Ninth Circuit Decision Allows Intern Teachers to Temporarily Meet "Highly Qualified" Status Under NCLB

In Renee v. Duncan (Renee III), issued May 10, 2012, the federal 9th Circuit Court of Appeals determined that a Department of Education regulation allowing "intern teachers" to meet the No Child Left Behind ("NCLB") definition of highly qualified continued to violate the text of NCLB, but acknowledged that a 2010 action by Congress amended federal law, at least temporarily, to permit the Department of Education regulation to go into effect. As a result of the 9th Circuit's most recent decision, intern teachers who under the regulation "demonstrate satisfactory progress toward full certification" are considered "highly qualified" within the meaning of NCLB.

The Renee case is based upon a clash between the supporters of traditional teacher education and proponents of alternative-teaching programs. The original lawsuit (Renee I) was filed by a group of California activists and groups of minority parents and children, who argue that the regulation permitted a disproportionate number of teaching "interns" to teach in California schools with large proportions of minority and low-income students.

The action by Congress noted above was contained in Section 163 of a 2010 appropriations bill, and was only temporary through the end of the 2012-13 academic year. The 9th Circuit stated:

"Section 163 has temporarily modified NCLB. It provides that the term 'highly qualified teacher' in NCLB includes a teacher who meets the requirements of [the Department of Education regulation]. Section 163 thus provides that an alternative-route teacher who merely 'demonstrates satisfactory progress toward full certification' is 'highly qualified' within the meaning of NCLB. Under Section 163, [the regulation] is consistent with NCLB and is therefore valid. That is, so long as Section 163 remains in effect, it overrules our decision in Renee II."

In Renee II, issued in September 2010, the Court issued a decision that blocked the Department of Education regulation that favored intern teachers, and led to the 2010 action by Congress to amend the federal law. The original decision (Renee I) was in favor of Department of Education regulation.

In Renee III, the 9th Circuit court further stated:

"By its own terms, Section 163 remains in effect only through the end of the 2012-13 school year. If Congress takes no further action, the pre-Section 163 version of NCLB will again be the law. In that event, [the federal regulation] will again be invalid because its definition of 'highly qualified teacher' will again be inconsistent with the statutory definition."

Therefore, if Congress fails to act to renew Section 163 by 2013, the opinion in Renee II would again become controlling, and the Department of Education regulation would be invalid resulting in intern teachers not meeting the definition of "highly qualified" under the NCLB.

Given the "temporary" nature of the Congress' enactment of Section 163, school districts should bear in mind that absent further action by Congress in 2013, intern teachers will only be considered "high qualified" under NCLB through the end of the 2012-2013 school year.

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