Public Advocates public comment

Board of Governors
Leo P. Martinez, Chair
UC Hastings College of the Law
Fred H. Altshuler
Altshuler Berzon LLP
Fred W. Alvarez
Wilson Sonsini Goodrich &
Rosati
Denelle M. Dixon-Thayer
Terra Firma
Martin R. Glick
Howard, Rice, Nemerovski,
Canady, Falk & Rabkin
Joan Harrington
Santa Clara University
School of Law
Dolores Jimenez
Kaiser Permanente

Via email to oira_submission@omb.eop.gov and ICDocketMgr@ed.gov
March 18, 2011
Office of Information and Regulatory Affairs
Attn: Education Desk Officer
Office of Management and Budget
725 17th Street NW, Room 10222
New Executive Office Building
Washington, D.C. 20503

Ann M. O’Leary
UC Berkeley School of Law
Rohit K. Singla
Munger, Tolles & Olson LLP

RE: FR DOC 2011-3489, DATA COLLECTION ON TEACHER QUALITY
& EQUITY

Abdi Soltani
ACLU of Northern California
Chris J. Young
Keker & Van Nest LLP

Staff
Jamienne S. Studley
President
John T. Affeldt
Richard A. Marcantonio
Managing Attorneys
Liz Guillen
Director of Legislative
& Community Affairs
Wynn Hausser
Director of Communication
Edward Sungkyu Lee
Director of Finance &
Administration
Guillermo Mayer
Senior Staff Attorney
Tara Kini
Samuel Tepperman-Gelfant
Staff Attorneys
Parisa Fatehi
Equal Justice Works Fellow
Katherine Valenzuela
Policy Advocate
Rebecca Durlin Smith
April Dawn Hamilton
Pedro Hernandez
Patty Leal
Caroline Piper
Administrative Staff

Dear Director King,
We are pleased to learn that your Office will soon undertake the
collection of important information related to states’ and local districts’
implementation of NCLB’s and ARRA’s teacher quality and equity
provisions. We write to bring to your attention a critical gap in state and
local implementation of these provisions caused by a Department of
Education regulation that undermined NCLB’s and ARRA’s statutory
definition of the term “highly qualified teacher.” That regulation, 34
C.F.R. § 200.56(a)(2)(ii), permits states to label teachers as “highly
qualified” when they are still in training—and, in many cases, just
beginning training—in alternative route programs. It has had broad ripple
effects in that it allows states and districts to concentrate teacher trainees
in schools serving low-income and minority students, to hide that fact
from parents and the public, and to avoid developing and implementing
meaningful teacher equity plans to overcome these inequities.
Public Advocates represents numerous California students, parents,
and grassroots community organizations in a legal challenge to the
Department’s regulation. The plaintiffs in Renee v. Duncan filed suit to
enforce their right to equal access to “highly qualified” teachers and to full
disclosure when their child is being taught by a teacher who is not “highly
qualified.” They want for their own children what students in more
affluent communities have: fully-prepared teachers. And, indeed, research
confirms what our clients’ experiences (and common sense) dictate: that
teachers-in-training are significantly less effective in supporting student

Public Advocates Inc.
Page 2 of 3

achievement than those who are fully trained when they enter teaching.1 Even the Department’s
own study found that the students of California interns were outperformed by those of fullycredentialed teachers.2
California, with its more than 8,000 alternative route trainees (or “interns”), exemplifies
the pernicious consequences of the Department’s regulation. Notwithstanding the state’s
approved Teacher Equity Plan, a California student’s chance of being taught by an intern is
strongly correlated with the concentration of students of color at the school, the concentration of
low-income students at the school, and the level of academic achievement at the school. For
example, nearly a quarter of California interns (23%) teach in the 10% of schools serving the
highest concentrations of minority students (98-100% non-white), while less than 2% teach in
the 10% of schools with the lowest concentration of minority students. As Attachment 1
demonstrates, public schools in California with the highest percentages of intern teachers are the
lowest-performing schools with the highest concentrations of low-income students and students
of color.3 And significantly, more than half of California’s interns teach special education.
In September 2010, the Ninth Circuit Court of Appeals sided with our clients and ruled
that the Department’s regulation was unlawful because it “patent[ly]” conflicted with the
statutory definition of “highly qualified teacher, which requires that only fully-certified teachers
may be “highly qualified.” Renee v. Duncan, 623 F.3d 787 (9th Cir. 2010). Fearing mid-year
disruptions to schools that might be caused by the court’s decision, Congress passed in a
temporary provision to delay implementation of the court’s ruling by codifying the Department’s
regulation until June 2013. Section 163 of H.R. 3082, enacted in December 2010 without public
notice or comment, has since been opposed by a broad coalition of over 70 civil rights, disability,
parent, student, community, and education groups (including our clients) and is likely to be
reexamined as part of the ESEA reauthorization. (See Attachment 2).
As you undertake a study of teacher equity, we urge you to examine the national effects
of the Department’s unlawful regulation. For example, how many states relied on the loophole
created by the Department’s regulation and labeled individuals still participating in alternate
route programs as “highly qualified”? How many alternate route trainees are teaching in each
state, and how are these trainees distributed? How are states enforcing the requirements of the
Department’s regulation that mandate “highly qualified” trainees to receive high-quality
professional development before and while teaching, to be intensively supervised, and to be
permitted to claim this exemption for no more than three years? This information will provide
critical context for Congress to consider as it undertakes ESEA reauthorization and considers
changes to NCLB’s teacher quality and equity provisions.

1

See, e.g., Heilig, J.V., & Jez, S.J., Teach for America: A Review of the Evidence. Education and the Public
Interest Center & Education Policy Research Unit (June 2010), available at
http://greatlakescenter.org/docs/Policy_Briefs/Heilig_TeachForAmerica.pdf
2
See Jill Constantine et al., An Evaluation of Teachers Trained Through Different Routes to Certification, U.S.
Department of Education (2009) at 65, available at http://www.mathematicampr.com/publications/pdfs/education/teacherstrained09.pdf.
3
See generally Center for the Future of Teaching and Learning, et al., Teaching and California’s Future, The Status
of the Teaching Profession 2007, Full Report, at 13, 73, 76, available at
http://www.cftl.org/documents/2007/tcf07/TCFReport2007.pdf

Public Advocates Inc.
Page 3 of 3

Thank you for the opportunity to comment on your proposed study. Please do not
hesitate to contact me at (415) 431-7430 ext. 306/ tkini@publicadvocates.org if I can answer any
further questions.

Sincerely,

Tara Kini
Attorney for Renee v. Duncan Plaintiffs
Attachments

Source: Decl. of Patrick Shields, Exhibit B

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January 27, 2011
Honorable Barack Obama
President of the United States
1600 Pennsylvania Avenue, NW
Washington, D.C. 20500
Dear Mr. President:
As organizations concerned with promoting educational quality and equity, particularly for
students who have traditionally been least well served by our educational system, we are deeply
committed to the development of well-prepared, experienced, and effective teachers for all
communities, and to ensuring that every student has a fully prepared and effective teacher. On
behalf of the nation’s 50 million elementary and secondary students, we write to you with a
sense of urgency about a critical issue that threatens the welfare of many of them.
We are deeply concerned about a provision inserted in H.R. 3082, the Continuing Resolution for
government funding passed in December, which undermined the federal definition of a “highly
qualified teacher” in the No Child Left Behind Act by allowing states to label teachers as “highly
qualified” when they are still in training – and, in many cases, just beginning training – in
alternative route programs.
This provision – inserted in the law without notice to concerned public stakeholders and without
public debate – codifies a Bush-era regulation that was challenged by parents of low-income
students of color in court because their children were disproportionately taught by such
underprepared teachers and because the regulation removed the obligation of states and districts
to disclose and rectify the inequity. The provision seeks to reverse the recent federal appeals
court ruling these parents obtained, which held that the regulation patently violated NCLB’s
unambiguous requirement that only fully prepared teachers be deemed “highly qualified” and
that, as such, teachers still in-training must be publicly disclosed and not concentrated in lowincome, high-minority schools.
Our concern with this provision (and with any federal policy that reinforces the unequal
allocation of fully trained and certified teachers to all students) is that it disproportionately
impacts our most vulnerable populations: low-income students and students of color, English
language learners, and students with disabilities who are most often assigned such underprepared
teachers. Further, this provision hides this disparate reality from parents and the public by
disingenuously labeling teachers-in-training as “highly qualified” and hindering advocacy for
better prepared teachers. Research confirms what logic and experience dictate: that teachers-intraining are significantly less effective in supporting student achievement than those who are
fully trained when they enter teaching, and that the negative effects are particularly pronounced
for students whose success depends most acutely on fully-trained professionals. We believe that
students with the greatest needs should have the best-prepared and most effective teachers to
support their success, and that pursuit of that goal should be the purpose of federal policy.

In the coming weeks, we will propose specific actions to the Administration and the Congress
that can achieve this goal, including repeal of this provision and development of a transparent
definition of teacher quality, along with a set of policies that will allow the nation to put a wellprepared and effective teacher in every classroom. We will work tirelessly and in concert to see
that policy is enacted that will support high-quality teaching for every child.
Respectfully,
Action United
Alliance of Californians for Community Empowerment
Alliance for Multilingual Multicultural Education
American Association of Colleges for Teacher Education
American Association of People with Disabilities
American Association of School Librarians
American Association of State Colleges and Universities
American Council for School Social Work
American Federation of Teachers
ASPIRA Association
Association for Persons in Supported Employment
Association of University Centers on Disabilities
Autistic Self Advocacy Network
Bay Area Parent Leadership Action Network
California Association for Bilingual Education
California Latino School Boards Association
Californians for Justice
Californians Together
Campaign for Fiscal Equity
Campaign for Quality Education
Center for the Future of Teaching and Learning
Center for Teaching Quality
Citizens for Effective Schools
Coalition for Educational Justice
Conference of Educational Administrators of Schools and Programs for the Deaf
Council for Exceptional Children
Council of Parent Attorneys and Advocates
Disability Rights Education and Defense Fund
Easter Seals
ELC, Education Law Center
FairTest, The National Center for Fair & Open Testing
Higher Education Consortium for Special Education
Justice Matters
Knowledge Alliance
Latino Elected and Appointed Officials National Taskforce on Education
Lawyers’ Committee for Civil Rights Under Law
Learning Disabilities Association of America
Los Angeles Educational Partnership

Movement Strategy Center
NAACP
National Alliance of Black School Educators
National Association of Councils on Developmental Disabilities
National Association of School Psychologists
National Association of State Directors of Special Education
National Center for Learning Disabilities
National Council for Educating Black Children
National Council of Teachers of English
National Council of Teachers of Mathematics
National Disability Rights Network
National Down Syndrome Congress
National Down Syndrome Society
National Education Association
National Latino/a Education Research and Policy Project
National League of United Latin American Citizens
North American Association for Environmental Education
Parent-U-Turn
Parents for Unity
Philadelphia Education Fund
Philadelphia Student Union
Public Advocates Inc.
Public Education Network
Rural School and Community Trust
RYSE Center
School Social Work Association of America
Southeast Asian Resource Action Center
Statewide Parent Advocacy Network, Inc.
TASH: Equity, Opportunity, and Inclusion for People with Disabilities
Teacher Education Division of the Council for Exceptional Children
Teachers of English to Speakers of Other Languages
Texas Association for Chicanos and Higher Education
United Church of Christ Justice & Witness Ministries
Youth Together

cc: Arne Duncan, Secretary of Education, U.S. Department of Education