The decision found the provisions' individual-focused language insufficient, and also delivered troubling dicta regarding Medicaid. However, the court ultimately distinguishes the Medicaid Act from NCLB, saying Medicaid is focused on individuals while NCLB is not. Newark Parents Ass’n v. Newark Pub. Schools, --- F.3d ---, 2008 WL 4937384 (3d Cir. Nov. 20, 2008) (No. 07-4002).
This putative class action was brought by Newark, NJ parents. NCLB provides that when a school is identified as “low-performing” under the Act, the local school agency “shall promptly provide to a parent or parents” an explanation of the identification; what is being done about it; how parents can get involved; and their right to transfer to another school or obtain supplemental educational services. 20 U.S.C. § 6316(b)(6). Another notice provision states that the local agency “shall notify the parents of each student…that the parents may request, and the agency will provide the parents on request,” information about their teachers’ qualifications. § 6311(h)(6). Finally, the Act states that “the local educational agency … shall ... arrange for the provision of supplemental educational services to eligible children in the school” from an appropriate provider. § 6316(e)(1). However, children of low-income families will have priority in receiving such services. The plaintiffs claimed they had been denied all of these modest rights.
Private enforcement of NCLB was an issue of first impression in the courts of appeals, though the panel cited a raft of district court decisions holding that, “whatever the provision at issue,” NCLB cannot be enforced through § 1983. In fact, nearly all of these courts have rejected individual enforcement of NCLB provisions without any discussion. One exception is ACORN v. NYC Dept. of Education, 269 F.Supp.2d 338 (S.D.N.Y.2003), which contained an analysis similar to the Third Circuit’s. Notably, NCLB is a statute ill suited to enforcement through preemption actions, because typically the subject of litigation is inaction by local officials rather than a state law, policy or regulation.
The district court held that the NCLB provisions were not enforceable under § 1983. The plaintiffs claimed that the district court erred because it focused on the statute’s overall structure and not the specific provisions at issue. The circuit panel said that, “[s]eparate and apart from whether the District Court's analysis of the Act was as thorough as appellants would have had it be, the Court reached the correct conclusion.”
Discussion of Sabree and Medicaid
The panel extensively discussed Sabree ex rel. Sabree v. Richman, 367 F.3d 180 (3d Cir.2004), in which the court permitted enforcement of Medicaid’s “availability” provision via § 1983. The court characterized Sabree as “a very close case,” which turned on “balancing” that provision’s “specific rights-creating language” against the “general structure of the Medicaid Act.” Moreover, the court said, the “close” call in Sabree was “buttressed by Supreme Court precedent addressing the identical language at issue in that case.”
Despite this narrow reading of Sabree, the court identifies a key distinction between the Medicaid Act and NCLB. In discussing NCLB’s “aggregate focus” (see below), the court points to some similarities between the overall structure of NCLB and Medicaid. Critically, however, the court stated that NCLB’s focus is on regulating school districts, while Medicaid’s focus is on providing benefits to individuals.
Rejecting rights-creating language
The court held that NCLB’s notice and supplemental service provisions created clear, specific, binding obligations that benefit parents and children. Accordingly, the remaining question was whether – balanced against the statute’s overall structure – the provisions contained sufficient right-creating language. The court said that the language of those provisions, “while admittedly similar in some ways to the Medicaid Act's provisions,” was distinguishable from the language of Title VI and Title IX (“No person …shall…be subjected to discrimination”), which the Supreme Court has characterized as the gold standard for enforceable rights. The court took pains to diminish the provisions’ use of the individually-focused terms “parent” and “student”:
In the NCLBA, there are two subjects: the primary subject is always the State and the “local educational agency,” while “the parents of each student” are the secondary subject-they benefit from the provision but only as a result of regulation imposed upon the State and its actors. Stated somewhat differently, the focus of the NCLBA is on the entity regulated and is at least one step removed from the interests of individual students and parents, whereas the focus of the Medicaid Act is on the individuals protected rather than the entity regulated.
The court applied this analysis to both the notice and supplemental services provisions. It also stated that the supplemental services provisions had a clear aggregate focus because they prioritize services for some (low-income) students over others.
Medicaid as payment?
The court also extracted from Sabree a distinction between provisions that guarantee “essentially financial benefits” and the “essentially non-monetary” benefits guaranteed by NCLB. Importantly, the court used this concept to distinguish Sabree, saying that the right to “medical assistance” under the Medicaid Act is “essentially financial” because it is defined as payment for services in 42 U.S.C. § 1396d(a)(15). Since, by contrast, the NCLB rights invoked in this case were non-monetary in nature, they were not suited to enforcement under § 1983.
The characterization of Medicaid assistance as purely monetary in nature has been used by other courts to reject Medicaid “reasonable promptness” claims. Mandy R. v. Owens, 464 F.3d 1139 (10th Cir. 2006); Bruggeman v. Blagojevich, 324 F.3d 906, 910 (7th Cir. 2003). However, the court’s discussion of it here is clearly dicta.
“Overall structure”
Finally, the court focused on the general appropriations and enforcement provisions of NCLB. Sabree held that similar provisions in the Medicaid Act “cannot neutralize the rights-creating language” of other Medicaid provisions. Here, however, the court noted that the NCLB’s appropriations provision “makes no mention of individuals,” and that the Act provides only for enforcement by the federal government in the form of withholding funds. Like the student privacy statute in Gonzaga Univ. v. Doe, 536 U.S. 273 (2002) -- and, though not noted by the court, unlike Medicaid – NCLB lacks any administrative mechanism for individuals. “Read in concert with the less-than-rights-creating-language used in the notice and supplemental education services provisions,” the court found that “the overall structure of the Act supports the conclusion” that Congress did not anticipate private enforcement.
Implications
The full ramifications of this decision will take time to become clear, but we can hazard a few observations. First, the court drew a clear distinction between this NCLB and the Medicaid Act, reaffirming that Medicaid’s core provisions focus on individuals.
Second, the phrasing of the NCLB provisions here is similar to many provisions in other statutes that have been successful under Gonzaga. Medicaid and housing decisions from other circuits have held that use of individual-focused terms like “individual,” “family” and “person” satisfies Gonzaga. See, e.g., Westside Mothers v. Olszewski, 454 F.3d 532 (6th Cir. 2006); Watson v. Weeks, 436 F.3d 1152 (9th Cir. 2006); Johnson v. Hous. Auth. of Jefferson Parish, 442 F.3d 356, 360 (5th Cir. 2006); Price v. City of Stockton, 390 F.3d 1105 (9th Cir. 2004). The Third Circuit panel’s “balancing” approach and its description of the statutory language here as “less-than-rights-creating” may indicate that such language is not enough in all cases.
Third, the Third Circuit evaluated not only the specific provision being litigated but also the whole statute. When other provisions of the same statute have been held enforceable (as with Medicaid and the Housing Act), this is not likely to weigh decisively against enforcement. On the other hand, a streak of losses under some provisions of a law could weaken claims under other provisions. This “whole-statute” approach could benefit plaintiffs, in cases where reading different provisions together strengthens the case for private enforcement.
Finally, the court's discussion of the supposedly monetary nature of Medicaid benefits is dicta, because the court was not squarely presented with the issue. Moreover, this interpretation of the Medicaid Act is inconsistent with the actual holding of Sabree, which permitted claims for distinctly non-monetary injunctive relief.
