[*PG667]THE POWER BEHIND THE PROMISE: ENFORCING NO CHILD LEFT BEHIND
TO IMPROVE EDUCATION
Abstract: Despite the U.S. Supreme Court’s recognition in 1954, in Brown v. Board of Education, that education is of paramount importance, six million middle and high school students are still in danger of being left behind. Less than seventy-five percent of eighth graders, fifty percent in urban schools, are graduating from high school within five years. Advocates for educational equity have appealed to the courts, achieving limited success. They have also turned to the legislature, which most recently enacted the No Child Left Behind Act of 2001 (“NCLB”). Thus far, however, the federal government has not enforced NCLB adequately. This Note argues that to protect the benefits NCLB confers upon them, parents of children attending failing schools must explore their options for private enforcement. Given the Court’s decisions within the past three years narrowing implied private right of action and � 1983, the most promising theory for enforcement of NCLB is third-party beneficiary theory.
Education is perhaps the most important function of state and local governments. . . . In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.1
Despite the U.S. Supreme Court’s recognition in 1954, in Brown v. Board of Education, that education is of paramount importance, six million middle and high school students are still in danger of being left behind.2 This problem is particularly pronounced for students attending high-poverty schools.3 Approximately twenty-five percent of [*PG668]high school students are reading at “below basic” levels; in high-poverty schools, this number may rise to over seventy percent.4 Although standardized test scores of fourth and eighth graders have increased in mathematics, geography, and U.S. history, scores of twelfth graders are either declining or showing little change.5 Improvement in test scores in the lower grades is not enough; over sixty percent of students in high-poverty schools are scoring below basic levels in math, and almost seventy percent are scoring below basic levels in science.6 Less than seventy-five percent of eighth graders are graduating from high school within five years.7 This percentage falls to fifty percent in urban schools.8 Racial or ethnic minority status and poverty place students at heightened risk of poor educational outcomes at a time when these students are increasing in number.9
Disparities in test scores between students of different races and different socioeconomic classes are only one indication that all students are not receiving the same opportunities to learn and achieve.10 Another indication of lack of educational opportunity is the inequality in per-pupil spending across the country, skewed across race and class lines.11 Spending is particularly important because inequality of educational resources has been linked to inequality of educational achievement.12 Despite the Supreme Court’s promise in Brown that once a state has undertaken to provide its children with an education, [*PG669]it must do so on equal terms, significant inequalities persist between high-poverty and low-poverty schools.13 Differences in indicators of educational opportunity such as test scores, graduation rates, physical facilities, curricular and extra-curricular offerings, access to qualified teachers, and funding exemplify these inequalities.14
Advocates for educational equity have appealed to the courts, where they have achieved limited success.15 They have also turned to Congress, which responded by enacting Title I of the Elementary and Secondary Education Act (the “ESEA”) in 1965.16 The most recent enactment of the ESEA is the No Child Left Behind Act of 2001 (“NCLB” or “the Act”).17 NCLB proposes that setting standards and monitoring students, schools, and states in the achievement of these standards will improve the quality of education for all students.18
Part I of this Note discusses several legal theories that plaintiffs have advanced in order to press courts to mandate a certain quality of education.19 Part II introduces NCLB, including its legislative history, and focuses on several provisions of the Act that provide benefits for students and their parents.20 Part III outlines several theories for private enforcement that plaintiffs have used successfully to secure benefits conferred by other public programs.21 Part IV explores the potential of NCLB for improving education.22 It applies the legal theories discussed in Part III to the context of NCLB and concludes that third-party beneficiary theory is most likely to succeed in enforcing the statute.23
Faced with the contradiction between the U.S. Supreme Court’s pronouncement that education must be available to all students on equal terms and the reality that many urban students face, advocates for educational equity have turned to the court system for assistance.24 The pursuit of quality education for all students has taken the form of lawsuits premised on several different theories, including constitutional law and educational malpractice.25 Constitutional law claims have succeeded to some degree, but educational malpractice plaintiffs have not been successful in the public school context.26
Since the 1970s, many lawsuits for educational equity have focused on funding disparities among school districts as indicative of lack of equal educational opportunity.27 Animating these lawsuits is the theory that without sufficient funding, high-poverty schools cannot educate students adequately.28 Early lawsuits for educational equity succeeded in challenging the constitutionality of state education-financing systems, in state courts, under the Federal Equal Protection [*PG671]Clause of the Fourteenth Amendment.29 In 1973, however, in San Antonio Independent School District v. Rodriguez, the U.S. Supreme Court declined to find a federal constitutional right to education protected under the Equal Protection Clause.30 In Rodriguez, parents of children attending schools in an urban district brought a class action lawsuit on behalf of minority and poor students residing in school districts with low property tax bases.31 The Court applied rational basis scrutiny in upholding the Texas system of financing education, finding that no fundamental right existed to justify application of strict scrutiny.32
No claimant since Rodriguez has asserted a federal constitutional right to education successfully.33 As a result, plaintiffs have challenged school financing under education and equal protection clauses of state constitutions.34 Despite several court decisions in plaintiffs’ favor, in most states a district’s property wealth continues to be linked to per-student spending.35 Districts with little property wealth have lower tax bases, and therefore, less money to spend on schools.36 This inequality of educational resources corresponds to inequality of educational achievement.37 Given current gaps in performance on many measures of adequacy, it is clear that even successful lawsuits premised on state constitutional guarantees have not resulted in equitable education.38
In addition to constitutional claims, plaintiffs have alleged educational malpractice.39 Generally, professional malpractice has been defined as failure to exercise the skills required for one’s job.40 A successful malpractice suit requires plaintiffs to show that the defendants owed them a duty of care, that the defendants breached this duty of care, and that they suffered injury from this breach of duty.41 For the most part, educational malpractice plaintiffs have not succeeded in recovering under this theory.42
The failure of educational malpractice as a tort is due largely to the absence of agreement on whether educators owe students a duty of care, and if so, how to measure whether educators have met this duty.43 This concern arose in the first adjudication of an educational malpractice case.44 In 1976, in Peter W. v. San Francisco Unified School District, the California Court of Appeals held that a public school student may not sue school administrators for providing an inadequate education.45 The plaintiff, who graduated from high school unable to read above the fifth-grade level, asserted that he had not been educated adequately because of the negligence of the defendant school district, its agents, and employees.46 The court denied recovery based on the plaintiff’s inability to demonstrate that defendants owed him a duty of care.47 The court also noted that because of conflicting theories of pedagogy, the absence of acceptable standards of care, and the potential for burdensome litigation, it would abstain from imposing liability on public policy grounds.48 The court’s holding in Peter W., that educators owe no duty of care to students, as well as its decision [*PG673]to abstain from imposing liability for public policy reasons, has been widely followed to deny recovery for educational malpractice.49
Because lawsuits have failed to realize equal educational opportunity for all students, advocates have explored other avenues to achieve this goal.50 In particular, advocates have turned to the federal legislative process to achieve educational equity.51
From this day forward, all students will have a better chance to learn, to excel, and to live out their dreams.52
Despite efforts to achieve equity in education through lawsuits alleging constitutional violations and educational malpractice, schools have failed to improve.53 Poor minority students in large urban districts continue to bear the brunt of this failure.54 At the same time that advocates were appealing to the courts to improve education, they were pushing the federal government to enact legislation to accomplish this goal.55 The No Child Left Behind Act of 2001 (“NCLB” or “the Act”) is the most recent federal legislative effort to improve educational equity.56
Title I of the Elementary and Secondary Education Act (the “ESEA”) was adopted in 1965 to aid disadvantaged students.57 Title I provided federal funds as supplementary aid tied directly to eligible students, who were selected based on test scores.58 In its first thirty years, Title I aimed to bring economically disadvantaged children up to basic levels of achievement and did not achieve even that modest objective.59 In 1994, Congress revised the ESEA by passing the Improving America’s Schools Act of 1994.60 Improving America’s Schools revised the ESEA’s focus on the attainment of basic skills for poor children and imposed a requirement of high standards for all students.61 By 2001, however, the academic gap between rich and poor, white and non-white students, not only existed, but was growing wider.62
When President George W. Bush signed NCLB on January 8, 2002, he touted it as the beginning of a new era.63 NCLB aims to ensure excellence and equity in educational achievement for all students by narrowing the achievement gap between disadvantaged students and their affluent peers.64 Its main provisions seek to increase flexibility for states and school districts, fund research-based programs and practices, empower parents, and increase accountability for student performance by rewarding and sanctioning districts and schools based on students’ academic achievement.65
[*PG675] NCLB emphasizes stronger accountability.66 The Act requires, for example, that each state develop a single statewide system of challenging academic content and achievement standards that is consistent with professionally recognized standards.67 Each state’s educational agency must then implement annual testing designed to measure all students’ achievement of the standards.68 The tests must be aligned with the state’s standards and may be used only for purposes for which they are valid and reliable.69 States must then report test results annually to the public, disaggregated within every state, district, and school by gender, race, ethnicity, English proficiency, and migrant status, to enable comparisons among these groups.70 The Act requires that by the end of the 2013–2014 school year, all students in each group meet proficiency on academic achievement, as defined by the state and determined by performance on the state assessment.71 To meet this goal, school-wide programs must include activities to assist students who are experiencing difficulty mastering the proficient or advanced levels of academic achievement standards.72
In order to hold schools accountable, NCLB provides that students will not be trapped in schools that fail to make progress toward the goal of proficiency for all students.73 States are required to establish statewide proficiency and progress objectives that will enable all students to reach proficiency by the target date of 2014.74 States must sanction schools that fail to meet targets by imposing increasing de[*PG676]grees of corrective action.75 After a school has failed to make adequate yearly progress (“AYP”) for two consecutive years, parents have the unqualified right to transfer their children to another district school that is not in need of improvement.76 If the district does not have an acceptable school, parents have a qualified right to transfer children to schools run by other local educational agencies in the area.77 Parents must be informed of this right no later than the first day of the school year following such identification, and priority is given to the lowest-achieving students from low-income families.78 If the school fails to make AYP the following year, parents must again be notified, and they may continue to transfer their children as above, or they may, instead, receive supplemental services free of charge.79 Taken together, these provisions give students the right to attend a school that is making AYP.80
Students and parents receive additional rights under NCLB.81 Students who attend a “persistently dangerous” school or become victims of violent crime on school grounds are permitted to transfer to a safe school within the school district.82 Under NCLB, parents also have the right to be involved meaningfully in planning and implementing all programs assisted by NCLB.83 The Act contains additional notice provisions to keep parents apprised of how well their children’s schools are meeting the requirements imposed by NCLB.84 States must also make [*PG677]available to the public, through annual report cards, information on their progress toward NCLB objectives.85
The legislative history of NCLB, as well as the publicity that surrounded its passage, emphasizes a new federal role in education, one which places children at the center.86 Its purpose is to ensure educational opportunity for all children.87 Donald Payne, who worked on NCLB as a member of the House Committee on Education and the Workforce in the 107th Congress, wrote an article about the process.88 Payne describes the Act as targeting federal funds to needy communities and empowering parents by requiring that they be informed about school quality and be involved with school plans.89
The White House and members of Congress assert that NCLB contains several important provisions for the improvement of education.90 It increases the amount of resources available and targets disadvantaged areas.91 NCLB makes schools accountable by establishing [*PG678]timelines for achievement of objectives and consequences for failure to meet these objectives.92 Schools and school districts also become more accountable because of NCLB’s requirements of parent notification and publication of annual report cards demonstrating progress, or lack thereof.93 NCLB offers parents educational options, freeing their children from persistently failing schools.94 NCLB helps to focus attention on the achievement gap between disadvantaged groups and their more advantaged peers by requiring collection of disaggregated data and reporting that enables comparisons.95 It enhances local control over education by giving states the flexibility to transfer up to fifty percent of federal Title I funding within Title I programs, as well as the ability to design their own standards and systems of assessment.96 Finally, it represents a significant commitment of federal dollars to education.97
[*PG679] Not everyone, however, believes that NCLB represents a positive step toward educational equity.98 The Act has garnered much criticism, particularly for its overemphasis on testing.99 Numerous educators and politicians have attacked NCLB’s focus on testing as the primary assessment of schools’ progress, asserting that testing does not tell the whole story, that it prompts teachers to “teach to the test,” thereby giving other aspects of the curriculum short shrift, and that it leads to the loss of time that could be spent on other educational activities.100 Opponents contend that NCLB is structured to provide incentives for states to create lower standards and easier tests so that it is easier to show progress.101 Furthermore, they suggest it provides incentives for schools to allow underperforming students to drop out of school, rather than expend resources attempting to educate them.102
Finally, the major criticism leveled at NCLB is that it is an unfunded mandate.103 It requires that states participate in annual testing [*PG680]using the federally designed National Assessment of Educational Progress, as well as design their own standards and testing systems, without appropriating sufficient money for these tasks.104 Although President Bush cites increased spending on education, critics assert that the money promised has never been delivered.105 Members of the 107th Congress expressed their concern regularly over passing NCLB, then underfunding it.106 Concern has continued into the 108th Congress, where bills have been introduced to forestall requirements that schools and states comply with NCLB until it is fully funded.107
Despite NCLB’s alleged shortcomings and one commentator’s claim that the Act is unconstitutional, it appears that NCLB is here to stay.108 In 2003, in Kegerreis v. United States, the Federal District Court for the District of Kansas declined to hold NCLB unconstitutional.109 The court dismissed the lawsuit, finding that sovereign immunity prevented the plaintiff, a public school teacher, from suing the United States.110 The court declined to substitute the Secretary of the Department of Education as the defendant, finding that the plaintiff had not articulated how NCLB violated his constitutional rights.111
[*PG681] Assuming NCLB is constitutional, it may mirror the ESEA in failing to attain its intended beneficial effects because it provides for relatively weak federal oversight.112 It remains to be seen how firm the federal government will be in requiring states and school districts to adhere to NCLB.113 For this reason, the students and parents for whom NCLB provides benefits may need to explore options for private enforcement of the Act.114
In light of the failures of lawsuits premised on constitutional violations and educational malpractice to achieve educational equity, plaintiffs and their advocates may consider using legislation, such as NCLB, to achieve this end.115 NCLB aims to improve educational opportunity [*PG682]by emphasizing accountability.116 Thus far, however, the federal government has not enforced NCLB against states and schools that have failed to meet its mandates.117 If the government continues to give money to states and schools under NCLB without holding them accountable for complying with the Act’s provisions, the government may fail to accomplish NCLB’s stated objectives.118 Rather than rely on federal enforcement of NCLB to accomplish these objectives, educational equity plaintiffs may consider private enforcement, looking to legal theories that have been successful in enforcing other public programs.119
In the United States, federal grant-in-aid programs grew significantly in the 1960s and 1970s, resulting in an increasing number of beneficiaries who received funds through several different state agencies.120 The federal agencies that provide grants under federal grant-in-aid programs are usually responsible for ensuring a state’s compliance with conditions attached to these grants.121 In fact, where the federal government provides financial aid, it may enforce attached conditions in several ways, such as denying funds in the future, demanding restitution of sums already paid, or obtaining a judicial mandate that the recipient comply with conditions it has accepted.122 Nevertheless, federal agencies’ emphases on the preservation of good relationships with state administrators and the maintenance of popular programs often outweigh their concern for individual beneficiaries.123 Because of these concerns, agencies often do not impose sanctions for failure to meet conditions.124
For the benefits secured under grant-in-aid programs to be meaningful, they must be enforceable.125 Litigants have advanced sev[*PG683]eral theories to accomplish this end, including implied private right of action, the application of � 1983, and third-party beneficiary theory.126 Because the courts have limited recovery significantly under implied private right of action and � 1983 theories over the past few years, interest has grown in the enforcement of rights through contract analysis.127
Prior to 1964, the U.S. Supreme Court generally refused to enforce a federal statute through a lawsuit if the statute did not authorize private enforcement expressly.128 In 1964, in J.I. Case Co. v. Borak, the Court held that private parties had a cause of action under the Securities Exchange Act for rescission or damages.129 In Borak, a stockholder of J.I. Case Company alleged that a merger effected through the circulation of a misleading proxy statement violated the Securities Exchange Act.130 Because the statute did not authorize private lawsuits explicitly, the Court’s holding recognized an implied cause of action.131 Between 1964 and 1975, the Court recognized implied private rights of action [*PG684]under a number of statutes, enabling private parties to bring lawsuits to enforce them.132
In 1975, in Cort v. Ash, the U.S. Supreme Court held that there is no private right of action under 18 U.S.C. � 610, and in doing so, refined implied right of action jurisprudence.133 The plaintiff, a corporate stockholder, brought an action for damages against corporate directors under this criminal statute.134 In its opinion, the Court outlined a four-part test for determining whether a private remedy is implicit in a statute: (1) Is the plaintiff part of a class to which the statute intends to provide special status or benefits?; (2) Is there implicit or explicit evidence that Congress intended to create or deny the proposed right of action?; (3) Is allowing a private right of action as an implied remedy for the plaintiff consistent with the underlying purpose of the legislative scheme?; (4) Is the cause of action one traditionally relegated to state law and, thus, in an area where a federal action would intrude on important state concerns?135 Since 1975, courts have followed this test to decide whether a statute creates an implied private right of action.136
In applying the Cort test, courts have focused on its second prong—whether significant evidence demonstrates congressional intent to create a private right of action.137 To prevail under this test, even where a statute creates rights, a plaintiff must also demonstrate intent to create a private remedy.138 Recently, the Court further narrowed implied private rights of action.139 In 2001, in Alexander v. Sandoval, the Court held that there is no private right of action to enforce [*PG685]disparate-impact regulations promulgated under Title VI.140 The plaintiff challenged, under � 602 of Title VI, the Alabama Department of Public Safety’s policy of administering driver’s license exams only in English.141 The Court found for the defendant, ruling that the plaintiff had not established congressional intent to create a private right of action.142 In Alexander, the Court narrowed its implied private right of action jurisprudence by limiting its search for Congress’s intent to the text and structure of the statute.143 After Alexander, to enforce a federal statute under an implied private right of action theory, a court would have to find from its text and structure that Congress intended to create both a private right and a private remedy.144 Because of this narrowing construction of implied private rights of action, plaintiffs seeking to enforce statutory rights have increasingly brought actions under � 1983.145
Congress enacted the predecessor of � 1983 in 1871 to protect the civil rights of African-Americans in the South.146 Section 1983 permits U.S. citizens to bring suit against state action that deprives them of “rights, privileges, or immunities secured by the Constitution and laws . . . .”147 For over one hundred years, the Court permitted only plaintiffs alleging violations of their constitutional rights to bring � 1983 lawsuits.148 In 1980, however, in Maine v. Thiboutot, the U.S. Supreme Court held that plaintiffs deprived of welfare benefits to which they were entitled under the federal Social Security Act could recover under � 1983.149 In Thiboutot, a family with eight children brought a class action lawsuit challenging Maine’s interpretation of the Social Security Act, which decreased their Aid to Families with Dependent Children benefits.150 In allowing recovery, the Court held that the � 1983 remedy [*PG686]applied to violations of federal statutes as well as constitutional law.151 After Thiboutot, courts allowed private individuals who were beneficiaries of federal statutory rights to bring suit under � 1983.152
In 1981, in Pennhurst State School & Hospital v. Halderman, the U.S. Supreme Court found no enforceable private cause of action under � 6010 of the Developmentally Disabled Assistance and Bill of Rights Act.153 In Pennhurst, a resident of a hospital for the care and treatment of the mentally retarded brought a class action lawsuit claiming that her conditions of confinement violated the Developmentally Disabled Assistance and Bill of Rights Act.154 The Court ruled that this Act did not create individually enforceable rights.155 The Court’s holding limited the ability of beneficiaries of federal grant-in-aid programs to bring a private cause of action against states that allegedly had violated conditions in their grants.156 In this case, then-Justice William Rehnquist characterized legislation enacted pursuant to the spending power as similar to a contract.157 In return for a promise to comply with specified conditions, states receive federal funds.158 Like enforcement of a contract, which requires that the parties have accepted its terms voluntarily and knowingly, enforcement of conditions against a state requires that the state has accepted the conditions voluntarily and knowingly.159 Justice Rehnquist’s opinion, in remanding the case to the Third Circuit for consideration of � 1983, imposed a second requirement that would have to be met before a beneficiary could use � 1983 to enforce conditions in a grant-in-aid statute against a state.160 Congress must “speak with a clear voice” and manifest an unambiguous intent to create individually enforceable rights.161
In a line of cases from Pennhurst in 1981 to its 2002 decision in Gonzaga University v. Doe, the U.S. Supreme Court clarified, and further narrowed, its approach to determining which types of rights are enforceable under � 1983.162 In 2002, in Gonzaga, the Court resolved a [*PG687]circuit split in holding that the Family Education Rights and Privacy Act (“FERPA”) does not establish individual rights enforceable under � 1983.163 Writing for the Court, Chief Justice Rehnquist noted that a cause of action under � 1983 requires an unambiguously conferred statutory right, not a vague benefit or interest.164 He emphasized that previously, the Court had disallowed attempts to infer enforceable rights from Spending Clause statutes.165 He maintained that the issue of congressional intent controls in both implied right of action and � 1983 cases.166 Having established a restrictive test for enforceability of federal statutes through � 1983, the Gonzaga Court found that FERPA does not establish individual rights.167 The Court’s focus on the absence of rights-creating language, and the requirement, stated isn Alexander, that there be evidence in the statute of congressional intent to create both a private right and a private remedy, resulted in the conflation of tests for enforceability under implied private right of action and � 1983.168
Plaintiffs recently tried to enforce NCLB under � 1983.169 In June of 2003, in Association of Community Organizations for Reform Now v. New York City Department of Education, the Federal District Court for the Southern District of New York ruled that, by the standards articulated in Gonzaga, plaintiffs cannot use � 1983 to enforce NCLB.170 In Reform Now, community organizations and parents brought a class action lawsuit charging that two local school districts and their superintendents had violated NCLB’s notice, transfer, and supplemental services provisions.171 The court in Reform Now stated that in Gonzaga, the U.S. Supreme Court determined that 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 under [*PG688]� 1983.172 Finding no explicit rights-creating language and no clear and unambiguous congressional intent in NCLB to create individually enforceable rights with respect to the notice, transfer, or supplemental educational service provisions of the Act, the court granted the defendants’ motion to dismiss.173 In light of this decision, plaintiffs seeking to enforce the provisions of NCLB may have to explore other legal theories.174
The Court’s characterization in 1981 in Pennhurst of legislation enacted pursuant to Congress’s spending power as similar to a contract has important ramifications for beneficiaries who attempt to enforce the conditions of these statutes.175 The Court in Pennhurst stated that Congress may establish conditions when it disburses federal money to the states.176 As long as these conditions are clear so that states know the consequences of their commitment, they may be bound by their voluntary assent to comply with these terms, rather than forgo the benefits of federal funding.177 The legitimacy of Congress’s spending power legislation, which imposes conditions on grants of federal money, thus depends on whether the state assents voluntarily and knowingly to the terms of the “contract.”178 Applying its reasoning to the facts of the case, the Court held that the Disabled Assistance and Bill of Rights Act does not impose such a binding obligation on the states.179 The Court found that the plain language of the statute emphasized a purpose to assist the states rather than to create new substantive rights.180 It also found that because Congress did not appear to grant sufficient money to defray the costs of the obligations imposed by the statute, it must have had a limited purpose in enacting it.181
[*PG689] In addition to establishing that the parties have entered into a contract voluntarily and knowingly, plaintiffs must establish that they have standing to enforce its terms.182 Traditionally, only the parties to a contract had the right to enforce it, but contract law has evolved to provide a cause of action for third-party beneficiaries.183 Because they are not parties to the agreement, those benefited by conditions on federal funding agreements must establish that they are third-party beneficiaries in order to enforce the conditions.184 Under the Restatement (Second) of Contracts, to establish standing as a third-party beneficiary, a party must be an intended beneficiary.185 The Second Restatement’s formulation provides that a party is an intended beneficiary, and thus has rights under a contract, if
(1) Unless otherwise agreed between promisor and promisee . . . recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either
(a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or
(b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.186
This formulation has had far-reaching consequences for the development of the third-party beneficiary rule because it has accommodated beneficiaries of federal funding contracts.187 Beginning with the Civil Rights Act of 1964, the recipient’s compliance with a federal statute has often been a condition for federal funding of public pro[*PG690]grams.188 Because each statute defines the class that the program intends to benefit, where federal funding calls for compliance with a statute, the class of intended beneficiaries appears to be the same as the intended beneficiaries of the contract.189 This is so whether or not they have a right to enforce the statute directly.190
The Second Restatement contains a rule dealing with third-party beneficiary claims based on government contracts.191 According to subsection 313(1), the third-party beneficiary rule applies to contracts with the government or government agencies, except where applying the rule to such contracts is inconsistent with the policy of the law creating the contract.192 The comment to section 313 suggests that this formulation “leaves room for the weighing of considerations peculiar to particular situations.”193 Subsection 313(2) provides that a promisor who contracts with the government to render a public service is protected from contractual liability to the general public for consequential damages unless the terms of the promise provide for such liability or a direct action is consistent with the terms of the contract and the policy behind it.194 Illustrations of contracts between promisors and the government include contracts to carry mail and to maintain a certain water pressure at hydrants on city streets.195 Despite the existence of section 313 governing contracts with a government or governmental agency, many courts allowing recovery by third-party beneficiaries of public programs have not discussed it.196 This may be because the comments and examples accompanying the text of section 313, as well as the policy behind it, appear to deal with commer[*PG691]cial contracts with the government.197 Benefits conferred on third parties by statutory schemes, in contrast, are outside of the commercial realm.198
Third-party beneficiary claims have succeeded in the courts to enforce conditions of federal funding statutes.199 In 1967, in Bossier Parish School Board v. Lemon, the Fifth Circuit Court of Appeals invoked third-party beneficiary theory to hold a school board accountable for a promise it had made in exchange for federal funding.200 The court held that where a school board had made assurances under the Civil Rights Act of 1964 that it would admit both African-American and white children on equal terms to schools for children of military base personnel, these assurances constituted a contractual agreement.201 By agreeing to abide by the terms of the Civil Rights Act, the defendants had assured these children rights as third-party beneficiaries.202 By accepting the contract and the federal funds it brought, the school board was thus estopped from denying the plaintiffs, African-American children, attendance at these schools.203
In 1977, in Fuzie v. Manor Care, Inc., the Federal District Court for the Northern District of Ohio denied the defendant’s motion to dismiss the plaintiff’s third-party beneficiary claim under the Medicaid Act.204 The plaintiff, a Medicaid recipient living at a private nursing home operated by the defendant, brought suit to enforce the provisions of Medicaid regulations.205 Although she could invoke neither an implied private right of action nor � 1983 to enforce her rights, as a Medicaid recipient, she was nevertheless a third-party beneficiary of the statute.206
[*PG692] In the past, when plaintiffs brought lawsuits alleging both implied private rights of action and third-party beneficiary contract claims, courts did not often reach the latter because they allowed recovery under the former.207 In evaluating claims under implied private right and � 1983 causes of action, the U.S. Supreme Court has indicated frequently that plaintiffs are intended beneficiaries of statutory schemes.208 In 1990, in Wilder v. Virginia Hospital Ass’n, the Court determined that plaintiff hospitals had a private right of action to enforce benefits conferred by the Medicaid program.209 In its holding, the Court noted that healthcare providers are undoubtedly intended beneficiaries of the Boren Amendment because it is phrased in terms of benefiting them.210
In 1997, in Blessing v. Freestone, the Court determined that custodial mothers do not have an enforceable right under � 1983 to have the state’s program achieve “substantial compliance” with the requirements of Title IV-D of the Social Security Act.211 In its decision, the Court left open the possibility that some provisions of Title IV-D might give rise to individual rights.212 It found only that the plaintiffs had not articulated—and lower courts had not evaluated—a well-defined right.213 Although the Court did not address explicitly a third-party beneficiary contract claim in Wilder or in Blessing, its language may provide guidance for plaintiffs seeking to bring such claims as beneficiaries of public programs.214
This Part of the Note explores the various ways in which NCLB holds promise for advocates of educational equity.215 First, section IV.A discusses the use of NCLB to strengthen existing constitutional and common-law causes of action.216 Second, section IV.B analyzes the viability of various tools for enforcement of NCLB.217 Subsections IV.B.1 and IV.B.2 suggest that it is unlikely that a court will allow beneficiaries of NCLB to enforce the Act under an implied private right of action or a � 1983 theory.218 Finally, subsection IV.B.3 argues that third-party beneficiary theory is the most promising tool for enforcement of NCLB and lays out the framework required to bring such a claim.219
Plaintiffs may be able to use NCLB to fill in the gaps that have prevented their constitutional and common-law claims from succeeding thus far.220 For example, the NCLB requirement that all students in all schools meet proficiency on state assessments by 2014 may strengthen constitutional claims premised on state guarantees of adequate education.221 States must determine whether schools are making adequate yearly progress (“AYP”) toward this goal, and identify schools failing to do so.222 Such identification strengthens claims by students attending these schools that they are being deprived of an adequate education.223 Educational malpractice plaintiffs may be able to overcome courts’ resistance to find a duty of care owed to students by focusing on the requirements NCLB imposes on districts and states.224 Courts could rely on the standards established by NCLB, as well as the statute’s focus on [*PG694]accountability, to overcome public policy objections to imposing liability on schools that fail to improve.225
NCLB contains several important provisions to improve educational opportunity for at-risk students.226 The Act reflects the Bush Administration’s attempt to hold all school districts and states to high standards.227 The federal government, however, has not enforced NCLB adequately in the two years since its enactment.228 Schools that have not met NCLB targets, such as AYP, are not providing the services, such as transfer options and supplemental services, that the Act mandates.229 States have failed to meet U.S. Department of Education deadlines for submitting lists of underperforming schools.230 Because the federal government has not yet penalized a state for failing to meet NCLB requirements, advocates for educational equity must prepare for the eventuality that the government will continue not to enforce the Act.231 To ensure that its intended beneficiaries actually benefit from NCLB, it is important to explore the merits of pursuing private enforcement under each of the theories discussed above as an alternative to federal enforcement.232
Under Cort v. Ash and its progeny, the U.S. Supreme Court looks for significant evidence that Congress intended to create a private right of action to determine whether a private remedy is implicit in a stat[*PG695]ute.233 In 2001, in Alexander v. Sandoval, the Court limited its search for Congress’s intent to the text and structure of the statute.234 To enforce NCLB under an implied private right of action theory, therefore, a court would have to find from a statute’s text and structure that Congress intended to create both a private right and a private remedy.235
NCLB provides options for parents of children attending persistently failing schools.236 They may, for example, transfer their children out of these schools or opt for free supplemental services.237 These and other provisions may be seen as creating rights or benefits, but it is unlikely that a court would find that the text and structure of NCLB demonstrate a congressional intent to create a private remedy.238 In Alexander, the Court stated that Congress has not demonstrated an intent to create a private remedy where a statute’s language is directed to the federal agencies distributing federal funds, and the statute empowers agencies to enforce their regulations by terminating funding.239 Under this test, NCLB fails to demonstrate a congressional intent to create a private remedy.240 In the wake of Alexander, advocates for educational equity would not be able to enforce the benefits conferred by NCLB under an implied right of action theory.241
Between 1980 and 2002, a number of plaintiffs used � 1983 successfully to enforce benefits conferred by statutes.242 The U.S. Supreme [*PG696]Court’s 2002 decision in Gonzaga University v. Doe, however, made recovery under � 1983 more difficult.243 The Court in Gonzaga focused on rights-creating language and required that there be evidence in the statute of congressional intent to create both a private right and a private remedy.244 In doing so, the Gonzaga decision conflated the tests for enforceability under implied right of action and � 1983.245
It is unlikely that a � 1983 action to enforce NCLB would succeed under the Court’s current analytical framework, as refined in Gonzaga.246 One court has already ruled that NCLB is not enforceable under � 1983.247 In 2003, in Association of Community Organizations for Reform Now v. New York City Department of Education, the Federal District Court for the Southern District of New York granted the defendants’ motion to dismiss the plaintiffs’ � 1983 claim.248 Utilizing the Gonzaga standard, the court found that NCLB contains no explicit rights-creating language and no clear and unambiguous congressional intent to create individually enforceable rights.249 Reform Now addressed the notice, transfer, and supplemental educational service provisions of NCLB.250 The court did not discuss NCLB’s legislative history, but instead based its decision on the text and structure of the Act.251 This [*PG697]approach is consistent with the U.S. Supreme Court’s holding in Alexander that a court must limit its search for congressional intent to the text and structure of a statute.252 Therefore, it is unlikely that future plaintiffs would be able to rely on the legislative history of NCLB for evidence of clear and unambiguous congressional intent to create individually enforceable rights.253
Like Alexander, Gonzaga harms the intended beneficiaries of federal grant-in-aid programs.254 By demanding proof of Congress’s intent to provide both a right and a remedy to individuals, and by focusing narrowly on the text and structure of the statute as evidence of intent, the U.S. Supreme Court has made it difficult to succeed in an implied private cause of action.255 Gonzaga’s requirement that plaintiffs demonstrate congressional intent to create both a right and a remedy similarly limits the potential for success of intended beneficiaries of statutes suing under � 1983.256 NCLB plaintiffs will have to look to other legal theories to ensure that they receive the benefits conferred by the statute.257
The most promising theory of enforcement for NCLB is third-party beneficiary theory.258 To recover under this theory, a plaintiff must demonstrate that a contract exists between the parties and that the promisee intended that the contract benefit the plaintiff.259 Where, as here, one party to the contract is a government, the plaintiff also must establish that allowing recovery would not contravene the policy of the law authorizing the contract.260
To argue that this theory applies to a statute that Congress passed under its spending power, plaintiffs should emphasize the words of the U.S. Supreme Court in the 1981 case, Pennhurst State School & Hospital v. Halderman.261 In Pennhurst, then-Justice Rehnquist stated that legislation enacted pursuant to Congress’s spending power is similar to a contract.262 Like the terms of a contract, conditions imposed by acceptance of federal funding will only bind a state if it accepts them voluntarily and knowingly.263 In Pennhurst, the Court held that the terms of the Disabled Assistance and Bill of Rights Act do not meet this test.264 The statute’s plain language emphasizes a purpose to assist the states, rather than the disabled, and Congress did not appear to grant sufficient money to defray the costs of imposing a significant obligation on the states.265 The terms of the statute could not bind the states because the states were unaware of the scope of their obligations.266
The plain language of NCLB, unlike that of the statute in Pennhurst, states a purpose to provide benefits in that it aims to ensure educational opportunity for all children.267 The terms of NCLB specify, in detail, the obligations that states must assume in exchange for federal funding.268 Although some opponents of NCLB argue that Congress has not funded the statute at levels to enable the states to meet all of the obligations imposed by the statute, others, including the President, have proclaimed publicly that sufficient federal dollars are attached to NCLB’s mandates.269 Furthermore, when Congress passed NCLB and states agreed to its conditions in exchange for federal funding, they [*PG699]were well aware of the obligations the Act imposes.270 For example, provisions of the Act such as the requirement that schools make adequate yearly progress, and the obligation to provide parents of students at schools that have failed to do so with notice and the option to transfer or to receive supplemental services, are stated in clear language.271 These provisions do not pose an indeterminate obligation on a school that fails to make adequate yearly progress nor a state, which must ensure that the school complies.272 NCLB appears to meet the guidelines imposed by the Pennhurst Court.273 The Court in Pennhurst, however, did not address a third-party beneficiary claim directly.274
In addition to meeting the Pennhurst guidelines, to enforce a federal funding agreement under a third-party beneficiary theory, plaintiffs must establish standing as third-party beneficiaries.275 Under the Second Restatement, in order to establish standing, third-party beneficiaries must be intended beneficiaries, that is, the funding program must be intended to benefit them.276 Plaintiffs seeking to recover as third-party beneficiaries of a contract with the government must also demonstrate that application of the third-party beneficiary rule does not contravene the policy of the law authorizing the contract, as provided by section 313 of the Second Restatement of Contracts.277 It has been suggested that section 313 applies only to commercial claims because it specifically mentions consequential damages, rather than injunctions, and because its illustrations all refer to commercial contracts.278 Beneficiaries of commercial contracts frequently seek to recover dam[*PG700]ages based on harm caused by their reliance on a promise.279 The remedy sought in cases involving beneficiaries of public programs, in comparison, seeks to achieve the objective of the statute through an injunction, frequently resembling specific performance.280 In contrast to potential claims by members of the general public in the commercial context, statutes define an identifiable group for whose benefit the federal government has imposed an obligation on the defendant.281
Because it does not contravene the policy behind a statute conferring benefits upon a particular group to permit members of that group to seek enforcement of the statute, section 313 does not preclude application of the third-party beneficiary rule to public programs established by a contract with the government.282 Furthermore, this use of the third-party beneficiary rule is consonant with broad, equitable principles allowing recovery by individuals who were not parties to the contract, but for whose benefit the contract was enacted.283 Where defendants receive federal funds intended to be used for plaintiffs’ benefit but fail to provide the intended benefits, the third- party beneficiary rule should be invoked to prohibit unjust enrichment.284 Unlike implied private right of action theory, which limits consideration of intent to benefit to the text and structure of a statute, third-party beneficiary theory is consistent with a broader reading of statutory intent.285 From its origins, as demonstrated by its focus on the party intended to benefit from a contract, this theory is premised on equitable principles and aims to prohibit unjust enrichment.286 Consistent with this purpose, a court would be able to look to a statute’s legislative history to determine congressional intent.287
The legislative history of NCLB reveals that its purpose is to improve educational opportunity for all children.288 NCLB aims to target funds to needy communities.289 It aims to inform parents about the quality of their local schools as well as about their options to transfer their children out of failing schools or to receive supplemental services.290 NCLB requires that parents be involved in a meaningful way in planning and implementing all programs assisted by the Act.291 Under NCLB, schools must identify and assist struggling students.292 The text and legislative history of the statute reveal that NCLB confers these benefits—and others—upon students and their parents, consistent with the broader purpose of the statute to improve educational opportunity for the neediest students.293
Although the Federal District Court for the Southern District of New York in Reform Now found that the text and structure of NCLB did not evince congressional intent to create individually enforceable rights, a court evaluating a third-party beneficiary claim would not be limited, as was the Reform Now court, by the U.S. Supreme Court’s � 1983 jurisprudence.294 Third-party beneficiary theory aims to effectuate the intentions of the parties.295 Inquiry into parties’ intentions is not limited to the text and structure of the agreement, but rather focuses on what the circumstances indicate about the promisee’s intentions.296 The legislative history of NCLB would assist a court in determining that the federal government intended that the neediest students benefit from NCLB.297
[*PG702] Once a court establishes that the parties to the agreement intended to give a particular class of people the benefit of the agreement, the inquiry need go no further.298 It would be easier for the beneficiaries of NCLB—disadvantaged children and their parents—to recover under this theory than under implied private right of action or � 1983.299 Not much case law exists to guide plaintiffs or courts, as third-party beneficiary theory remains largely untested as a theory of recovery for the beneficiaries of statutory schemes.300 This is largely because, where plaintiffs have included contract claims, courts often have allowed recovery under implied private rights of action and, hence, have not reached the contract claims.301
Two cases that courts decided before plaintiffs first succeeded in using � 1983 to enforce statutory rights suggest that beneficiaries of conditions on federal funding may use third-party beneficiary theory to ensure that they receive promised benefits.302 In 1967, in Bossier Parish School Board v. Lemon, the Fifth Circuit Court of Appeals held a school board accountable for providing African-American children with the benefits it had assured them by accepting funds under the Civil Rights Act of 1964.303 In 1977, in Fuzie v. Manor Care, Inc., the Federal District Court for the Northern District of Ohio ruled that a plaintiff who could invoke neither implied private right of action nor � 1983 to enforce her rights under the Medicaid Act was nevertheless a third-party beneficiary of the statute.304 Furthermore, even where courts have not addressed third-party beneficiary claims directly, dicta [*PG703]in some cases suggest that courts might consider this theory to vindicate rights that are well defined, such as those in NCLB.305
Plaintiffs seeking to enforce NCLB to receive the benefits that the Act confers upon them can build upon precedent to bring third-party beneficiary claims to court.306 They can rely on earlier cases that address third-party beneficiary claims directly, such as Bossier Parish and Fuzie.307 They can rely also on cases that address elements of third-party beneficiary claims in decisions based on implied private right of action or � 1983.308 Given the broad purpose of third-party beneficiary theory, which is informed by equitable principles and aims to prohibit unjust enrichment, this theory holds promise for plaintiffs seeking to enforce NCLB to promote educational equity.309
Fifty years after Brown v. Board of Education, poor and minority children still are deprived of educational opportunity. Years of both litigation and legislation have not accomplished educational equity. The passage of the No Child Left Behind Act of 2001 holds promise in that it provides important benefits for children. Thus far, however, the federal government has not acted adequately to enforce NCLB. Schools and states that fail to make adequate yearly progress continue to receive money under NCLB, but they fail to meet the obligations to children and parents that the Act imposes. To protect the benefits NCLB confers upon them, it is essential that parents of children attending these failing schools explore their options for private enforcement. Given the U.S. Supreme Court’s decisions within the past three years narrowing implied private right of action and � 1983, neither will be available to plaintiffs pursuing educational adequacy. The most promising theory for enforcement of NCLB is third-party beneficiary theory.
To succeed in enforcing NCLB under a third-party beneficiary theory, plaintiffs should focus on similarities between federal funding agreements and contracts, the text and legislative history of NCLB [*PG704]that demonstrate an intent to benefit children by providing them with opportunities to obtain a high-quality education, and the equitable principles informing third-party beneficiary theory. Advocates for educational equity must prepare to challenge states to provide the quality education for all students that they agreed to when they began accepting NCLB funds two years ago.