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No Lawyer Left Behind

The No Child Left Behind Act might soon be nicknamed No Lawyer Left Behind if, as some education experts fear, a flood of lawsuits flows from the sweeping federal law.

Charlie King, a New York City lawyer who filed what may be one of the first such actions nationwide, said he's heard from people across the country who want to sue their local schools.

Potential litigants in California, Illinois, Louisiana, and Washington, D.C., have contacted his office with queries about starting similar suits in their school districts.

King's suit against the Albany and New York City school systems alleges that parents were not properly notified that their children were in poor-performing schools and had the right to transfer out or get extra academic help.

Under the federal act, schools with poor test scores must offer students the option to transfer to another school and to get tutoring.

King, who unsuccessfully ran for lieutenant governor with Democrat Andrew Cuomo last year, was back in Albany Wednesday seeking to scare up more potential plaintiffs by promoting a toll-free number for parents who have complaints about the city district regarding NCLB.

But he also touched on a scenario being discussed by educators nationwide, that NCLB could lead to an eruption of similar lawsuits.

"It's not unlikely that we'll see some litigation around NCLB," said Ross Weiner, policy director for the Education Trust, a Washington, D.C.-based group that focuses on improving schools in poor areas. "You have a lot of new obligations and you have a lot of systems that are resistant to change."

So far, there has been just one other major lawsuit since NCLB went into effect last fall. A group of community organizers affiliated with the ACORN anti-poverty organization filed suit in California, alleging the state lacks enough "highly qualified" teachers as required under NCLB.

Still, it's unclear how such lawsuits will fare in court because of the way NCLB is written. The law does not expressly state that parents have the right to sue a school district. NCLB lawsuits would have to rely on a legal theory known as "implied right of action." Some legal experts, though, say court precedents make it unlikely an implied right would be recognized.

"The courts are not going to imply a private right of action," said Julie Underwood, counsel for the National School Boards Association.

But Underwood conceded there is nothing to stop a parent from suing. "This is America. We love to sue," she said.

King said he is looking to expand his suit to other New York cities with poor-performing schools, such as Buffalo. "We will be amending the complaint within the next couple of weeks to include people from other parts of the state," he said.

The Albany plaintiff, Charlene Wilson, alleged she didn't receive proper notification about her options under NCLB. Her grandson, who is in her legal custody, attends Arbor Hill Elementary, which based on standardized test scores is one of several poor performing schools in the Capital Region.

Albany school officials say they sent out notifications of poor-performing schools and that the state Education Department reviewed and approved their letter.

"Our attorneys are telling us they have no case," said district spokeswoman Lisa Stratton.

Wilson told the Times Union she wasn't unhappy with the education her grandson, Anthony Ray Gilmore Jr., is receiving at Arbor Hill. "His teacher is good with him," she said of his kindergarten teacher.

She joined the lawsuit in hopes of improving the notification process.

King said New York City school officials contacted him soon after the suit was filed but he hasn't yet heard from Albany district officials.

He has, however, been in contact with Albany Mayor Jerry Jennings, an early Cuomo backer before the gubernatorial candidate dropped out of the race.

King also said he might seek an injunction or court order that would speed the delivery of services such as tutoring or allowing kids to transfer out of poor performing schools, even if the school districts say they have no available tutors or alternate spaces.

— Rick Karlin
Federal school act a possible litigation magnet
Albany Times-Union
http://www.timesunion.com/AspStories/story.asp?storyID=105016&category=REGION&BCCode=HOME&newsdate=2/13/2003
Feb. 13, 2003


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