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CENTER FOR LAW AND EDUCATION v. U.S. DEPARTMENT OF EDUCATION

March 26, 2004.

CENTER FOR LAW AND EDUCATION, et al., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF EDUCATION, Defendant



The opinion of the court was delivered by: JOHN BATES, District Judge

MEMORANDUM OPINION

Two advocacy groups and a parent of two public school students (collectively, "plaintiffs") challenge the composition of a negotiated rulemaking committee assembled by the Department of Education ("Education") to propose regulations as required by the No Child Left Behind Act, Pub.L. No. 107-110, 115 Stat. 1425 (2002) (codified at 20 U.S.C. § 6301 et seq.) ("NCLBA"). This action is plaintiffs' second attack on Education's selection of committee members. Earlier, plaintiffs sought a temporary restraining order to prevent the negotiated rulemaking committee from convening, and then a preliminary injunction of the rulemaking process until a new committee could be appointed. This Court dismissed that action because it found (1) that plaintiffs' claims were not yet justiciable in the absence of final agency action, see Ctr. for Law & Educ.v. Dep't of Educ., 209 F. Supp.2d 102, 110-11 (D.D.C. 2002) ("Ctr. for Law & Educ. I"), and (2) that the Negotiated Rulemaking Act, 5 U.S.C. § 561 et seq. ("NRA"), as incorporated into Section 1901 of the NCLBA, barred judicial review of Education's committee-member selections, Page 2 at least before the conclusion of the rulemaking process, see id. at 106-10.

  Now that final rules have been promulgated, plaintiffs renew their contention that the negotiated rulemaking committee did not adequately represent parents' and students' interests. Specifically, plaintiffs object to Education's designation of some educators as representatives of parents and students, given NCLBA's command that Education select committee members "in such numbers as will provide an equitable balance between representatives of parents and students and representatives of educators and education officials." NCLBA § 1901(b)(3)(B) (codified at 20 U.S.C. § 6571(b)(3)(B)). The advocacy group plaintiffs maintain that Education's alleged failure to constitute an appropriately balanced committee violates the procedural rights bestowed on them by the NCLBA, hinders their pursuit of a quality education for all students, and requires them to expend substantially more resources to meet their policy goals. See Compl. ¶¶ 14-15. Plaintiff Rachel Lindsey ("Lindsey"), whose children attend a school that receives federal funds under the NCLBA, asserts that Education's selection violated her procedural rights, resulting in the inadequate representation of her and her children's viewpoints. She claims that Education's resulting regulations on standards and assessments directly harm her and her children's interest in a quality education. See id. ¶ 16. In sum, plaintiffs argue that Education's selection of the committee was unlawful under section 1901(b)(3)(B), "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S.C. § 706(2)(A), and that a new committee should be convened because the regulations promulgated pursuant to the committee's recommendations are the result of a procedurally defective process.

  Four motions are presently before the Court: defendant's motion to dismiss or for summary judgment, plaintiffs' FED. R. CIV. P. 56(f) motion to defer consideration of summary Page 3 judgment pending further discovery, plaintiffs' motion to compel production of certain documents listed on defendant's privilege log, and defendant's motion to stay plaintiff's motion to compel discovery pending the adjudication of defendant's motion to dismiss. Because the Court finds that plaintiffs lack standing to pursue their claims under Article III of the Constitution, and that Section 570 of the NRA bars judicial review of Education's selection of committee members, defendant's motion to dismiss shall be granted. The remaining motions shall therefore be denied as moot.*fn1

  BACKGROUND

  The advocacy group plaintiffs, the Center for Law and Education (CLE) and Designs for Change (DFC), are nonprofit organizations that claim to represent the interests of parents and students in educational matters. See Pls.' Rule 56(f) Mot. at 6. Both have long records of promoting parental involvement in education and the overall improvement of the educational system, especially on behalf of low-income students. Neither organization claims to sue on behalf of its members.*fn2 Lindsey's two children are students at John Foster Dulles Elementary School in Page 4 Chicago, Illinois. Dulles Elementary has been identified as a "school in need of improvement" under the NCLBA. Id.

  The NCLBA, which was signed into law in January 2002, provides support for education programs designed to help disadvantaged children meet high academic standards. Section 1901 of the NCLBA empowers the Secretary of Education to issue regulations under Title I of the Elementary and Secondary Act of 1965. Section 1901(b), entitled "Negotiated Rulemaking Process," lays out specific procedures for the Secretary to follow in developing and promulgating the regulations. First, the Secretary must "obtain the advice and recommendations of representatives of Federal, State, and local administrators, parents, teachers, paraprofessionals, members of local school boards and other organizations involved with the implementation and operation of programs under [Title I]." NCLBA § 1901(b)(1). After obtaining this advice, but before publishing proposed regulations, the Secretary is required to:
(A) establish a negotiated rulemaking process on, at a minimum, standards and assessments;
(B) select individuals to participate in such process from among individuals or groups that provided advice and recommendations, including representation from all geographic regions of the United States, in such numbers as will provide an equitable balance between representatives of parents and students and representatives of educators and education officials; and
  (C) prepare a draft of proposed policy options that shall be provided to the individuals selected by the Secretary under subparagraph (B) not less than 15 days before the first meeting under such process. Page 5
 Id. § 1901(b)(3). Section 1901(b)(4) further directs that the negotiated rulemaking process:
(A) shall be conducted in a timely manner to ensure that final regulations are issued by the Secretary not later than 1 year after the date of enactment of the No Child Left Behind Act of 2001; and
(B) shall not be subject to the Federal Advisory Committee Act, but shall otherwise follow the provisions of the Negotiated Rulemaking Act of 1990 (5 U.S.C. § 561 et seq.).
  Ten days after the NCLBA was signed into law, Education published a notice soliciting advice and recommendations from interested parties including "States and local administrators, parents, teachers, paraprofessionals, members of local boards of education . . . civil rights groups, test publishers, and faith-based organizations with educational expertise." Request for Advice and Recommendations on Regulatory Issues, 67 Fed. Reg. 2770 (January 18, 2002). Consistent with Section 1901(b), the notice provided that a negotiated rulemaking committee would be selected from among individuals or groups who had submitted advice and recommendations, and that the committee would, at a minimum, address issues concerning standards and assessment. See 67 Fed. Reg. at 2771. Purportedly to "convene a diverse negotiating group" to represent "a wide range of interests," Education also solicited nominations to the rulemaking committee from over seventy organizations. 67 Fed. Reg. 9223 (February 28, 2002)

  After more than one hundred parties (including the advocacy group plaintiffs) had submitted recommendations, Education published a notice with the names of persons selected to participate in the negotiated rulemaking committee. No representatives of the advocacy group plaintiffs were selected. See 67 Fed. Reg. at 9223-24. In the end, as set forth in the notice, the committee included six representatives of state administrators and state boards of education; four representatives of local administrators and local school boards; three representatives of principals Page 6 and teachers; one representative of business interests; two representatives from Education; and seven individuals "[r]epresenting students (Including At-risk Students, Migrant Students, Limited English-Proficient Students, Students with Disabilities, and Private School Students)." Id. at 9224.*fn3 Of the seven individuals set forth as representatives of students, two were described in the notice simply as "parent[s]," one was identified as a "teacher," and four appeared to be state or local education officials. See id.

  On March 8, 2002, plaintiffs*fn4 sued to enjoin the negotiated rulemaking process until a new committee could be appointed, and to prohibit Education from using any rules proposed by the committee as it was then constituted. The committee was unlawfully composed, argued plaintiffs, in that it failed to achieve an equitable balance between representatives of parents and students on the one hand and representatives of educators on the other. See NCLBA § 1901(b)(3)(B). After denying temporary emergency relief, this Court ultimately dismissed plaintiffs' complaint. Ctr. for Law & Educ. I, 209 F. Supp.2d at 119. The Court concluded that, prior to Education's promulgation of final rules, there was no final agency action subject to judicial review, id. at 110-111, and the NRA barred review of Education's selection of committee members, id. at 106-10.

  Meanwhile, the negotiated rulemaking process continued. On March 11, 2002, at the committee's first meeting, the two advocacy group plaintiffs were among several groups that appeared and petitioned unsuccessfully to be added to the committee. They had the support only Page 7 of the two committee members who had been named solely in their capacity as "parents." See Pls.' Opp'n Ex. 4 (Decl. of Minnie Pearce). That notwithstanding, at least one representative of CLE remained and made brief comments relating to certain sections of the proposed rules, as all members of the public were invited to do. Pls.' Opp'n Ex. 1 (Decl. of Paul Weckstein). The committee went on to reach consensus on proposed rules, which were published for further comment. See 67 Fed. Reg. 30452 (May 6, 2002).*fn5 Again, the advocacy group plaintiffs submitted extensive recommendations and comments. See Pl.'s Opp'n Ex. 1, Attach. B.

  Several of the proposed rules seem to have been of particular concern to the advocacy group plaintiffs. One, Section 200.3(a)(2) of the proposed rules," permits a State to include in its assessment system either or both criterion-referenced assessments or nationally normed assessments." 67 Fed. Reg. 45038, 45045 (Jul. 5, 2002).*fn6 Plaintiffs oppose the use of norm-referenced assessments on the grounds that they "do not directly measure a child's proficiency in a particular subject, [and thus] they do not clearly demonstrate whether a student or school is adequately meeting minimum standards." Pls.' Opp'n at 11, Ex. 1. Declining to alter the rule as it had been proposed, Education responded to plaintiffs' concern: Page 8

 
The Secretary has carefully considered these comments and believes the final regulations contain the proper amount of flexibility for States while requiring any State that uses only a nationally normed assessment at a particular grade to augment that assessment with additional items as necessary to measure the depth and breadth of the State's standards. Moreover, student results from an augmented nationally normed assessment must be expressed in terms of the State's achievement standards, not relative to other students in the nation. The Secretary believes these provisions address the commenters' concerns and will ensure that, before a State includes a nationally normed assessment in its assessment system, the State carefully examines the alignment of the assessment with the State's standards and the extent to which the State must add items to fully address its standards. Moreover, if a State combines criterion-referenced and normed assessments, the State must demonstrate that its system has a rational and coherent design.
67 Fed. Reg at 45045. Plaintiffs also took exception to Section 200.2(b)(7) of the proposed rules, which required that each state's annual assessments "[i]nvolve multiple up-to-date measures of student academic achievement, including measures that assess higher-order thinking skills and understanding of challenging content." 67 Fed. Reg. at 45040. In its comment to the proposed rule, CLE suggested that Education "make it clear that multiple measures means multiple ways of measuring or assessing the same proficiencies, in order to help assure the validity of the determination that students are or are not proficient." Pls.' Opp'n Ex. 1, Attach. B at 6-7 (emphasis original). Education chose not to make the suggested clarification on the ground that "multiple measures" could, consistently with the Act, mean either measures that differed in format or in the type of knowledge they tested. 67 Fed. Reg. at 45045. Additionally, as a more general criticism, CLE objected that the proposed regulations failed adequately to provide for parent and public participation in the development and revision of standards and assessments as required by the NCLBA. See Pls.' Opp'n Ex. 1 at ¶ 54; NCLBA § 1111(a)(1) ("any State desiring to receive a grant under this part . . . shall submit to the Secretary a plan, developed . . . in consultation with local educational agencies, teachers, principals, pupil services personnel, administrators . . . other Page 9 staff, and parents").

  ANALYSIS

  Plaintiffs assert that Education's actions have injured them in two ways. First, they claim that the NCLBA created a statutory right in favor of parents and students to be represented equitably on the negotiated rulemaking committee, that Education denied that right to parents and students, and thus that plaintiffs have suffered concrete and particularized injuries sufficient to support standing. Pls.' Opp'n at 7. Second, plaintiffs claim that the final regulations, as influenced by Education's allegedly flawed process, directly harm their particularized interests. Id. at 10. Education denies that plaintiffs have standing to sue on either of these theories. As to the advocacy group plaintiffs, Education contends that the NCLBA gave them no right to participate in the negotiated rulemaking process; as to Lindsey, Education argues that she cannot show that Education's alleged procedural violation concretely injured any of her particularized interests. Additionally, ...


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