbot v. Burke, 575 A.2d 359, 363 (N.J. 1990); Rose, 790 S.W.2d at 215. A detailed discussion of school finance litigation is beyond the scope of this Note, but readers may want to consult Campaign for Fiscal Equity v. State, 719 N.Y.S.2d 475 (App. Div. 2001) for further discussion.
35 See Edgewood, 917 S.W.2d at 726; 148 Cong. Rec. S6050 (daily ed. June 26, 2002) (statement of Sen. Kennedy); see also William Hussar & William Sonnenberg, Trends in Disparities in School District Expenditures per Pupil 31 (Jan. 2000), available at http://nces.ed.gov/pubs2000/2000020.pdf.
36 See McUsic, supra note 11, at 88.
37 Id. at 89.
38 See Campaign for Fiscal Equity, 655 N.E.2d at 667; Rose, 790 S.W.2d at 218; Joftus, supra note 2, at 1. Campaign for Fiscal Equity and Rose provide detailed examples of how courts have defined adequate education. See Campaign for Fiscal Equity, 655 N.E.2d at 661, 667; Rose, 790 S.W.2d at 212 & n.22.
39 See, e.g., Ross v. Creighton Univ., 957 F.2d 410, 412 (7th Cir. 1992); Fairbanks, 628 P.2d at 555; Peter W., 131 Cal. Rptr. at 855.
40 Culhane, supra note 25, at 371.
41 See Prosser and Keeton on the Law of Torts � 30 (W. Page Keeton ed., 5th ed. 1984).
42 See, e.g., Ross v. Creighton Univ., 740 F. Supp. 1319, 1327 (N.D. Ill. 1990) (“Educational malpractice is a tort theory beloved of commentators, but not of courts.”), overruled on other grounds, 957 F.2d at 417; Compton Unified Sch. Dist., 80 Cal. Rptr. 2d at 172; Peter W., 131 Cal. Rptr. at 861.
43 See Hunter v. Bd. of Educ., 439 A.2d 582, 584 (Md. 1982); Fairbanks, 628 P.2d at 556; Peter W., 131 Cal. Rptr. at 861.
44 See Peter W., 131 Cal. Rptr. at 861.
45 Id. at 855.
46 Id. at 856.
47 See id. at 858.
48 See id. at 860–61.
49 See Peter W., 131 Cal. Rptr. at 861; see, e.g., Fairbanks, 628 P.2d at 556; Donohue v. Copiague Union Free Sch. Dist., 391 N.E.2d 1352, 1354 (N.Y. 1979).
50 See infra notes 52–114 and accompanying text.
51 See infra notes 52–114 and accompanying text.
52 Statement by President of the United States (Jan. 8, 2002), 2002 U.S.C.C.A.N. 1614, 1615 [hereinafter Statement].
53 See Joftus, supra note 2, at 7–11; House Educ. & the Workforce Comm., H.R.1 Conference Report Summary: President Bush’s No Child Left Behind Education Reform Bill, at http://edworkforce.house.gov/issues/107th/education/nclb/confreptsum.htm (Dec. 10, 2001, updated Oct. 2002) [hereinafter Conference Report Summary]; Indep. Review Panel (IRP), Improving the Odds: A Report on Title I from the Independent Review Panel 2 (2001), available at http://www.ctredpol.org/pubs/improvingodds reporttitlei_
irp/improvingoddsreporttitleipanel.pdf.
54 See Conference Report Summary, supra note 53; Judith A. Winston, Achieving Excellence and Equal Opportunity in Education: No Conflict of Laws, 53 Admin. L. Rev. 997, 1014 (2001); The Achievement Gap, Educ. Week, Jan. 21, 2004, at 16, available at http://www.edweek.org/ew/
ewstory.cfm?slug=19Brown-b1.h23&keywords=The%20Achievement%20Gap.
55 See infra notes 56–62 and accompanying text for further discussion of legislation aimed at improving educational opportunity for disadvantaged students.
56 Pub. L. No. 107-110, 115 Stat. 1425 (2001) (codified at 20 U.S.C. � 6301 (2002)). The final regulations were issued by the Department of Education and published on December 2, 2002. 34 C.F.R. � 200 (2002).
57 See Pub. L. No. 89-10, 79 Stat. 27 (1965) (current version at 20 U.S.C. � 6301); Peter Zamora, Note, In Recognition of the Special Educational Needs of Low-Income Families?: Ideological Discord and Its Effects Upon Title I of the Elementary and Secondary Education Acts of 1965 and 2001, 10 Geo. J. on Poverty L. & Pol’y 413, 424 (2003).
58 See Pub. L. No. 89-10 � 201, 79 Stat. 27; IRP, supra note 53, at 2.
59 See 146 Cong. Rec. S3232 (daily ed. May 2, 2000) (statement of Sen. Gregg); IRP, supra note 53, at 2–3.
60 Improving America’s Schools Act of 1994, Pub. L. No. 103-382, 108 Stat. 3518 (current version at 20 U.S.C. � 6301); see also IRP, supra note 53, at 3.
61 See S. Rep. No. 103-292 (1994), LEXIS, 103 S. Rpt. 292; see also IRP, supra note 53, at 4.
62 See Leave No Child Behind: Hearing Before the House Committee on Education and the Workforce, 107th Cong. 2 (2001) (statement of Rep. John Boehner, Chair, Committee on Education and the Workforce), available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=107
_house_hearings&docid=f:77901.pdf; 147 Cong. Rec. E437 (daily ed. Mar. 22, 2001) (statement of Rep. Boehner).
63 See Statement, supra note 52, at 1614 (“America’s schools will be on a new path of reform and a new path of results.”).
64 See 20 U.S.C. � 6301; 147 Cong. Rec. H2188 (daily ed. May 16, 2001) (statement of Rep. Ballenger).
65 See Bush, supra note 18, at 2. This Note focuses on several of the many provisions of the Act. See infra notes 67–85 and accompanying text. Throughout this Note, the term “school district” includes “local educational agency,” as used in NCLB. See, e.g., 20 U.S.C. � 6301.
66 See infra notes 67–85 and accompanying text for further discussion.
67 20 U.S.C. � 6311(b)(3)(C)(i)–(ii).
68 See id. Students are to be assessed at least once per period during grades 3 through 5, 6 through 9, and 10 through 12, in mathematics and reading/language arts and, beginning in 2007–2008, in science. Id. � 6311(b)(3)(C)(v).
69 Id. � 6311(b)(3)(C)(ii)–(iii).
70 Id. � 6311(b)(3)(C)(xiii), (h)(1)(C)(i)–(ii).
71 Id. � 6311(b)(2)(F).
72See 20 U.S.C. � 6314(b)(1)(I) (providing that effective, timely additional assistance to struggling students shall include identification of the difficulties and sufficient information on which to base effective assistance).
73 See 147 Cong. Rec. H1179 (daily ed. Mar. 27, 2001) (statement of Rep. Keller) (characterizing transfer and supplemental services options as a “safety valve” for students trapped in “persistently failing schools”); Bush, supra note 18, at 7.
74 20 U.S.C. � 6311(b)(2)(E)–(H). NCLB defines Adequate Yearly Progress (“AYP”) as targeted increments that a school or school district must reach on a yearly basis in order to demonstrate by 2014 that one-hundred percent of all students participating in assessments have achieved proficiency. See id.
75 See id. � 6316.
76 Id. � 6316(b)(1)(E).
77 Id. � 6316(b)(11). This right is qualified in that NCLB directs school districts in this situation, to the extent practicable, to establish a cooperative agreement with other local educational agencies. Id. If school districts are unable to establish such an agreement, students may not be able to transfer. See id.
78 Id. � 6316(b)(6), (b)(1)(E)(ii).
79 20 U.S.C. � 6316(b)(6), (b)(8)–(10), (e). If the school fails to make adequate progress for a fourth year, the district must implement corrective actions, such as replacing staff or changing the curriculum, and after a fifth year, the school would be identified for reconstitution, and required to alter its governance structure. See id.; Erik Robelen, An ESEA Primer, Educ. Week, Jan. 9, 2002, at 28, available at http://www.edweek.org/ew/ew_printstory.cfm?
slug=16eseabox.h21.
80 See 20 U.S.C. �� 6311(b)(2)(E)–(H), 6316; 147 Cong. Rec. H1179 (daily ed. Mar. 27, 2001) (statement of Rep. Keller).
81 See infra notes 82–85 and accompanying text.
82 See 20 U.S.C. � 7912.
83 See id. � 6318(a)(2), (c)–(e); see also Paul Weckstein, Enforceable Rights to Quality Education, in Law and School Reform: Six Strategies for Promoting Educational Equity 306, 330 (Jay P. Heubert ed., 1999) (characterizing parent involvement requirements of Title I as “substantial, detailed rights”).
84 20 U.S.C. � 6311(h)(1)(B)(ii), (h)(1)(C)(vii)–(viii), (h)(2)(B), (h)(2)(E) (requiring states and school districts to keep parents informed of their progress toward requirements including AYP and the requirement imposed by � 6319(a)(3) that all public school teachers be highly qualified by the end of the 2005–2006 school year). Section 6312(g)(1)(A) requires that parents be notified if a child has been identified as limited English proficient and will be placed in a language instruction education program, and � 6312(g)(1)(A)(viii)(aa) gives parents the right to remove their child from this program, once informed. See id. � 6312(g)(1)(A).
85 See id. � 6311(h)(2)(E).
86 See 147 Cong. Rec. E929 (daily ed. May 24, 2001) (statement of Rep. Rogers); 146 Cong. Rec. S3233 (daily ed. May 2, 2000) (statement of Sen. Gregg) (“[This] is a debate over the fundamental question of how we improve education for our children, and specifically for our low-income children.”); Bush, supra note 18 (“The federal role in education is not to serve the system. It is to serve the children[.]”). But see 147 Cong. Rec. E976 (daily ed. May 25, 2001) (statement of Rep. Rangel) (suggesting that the focus of the bill is America’s economic growth and linking the education of America’s poor to the country’s economic future).
87 20 U.S.C. � 6301; see 149 Cong. Rec. S194 (daily ed. Jan. 10, 2003) (statement of Sen. Gregg) (“[T]he purpose of the bill is to make sure kids learn. . . . They now have a law they can follow which allows them to make sure that kids do learn.”); Press Release, Committee on Education and the Workforce, House Speaker J. Dennis Hastert (R-IL) Praises Passage of Education Reform (Dec. 13, 2001), http://edworkforce.house.gov/press/press107/
hastert121301.htm (“This common-sense education plan is designed to give our children every possible opportunity to learn, succeed in school and go on to college.”).
88 See generally Donald Payne, Reauthorization of the Elementary and Secondary Education Act: Challenges Throughout the Legislative Process, 26 Seton Hall Legis. J. 315 (2002).
89 Id. at 321–22.
90 See supra notes 65–85 and accompanying text and infra notes 91–97 and accompanying text for further discussion of these provisions.
91 See H.R. Rep. No. 107-063, pt. 1, at 1242 (2001), http://www.congress.gov/cgi-bin/
cpquery/R?cp107:FLD010:@1(hr063).
92 See 147 Cong. Rec. E2327 (daily ed. Dec. 19, 2001) (statement of Rep. Frelinghuysen); Bush, supra note 18, at 3.
93 See 147 Cong. Rec. E2327; Bush, supra note 18, at 2–3; see also Ellen R. Delisio, Paige, Kennedy on No Child Left Behind Act, Educ. World, at http://www.educationworld.com/
a_issues/issues309.shtml (May 2, 2002) (explaining that NCLB provides more educational and financial accountability because it provides parents with more information about schools).
94 See, e.g., White House, Fact Sheet: No Child Left Behind Act, at http://www.whitehouse.gov/news/releases/2002/01/20020108.html (Jan. 2002) [hereinafter Fact Sheet]. For further elaboration of parents’ rights, see John Boehner & Judd Gregg, Title I Resources for Reform: New Hope for America’s Most Disadvantaged Public Schools 6 (July 9, 2002), available at http://edworkforce.house.gov/
issues/107th/education/nclb/boehnergreggreport.pdf.
95 See H.R. Rep. No. 107-063, supra note 91, at 1242; Press Release, House-Senate Education Conference Report: No Child Left Behind (revised Dec. 12, 2001), http://www.ed.
gov/news/pressreleases/2001/12/12112001b.html. But see Thomas Toch, Bush’s Big Test, Wash. Monthly, Nov. 2001, at 12, 16 (stating that the smaller size of these subgroups exacerbates problems in the use of testing to determine which schools are in need of improvement, because of regular fluctuations in test scores from year to year).
96 See, e.g., 147 Cong. Rec. E2329–30 (daily ed. Dec. 19, 2001) (statement of Rep. Petri); Boehner & Gregg, supra note 94, at 5–6; Fact Sheet, supra note 94.
97 See House Educ. & the Workforce Committee, Fact Sheet: FY 2004 Appropriations, Keeping Education Among the Highest Priorities, Even in a Time of Economic Uncertainty and Fiscal Restraint (July 23, 2003), at http://edworkforce.house.gov/
issues/108th/education/nclb/factsheet072303.htm; House Educ. & the Workforce Committee, Fact Sheet: No Child Left Behind: Spending More Than Ever—And Expecting More Than Ever (July 23, 2003), at http://edworkforce.house.gov/issues/108th/edu
cation/nclb/factvfiction072303.htm [hereinafter Spending]. But see 149 Cong. Rec. S100 (daily ed. Jan. 9, 2003) (statement of Sen. Durbin) (stating that President Bush proposed only a 3.6% increase in funding of the ESEA, which Congress increased to 20%).
98 See infra notes 99–107 and accompanying text for further discussion of criticism of NCLB.
99 See infra notes 100–102 and accompanying text for further discussion of criticism of NCLB’s focus on testing.
100 See, e.g., H.R. Rep. No. 107-063, supra note 91, at 1240 (“[W]e remain concerned that the bill goes too far in its reliance on standardized testing.”); 147 Cong. Rec. H137 (daily ed. Jan. 31, 2001) (statement of Rep. Underwood) (“I am concerned about the overreliance of testing as the only measure of educational successes. . . . [W]e must think about other ways to measure the school environment . . . .” ); Toch, supra note 95, at 14. But cf. Spending, supra note 97 (quoting President Bush as saying that “if you’re teaching to the test, and the test is designed to confirm that children are making progress in reading and math, that’s the whole idea.”).
101 See Spending, supra note 97 (asserting that NCLB provides states with enough money to administer the required federal testing, but acknowledging that testing costs could be higher if states choose to design and implement more intricate testing systems than those required under the bill); Toch, supra note 95, at 15; Press Release, Committee on Education and the Workforce, Boehner Backs Secretary Paige’s Strong Stand on State Education Standards (Oct. 23, 2002), http://edworkforce.house.gov/press/press107/paigeletter102302.htm (noting that some states have lowered standards and expectations to hide the low performance of their schools or to remove schools from lists of low performers).
102 See Nat’l Educ. Ass’n (NEA), No Child Left Behind?, NEA Today, May 2003, http://www.nea.org/neatoday/0305/cover.html. NCLB has also been charged with leaving behind bilingual students. See, e.g., 147 Cong. Rec. E1143 (daily ed. June 19, 2001) (statement of Rep. Rodriguez); 147 Cong. Rec. E992 (daily ed. May 25, 2001) (statement of Rep. Pastor). Many critics also claim that NCLB is only the first step in privatizing public education, a goal they believe is at the heart of the bill, because of its transfer and mandated corrective-action provisions. See, e.g., 148 Cong. Rec. S8151 (daily ed. Sept. 4, 2002) (statement of Sen. Kennedy).
103 See 149 Cong. Rec. S100 (daily ed. Jan. 9, 2003) (statement of Sen. Durbin). But see Spending, supra note 97 (asserting that NCLB is neither unfunded, nor a mandate; the bill did not promise a particular amount of money, and states are free to opt out of receiving federal education funds).
104 See 147 Cong. Rec. E1143 (“In the name of accountability, more testing will be mandated with little financial support from the federal government.”). But see Spending, supra note 97 (stating that several studies show the federal government is giving states more than enough money to pay for the testing required by NCLB).
105 See NEA, supra note 102; David E. Sanger, Bush, at School, Promotes Education Bill, N.Y. Times, May 7, 2002, at A18. But see Spending, supra note 97 (asserting that NCLB does not impose any overall funding levels for fiscal year 2003 or beyond; it only authorizes Congress to spend “such sums as may be required” overall to implement education reforms authorized or promised by NCLB). Where there are specific funding levels, they are only spending caps, not promises. See id.
106 See, e.g., 148 Cong. Rec. E1561 (daily ed. Sept. 12, 2002) (statement of Rep. Moore); 148 Cong. Rec. S4341 (daily ed. May 15, 2002) (statement of Sen. Durbin). Senator Kennedy, initially a sponsor of the bill, has expressed concern repeatedly with continued failures to fund it at acceptable levels. See, e.g., 148 Cong. Rec. S8151.
107 See, e.g., 149 Cong. Rec. E2448 (daily ed. Nov. 23, 2003) (statement of Rep. Schiff); 149 Cong. Rec. H3766 (daily ed. May 8, 2003) (statement of Rep. Etheridge).
108 See Kegerreis v. United States, No. 02-2232, 2003 U.S. Dist. LEXIS 18012, at *8 (D. Kan. Oct. 9, 2003); Ronald D. Wenkart, The No Child Left Behind Act and Congress’ Power to Regulate Under the Spending Clause, 174 Educ. Law Rep. 589, 597 (2003) (suggesting that several provisions of NCLB exceed Congress’s Spending Clause powers).
109 2003 U.S. Dist. LEXIS 18012, at *8.
110 Id. at *3–6, *8.
111 Id. at *7.
112 See S. Rep. No. 107-7, at 151 (2001), available at http://frwebgate.access.gpo.gov/
cgi-bin/getdoc.cgi?dbname=107_cong_reports&docid=f:sr007.107.pdf (stating that there is no federal oversight of the quality of tests chosen by states); Bush, supra note 18, at 8 (explaining that states select and design their own assessments).
113 See William L. Taylor, Title I as an Instrument for Achieving Desegregation and Equal Educational Opportunity, 81 N.C. L. Rev. 1751, 1759–60 (2003) (discussing the Department of Education’s “culture of nonenforcement”); Catherine Gewertz, Tutoring Aid Falling Short of Mandate, Educ. Week, Feb. 25, 2004, at 1 (stating that many students eligible for tutoring services are not receiving them); Mary Leonard, Schools Reported Lagging New Law, Boston Globe, Jan. 4, 2003, at A3 (noting that states are moving slowly in providing parents of students in underperforming schools with supplemental educational services or school choice); Lynn Olson, Data Doubts Plague States, Federal Law, Educ. Week, Jan. 7, 2004, at 1 (indicating that many states have given schools leeway in meeting progress goals). Many states have failed to meet even the less demanding requirements of the Improving America’s Schools Act of 1994, yet no state has lost federal funding as a result of this failure. See 147 Cong. Rec. E989 (daily ed. May 25, 2001) (statement of Rep. Jones); Toch, supra note 95, at 15 (noting that only seventeen states have implemented the tests required by the Improving America’s Schools Act of 1994).
114 See Taylor, supra note 113, at 1759–60; Leonard, supra note 113, at A3; Toch, supra note 95, at 15. The ESEA, NCLB’s predecessor, was enforced privately in 1973. See Nicholson v. Pittenger, 364 F. Supp. 669, 676 (E.D. Pa. 1973). In 1973, in Nicholson v. Pittenger, the Federal District Court for the Eastern District of Pennsylvania enjoined the Secretary of the Pennsylvania Department of Education from granting ESEA Title I funds to the School District of Philadelphia for the 1973–1974 school year, unless the School District could demonstrate that it had met the statute’s requirements. Id. The plaintiffs, poor parents of children attending School District of Philadelphia schools, alleged that the state had approved Philadelphia’s applications for funding without making several determinations required by the statute as conditions of funding. Id. at 671. Although the court granted plaintiffs’ requests for declaratory judgment and an injunction, it did not explicitly state the legal theory under which it granted relief. Id. at 673–76.
115 See, e.g., Peter W. v. San Francisco, 131 Cal. Rptr. 854, 855 (Ct. App. 1976); The Achievement Gap, supra note 54, at 16; Condition, supra note 5, at 8–10. See supra notes
27–49, 63–65 and accompanying text for further discussion of these legal theories and their failure to achieve educational equity.
116 See 147 Cong. Rec. E437 (daily ed. Mar. 22, 2001) (statement of Rep. Boehner); Delisio, supra note 93.
117 See 147 Cong. Rec. E989 (daily ed. May 25, 2001) (statement of Rep. Jones); Leonard, supra note 113, at A3; Toch, supra note 95, at 15.
118 See 147 Cong. Rec. E989; Leonard, supra note 113, at A3; Toch, supra note 95, at 15.
119 See supra notes 65–85 and accompanying text for discussion of the benefits provided by NCLB.
120 Bradford C. Mank, Suing Under � 1983: The Future After Gonzaga University v. Doe, 39 Hous. L. Rev. 1417, 1428 (2003).
121 Id. at 1431.
122 David E. Engdahl, The Spending Power, 44 Duke L.J. 1, 93 (1994).
123 Mank, supra note 120, at 1432.
124 Id. at 1431–32.
125 See infra notes 129–214 for discussion of efforts to enforce benefits secured under grant-in-aid programs.
126 See Bossier Parish Sch. Bd. v. Lemon, 370 F.2d 847, 852 (5th Cir. 1967); Mank, supra note 120, at 1481. Implied private right of action is characterized as the idea that a court may “find” legislative intent to permit an individual to enforce a federal statute in the absence of express language to that effect. See infra notes 129–145 for further discussion of this cause of action. Section 1983 provides the following:
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 in an action at law, suit in equity, or other proper proceeding for redress . . . .
42 U.S.C. � 1983 (2000).
127 See Mank, supra note 120, at 1426–27, 1450 (suggesting that the U.S. Supreme Court has increasingly narrowed its interpretation of implied private rights of action and enforceability of federal statutes through � 1983); Anthony John Waters, The Property in the Promise: A Study of the Third Party Beneficiary Rule, 98 Harv. L. Rev. 1109, 1173 (1985). See infra notes 129–214 for further discussion of the use and development of these causes of action.
128 See Cannon v. Univ. of Chi., 441 U.S. 677, 735 (1979) (Powell, J., dissenting); Mank, supra note 120, at 1423.
129 See 377 U.S. 426, 430–31 (1964); Mank, supra note 120, at 1423.
130 See 377 U.S. at 427.
131 See id. at 432; Mank, supra note 120, at 1423.
132 See Piper v. Chris-Craft Indus., Inc., 430 U.S. 1, 25 (1976) (reviewing use of implied private right of action theory); Mank, supra note 120, at 1423.
133 See 422 U.S. 66, 68–69 (1975).
134 See id. at 68.
135 Id. at 78.
136 See, e.g., Alexander v. Sandoval, 532 U.S. 275, 286–87 (2001); Suter v. Artist M., 503 U.S. 347, 363 (1992); Middlesex County Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 17 (1981).
137 See, e.g., Alexander, 532 U.S. at 286, 293 (focusing on Congress’s intent and finding no implied private right of action to enforce disparate-impact regulations promulgated under � 602 of Title VI); Sea Clammers, 453 U.S. at 13, 14 (focusing on legislative intent and finding no private right of action to enforce violations of the Federal Water Protection Control Act or the Marine Protection, Research, and Sanctuaries Act of 1972); Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 18 (1981) (finding no private right of action to enforce the Developmentally Disabled Assistance and Bill of Rights Act because Congress only intended it to be a funding statute).
138 See Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15–16 (1979); Mank, supra note 120, at 1425.
139 See Alexander, 532 U.S. at 288.
140 Id. at 293.
141 Id. at 279.
142 See id. at 288–89, 293 (noting that statutes focusing on the party regulated rather than the party protected create no private right of action, and finding none under this statute).
143 See id. at 288.
144 See 532 U.S. at 288, 293.
145 See Mank, supra note 120, at 1426–27.
146 See Civil Rights Act of 1871, ch. 22, � 1, 17 Stat. 13 (1871) (current version at 42 U.S.C. � 1983 (2000)); Mank, supra note 120, at 1427.
147 See 42 U.S.C. � 1983. See supra note 126 for additional text of � 1983.
148 See Mank, supra note 120, at 1428.
149 See 448 U.S. 1, 3–4 (1980).
150 Id. at 2–3.
151 See id. at 4.
152 See id.; Mank, supra note 120, at 1430.
153 See 451 U.S. at 31–32 (1981); Mank, supra note 120, at 1434.
154 451 U.S. at 6.
155 See id. at 18.
156 See id. at 17–18.
157 Id. at 17.
158 Id.
159 See Pennhurst, 451 U.S. at 17.
160 See id.
161 See id.
162 See, e.g., Gonzaga Univ. v. Doe, 536 U.S. 273, 290 (2002); Blessing v. Freestone, 520 U.S. 329, 340–41 (1997).
163 536 U.S. at 276, 278. This decision limited use of � 1983 to instances where plaintiffs can demonstrate that there is clear and unambiguous evidence of Congress’s intent to establish individual rights on behalf of the plaintiff and those similarly situated. See Mank, supra note 120, at 1421.
164 See Gonzaga, 536 U.S. at 280.
165 Id. at 281.
166 See id. at 283 (asserting that implied private right of action and � 1983 cases are not distinct from each other).
167 See id. at 287.
168 See id. at 283, 284, 285–86; Alexander, 532 U.S. at 286; see also Gonzaga, 536 U.S. at 297 (Stevens, J., dissenting) (indicating that the rights-creating language required by the Court for a � 1983 claim has previously been used only for implied private rights of action cases).
169 See Ass’n of Cmty. Orgs. for Reform Now v. New York City Dep’t of Educ., 269 F. Supp. 2d 338, 339 (S.D.N.Y. 2003).
170 See id. at 347.
171 See id. at 342.
172 Id. at 343.
173 See id. at 344, 347.
174 See infra notes 233–309 for further discussion of the application of legal theories for private enforcement of NCLB.
175 See Pennhurst, 451 U.S. at 17; Engdahl, supra note 122, at 71–72 (asserting that Pennhurst’s characterization of spending conditions as a contract has been affirmed).
176 451 U.S. at 17.
177 See id.; see also Engdahl, supra note 122, at 78–79.
178 Pennhurst, 451 U.S. at 17.
179 See id. at 18.
180 See id.
181 See id. at 24 (noting that when Congress imposes an affirmative obligation on the states, it usually makes a more substantial contribution to defray costs, and noting that for a state to be bound by the conditions imposed by a statute, its potential obligations may not be indeterminate).
182 See Waters, supra note 127, at 1188.
183 See Lawrence v. Fox, 20 N.Y. 268, 275 (1859). Fox was the first case to hold that a third party may enforce a contractual obligation made for the plaintiff’s benefit. See Waters, supra note 127, at 1115. Waters describes the third-party rule as a merger between contract and quasi-contract. See id.
184 See Waters, supra note 127, at 1176, 1187–88.
185 See Restatement (Second) of Contracts � 302 (1979).
186 Restatement (Second) of Contracts, supra note 185, � 302 (also defining an incidental beneficiary, who does not have rights under a contract, as “a beneficiary who is not an intended beneficiary”). The Second Restatement modified the First Restatement’s formulation of the third-party beneficiary rule, which had defined “donee” and “creditor” beneficiaries, and prohibited recovery under a contract by incidental beneficiaries—those who were neither donee nor creditor beneficiaries. See id.; Restatement (First) of Contracts � 133 (1932).
187 See Waters, supra note 127, at 1172, 1206–07 (characterizing accommodation of these beneficiaries as consonant with the broad equitable principles informing the rule).
188 Id.
189 Id.
190 Id.
191 See Restatement (Second) of Contracts, supra note 185, � 313 (applying the third-party beneficiary rule to contracts with a government or governmental agency). See the text accompanying supra note 186 for the language of the third-party beneficiary rule.
192 Restatement (Second) of Contracts, supra note 185, � 313(1).
193 Id. � 313 cmt. a.
194 See id. � 313(2).
195 See id. � 313 cmt. a, illus. 1–2. Beneficiaries of these types of contracts frequently seek to recover damages for harm caused by their reliance on a promise. Waters, supra note 127, at 1198–99, 1204–05; see also H.R. Moch Co. v. Rensselaer Water Co., 159 N.E. 896, 897–98 (N.Y. 1928) (concluding that in a lawsuit brought by resident of City of Rennselaer against owner of company that had promised to supply water to fire hydrants at a specified pressure, plaintiff was not an intended beneficiary, in part because use of the third-party beneficiary doctrine in this context could have imposed a crushing financial burden).
196 See Waters, supra note 127, at 1201.
197 See Restatement (Second) of Contracts, supra note 185, � 313; Waters, supra note 127, at 1201.
198 See Waters, supra note 127, at 1201–02, 1204–05.
199 See Bossier Parish, 370 F.2d at 852; Fuzie v. Manor Care, Inc., 461 F. Supp. 689, 697, 701 (N.D. Ohio 1977).
200 See 370 F.2d at 850.
201 See id.
202 See id. (characterizing acceptance of funds as further ratification of the contract).
203 See id.; see also Waters, supra note 127, at 1184 (characterizing Bossier Parish as an early civil rights case that vindicated both statutory and constitutional rights through the use of the third-party beneficiary rule).
204 See 461 F. Supp. at 701.
205 Id. at 691.
206 See id. at 697, 701. Waters asserts that third-party beneficiary claims are equivalent to the first prong of the Cort test that the Court uses in evaluating implied private right of action claims. See Waters, supra note 127, at 1174. Unlike a private right of action plaintiff, a third-party beneficiary claimant need only establish membership in the class for whose special benefit Congress enacted the federal statute. Id.
207 See Waters, supra note 127, at 1181.
208 See, e.g., Wilder v. Va. Hosp. Ass’n, 496 U.S. 498, 510 (1990); Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 104, 109 (1989) (finding that applicant for renewal of taxicab franchise was intended beneficiary of statutory scheme under National Labor Relations Act).
209 See Wilder, 496 U.S. at 510.
210 See id. The Court also noted that (1) Medicaid is a voluntary program in which states may choose to participate; (2) Congress enacted the Medicaid Act in 1965 and passed the Boren Amendment in response to problems it perceived; and (3) there is a right enforceable by healthcare providers under � 1983. See id. at 502, 505–06, 509.
211 See Blessing, 520 U.S. at 332–33.
212 See id. at 345. Cf. Wright v. Roanoke Redev. & Hous. Auth., 479 U.S. 418, 419, 421–22, 430 (1987) (holding that tenants of public housing projects had a right to have utility costs included within a rental payment capped by federal housing legislation).
213 See Blessing, 520 U.S. at 342–43.
214 See id. at 345; Wilder, 496 U.S. at 509–10.
215 See infra notes 221–225, 259–309, and accompanying text for further discussion of the ways in which NCLB may improve education.
216 See infra notes 220–225 and accompanying text.
217 See infra notes 226–309 and accompanying text.
218 See infra notes 233–257 and accompanying text.
219 See infra notes 258–309 and accompanying text.
220 See infra notes 221–225 and accompanying text.
221 See 20 U.S.C. � 6311(b)(2)(F) (2002). See supra notes 27-–38 and accompanying text for discussion of constitutional claims.
222 See 20 U.S.C. � 6316(b)(1)(A).
223 See id. See supra notes 27-–38 and accompanying text for discussion of constitutional claims. A detailed exploration of this theory is beyond the scope of this Note.
224 See supra notes 39–49 and accompanying text for a discussion of educational malpractice claims and supra notes 66–85 for a discussion of the relevant provisions of NCLB. One provision that establishes school districts’ duty to students is the requirement that schools provide activities to assist students experiencing difficulty in mastering academic achievement standards. See 20 U.S.C. � 6314(b)(1)(I).
225 See supra notes 52–97 for discussion of NCLB and the policies informing the Act. See supra notes 42–49 and accompanying text for discussion of policy reasons cited by courts denying recovery for educational malpractice.
226 See, e.g., 20 U.S.C. �� 6311(b)(2)(E)–(H), 6311(b)(3)(C), 6314(b)(1)(I), 6316(b)(1)(E). See supra notes 66–85 and accompanying text for further discussion of NCLB’s provisions.
227 See 20 U.S.C. � 6301; Statement, supra note 52, at 1615. See supra notes 52, 63–97 and accompanying text for further discussion of the goals of NCLB.
228 See Leonard, supra note 113, at A3; Olson, supra note 113, at 1; Toch supra note 95, at 15.
229 See Gewertz, supra note 113, at 1; Leonard, supra note 113, at A3.
230 See Olson, supra note 113, at 1.
231 See id.; Toch, supra note 95, at 15.
232 See Olson, supra note 113, at 1.
233 See 422 U.S. 66, 78 (1975); see, e.g., Middlesex County Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 13, 14 (1981); Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 18 (1981). See supra notes 128–145 and accompanying text for further discussion of implied private right of action.
234 See 532 U.S. 275, 288 (2001).
235See Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15 (1979). See supra notes 128–145 and accompanying text for further discussion of implied private right of action analysis.
236 See, e.g., 20 U.S.C. � 6316(b)(1)(E), (b)(6), (e) (2002).
237 See, e.g., id. � 6316(b)(1)(E), (b)(8)–(10), (e). See supra notes 67–85 and accompanying text for additional provisions of NCLB that may be interpreted as providing rights to children and their parents.
238 See, e.g., Alexander, 532 U.S. at 286, 293; Sea Clammers, 453 U.S. at 13, 14; Pennhurst, 451 U.S. at 18.
239 See 532 U.S. at 289.
240 See id.
241 See id. at 288–89. See infra notes 242–257 and accompanying text for further discussion of NCLB’s failure to meet Alexander’s narrow test as adopted in Gonzaga University v. Doe, 536 U.S. 273, 286 (2002).
242 See, e.g., Wilder v. Va. Hosp. Ass’n, 496 U.S. 498, 524 (1990); Maine v. Thiboutot, 448 U.S. 1, 4 (1980). See supra notes 149–162 and accompanying text for discussion of the Court’s use of this theory. During this time, NCLB plaintiffs probably would have been able to meet the Court’s � 1983 test by showing that Congress intended that specific NCLB provisions benefit them, that their right was neither too vague nor too amorphous to be judicially enforceable, and that the statute unambiguously imposed a binding obligation on the states. See Blessing v. Freestone, 520 U.S. 329, 340–41 (1997).
243 See 536 U.S. at 286. See supra notes 163–168 and accompanying text, and infra notes 244–257 and accompanying text, for further discussion of this case and its impact on � 1983 jurisprudence.
244 See 536 U.S. at 283, 284, 286.
245 See id. at 297 (Stevens, J., dissenting).
246 See id. at 286; Ass’n of Cmty. Orgs. for Reform Now v. New York City Dep’t of Educ., 269 F. Supp. 2d 338, 347 (S.D.N.Y. 2003). See supra notes 162–168 for further discussion of the Court’s narrowing interpretation of � 1983.
247 Reform Now, 269 F. Supp. 2d at 347.
248 See id.
249 See id. at 343, 347 (stating that after Gonzaga, the first step of the inquiry for deciding whether a statute creates an implied private right of action is the same as the analysis for determining whether the statute is enforceable through � 1983).
250 See id. at 342. See supra notes 76–79 and accompanying text for further discussion of these provisions.
251 See Reform Now, 269 F. Supp. 2d at 347. The Court in Gonzaga stated that the focus of the inquiry is whether Congress intended to confer individual rights upon a class of beneficiaries. 536 U.S. at 285–86. After citing several cases, and without explicitly holding that the � 1983 inquiry necessarily is confined to the text and structure of a statute, the Court indicated that where the text and structure of a statute do not demonstrate that Congress intends to create new individual rights, there is no basis for a private suit under implied private right of action or � 1983. See id.
252 See 532 U.S. at 288.
253 See id. See supra notes 86–107 for a discussion of NCLB’s legislative history.
254 See Gonzaga, 536 U.S. at 286; Alexander, 532 U.S. at 288; Mank, supra note 120, at 1480.
255 See Alexander, 532 U.S. at 288; Reform Now, 269 F. Supp. 2d at 343, 347; Mank, supra note 120, at 1481.
256 See Gonzaga, 536 U.S. at 286; Reform Now, 269 F. Supp. 2d at 343, 347; Mank, supra note 120, at 1481.
257 See supra notes 233–256 for further discussion of the likely failure of both private right of action and � 1983 as theories of enforcement.
258 See infra notes 259–309 and accompanying text.
259 See Restatement (Second) of Contracts, supra note 185, � 302. See supra notes 183–214 and accompanying text for further discussion of this theory and its application to federal funding contracts.
260 See Restatement (Second) of Contracts, supra note 185, � 313.
261 See 451 U.S. at 17.
262 See id.
263 See id.; see also Engdahl, supra note 122, at 78.
264 See 451 U.S. at 17–18.
265 See id. at 17–18, 24.
266 See id. See supra note 181 and accompanying text for further discussion of the Court’s decision in Pennhurst regarding requirements that statutory conditions must meet in order to bind a state.
267 Compare 20 U.S.C. � 6301 (2002), with Pennhurst, 451 U.S. at 18. See supra notes 63–65, 86–89 and accompanying text for further discussion of NCLB’s purpose clause.
268 See, e.g., 20 U.S.C. �� 6311(b)(3)(A)–(C), 6311(b)(2)(E)–(H), 6316. See supra notes 66–85 and accompanying text for further discussion of NCLB’s provisions.
269 Compare 149 Cong. Rec. H3766 (daily ed. May 8, 2003) (statement of Rep. Etheridge), and NEA, supra note 102 (asserting that the bill is continually being underfunded), with H.R. Rep. No. 107-063, supra note 91, at 1242, and Spending, supra note 97 (asserting that NCLB is adequately funded and represents a significant increase in federal funding of education reform).
270 See supra notes 66–85 and accompanying text for evidence that NCLB describes, in detail, the obligations of states under the Act.
271 See, e.g., 20 U.S.C. � 6316(b)(1)(E), (b)(6), (b)(8)(ii), (e). See supra notes 76–79 and accompanying text for further discussion of these provisions.
272 See 20. U.S.C. � 6316(b)(1)(E), (b)(6), (b)(8)(ii), (e). See supra notes 76–79 and accompanying text for further discussion of these provisions.
273 See 451 U.S. at 17–18. See supra notes 176–181 and accompanying text for further discussion of the Pennhurst guidelines.
274 See 451 U.S. at 17–18, 32.
275 See Waters, supra note 127, at 1176, 1187–88.
276 See Restatement (Second) of Contracts, supra note 185, � 302. See supra note 186 and accompanying text for further discussion of the Second Restatement’s intended beneficiary formulation.
277 See Restatement (Second) of Contracts, supra note 185, � 313(1).
278 See id. � 313; Waters, supra note 127, at 1201.
279 See Waters, supra note 127, at 1204–05; see also H.R. Moch Co. v. Rensselaer Water Co., 159 N.E. 896, 899 (N.Y. 1928).
280 See Waters, supra note 127, at 1204–05.
281 See Restatement (Second) of Contracts, supra note 185, � 313; Waters, supra note 127, at 1204–05.
282 See Restatement (Second) of Contracts, supra note 185, � 313; Waters, supra note 127, at 1204–05.
283 See Waters, supra note 127, at 1206–07.
284 See id.
285 See id.
286 See id. (discussing Lawrence v. Fox, 20 N.Y. 268 (1859)).
287 See id.
288 See 20 U.S.C. � 6301 (2002); 149 Cong. Rec. S194 (daily ed. Jan. 10, 2003) (statement of Sen. Gregg); Press Release, supra note 87.
289 See 20 U.S.C. � 6301; Payne, supra note 88, at 315–16.
290 See 20 U.S.C. � 6316(b)(1)(E), (b)(6), (b)(8)(ii); Payne, supra note 88, at 321; Boehner & Gregg, supra note 94, at 6.
291 See 20 U.S.C. � 6318(a)(2)–(d); see also Payne, supra note 88, at 322; Boehner & Gregg, supra note 94, at 6.
292 20 U.S.C. � 6314(b)(1)(I).
293 See, e.g., id. �� 6301, 6314(b)(1)(I), 6316(b)(1)(E), 6316(b)(6), 6316(b)(11), 6316(b)(8)(ii), 6316(e). See supra notes 63–97 and accompanying text for further discussion of NCLB’s purpose.
294 See 269 F. Supp. 2d at 344.
295 See Restatement (Second) of Contracts, supra note 185, � 302.
296 See id.
297 See supra notes 63–65, 86–97 and accompanying text for further discussion of the ways in which the White House and members of Congress have characterized the purposes of NCLB. The Second Restatement of Contracts provides that a party is an intended beneficiary, and can therefore recover as a third-party beneficiary, if recognition of the beneficiary’s right to performance is appropriate to effectuate the parties’ intention and circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance. See Restatement (Second) of Contracts, supra note 185, � 302.
298 See Waters, supra note 127, at 1174. See supra note 206 and accompanying text for discussion of Waters’s assertion that a third-party beneficiary claimant need only establish membership in the class for whose special benefit Congress enacted the federal statute.
299 Compare supra note 185 and accompanying text (outlining requirements of third-party beneficiary standing), with supra notes 137–144 (outlining current requirements of implied private right of action), and supra notes 166–168 (discussing current requirements of � 1983).
300 See Waters, supra note 127, at 1181.
301 See id.
302 See Bossier Parish Sch. Bd. v. Lemon, 370 F.2d 847, 850 (5th Cir. 1967); Fuzie v. Manor Care, Inc., 461 F. Supp. 689, 701 (N.D. Ohio 1977).
303 See 370 F.2d at 850.
304 See 461 F. Supp. at 701.
305 See Blessing, 520 U.S. at 345 (declining to foreclose the possibility that a well-defined right might be enforceable); Pennhurst, 451 U.S. at 17 (characterizing funding agreements as similar to contracts and specifying requirements they must meet to bind states).
306 See Bossier Parish, 370 F.2d at 852; Fuzie, 461 F. Supp. at 701.
307 See Bossier Parish, 370 F.2d at 850; Fuzie, 461 F. Supp. at 701.
308 See, e.g., Blessing, 520 U.S. at 345; Wilder, 496 U.S. at 502, 509–510; Pennhurst, 451 U.S. at 17.
309 See 20 U.S.C. � 6301 (2002); Restatement (Second) of Contracts, supra note 185, � 302; Waters, supra note 127, at 1206–07.