Fresh Start Academy v. Toledo Board of Education, 2005 WL 757026 (N.D. Ohio Apr. 4, 2005)
A federal district court in Ohio has ruled that the No Child Left Behind Act (NCLB) does not create a private right of action for private providers of supplemental education services (SES) to sue local school districts over the NCLB requirement that schools that fail to make adequate yearly progress (AYP) must offer students supplemental educational services. Under NCLB, such school districts are required to allocate a certain percentage of their federal funds to provide SES. School districts must provide parents with a list of state-approved SES providers, from which parents choose. Fresh Start Academy, a private SES provider, filed suit against Toledo Public Schools (TPS), alleging that TPS violated its rights under NCLB by depriving it of a fair opportunity to obtain SES funds. TPS filed a motion to dismiss Fresh Start's claim, arguing that NCLB does not confer on private SES providers a right of action to enforce NCLB's SES provisions. Relying on the U.S. Supreme Court's decision in
Gonzaga University v. Doe, 536 U.S. 273 (2002), the district court concluded that Congress did not intend to imply any such right of action. Like the Family Education Rights and Privacy Act (FERPA) at issue in
Gonzaga, the court found, NCLB focuses on the entity regulated, rather than the individual benefitted. The court concluded that: (1) NCLB lacks the sort of "rights-creating language" required to demonstrate that Congress clearly intended to create a private right to sue; (2) NCLB has an "aggregate focus," rather than being concerned with whether the needs of particular individuals are being met; and (3) NCLB's primary enforcement tool permitting the U.S. Department of Education to withhold funds from noncompliant states indicates that "Congress did not intend to provide for piecemeal enforcement by individuals."
Fresh Start Academy v. Toledo Board of Education, 2005 WL 757026 (N.D. Ohio Apr. 4, 2005)
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Editor's Note: For a summary of an earlier court decision addressing a private right of action under NCLB, see below.]
[NSBA School Law pages on ACORN v. New York City Dep't of Ed.]