JGRAHAM2010
Junior Member
The federal No Child Left Behind Act (NCLB) defines who is and isn't "highly qualified" as a teacher (see 20 U.S.C. §7801(23)). California has a teacher credentialing body, the California Commission on Teacher Credentialing (CCTC) issues permits to teach, which you must have to teach for public schools. (That is, if you have a credential a public school can hire you to teach for them.) Moreover, you can teach for any non-public school without a credential, of course. And, furthermore, you can participate in a "common occupation" in California as a matter of "fundamental" right, such as tutoring kids in math, science, English, etc. (i.e. tutoring is the "common occupation" in question). Indeed, schools can hire tutors with no teaching credentials whatsoever.
Under the terms of the NCLB; schools and school districts that failed to meet minimum standards of academic performance in the student body must pay out up to 20% of their federal Title 1 funds to provide supplemental educational services for students, where that is a choice to parents of (1) sending their kids to a better school in the school district or area or (2) paying for tutoring services of a "qualified" tutor. The federal government at Title 20 U.S.C. §6316(e)(1) authorized the state educational agencies themselves (e.g. Calif. Dept. of Ed. and Board of Ed.) to establish "reasonable" qualifying "criteria" for tutoring business entities that would seek to be on a state list of authorized providers of such tutoring services (should a parent opt to have their child receive tutoring that the school or school district will pay for).
Now, here is the issue.
I seek to be free to tutor as a "highly qualified" teacher individual, where the services are to be paid for under the federal NCLB program for this.
But I can't just go to a school district or parents and say here I am, hire me.
The California legislature enacted some regulations under Title 5 §13075 et. seq. (compensatory education services) where they established qualifying criteria for tutors that will provide tutoring and be paid for the services under the terms of the NCLB (i.e. with federal funds). Of course, even if a school paid for the tutoring services of an outside contractor tutor out of their funds they would still be paying for tutoring with their money. The only thing the federal statutes say is that the failing school or school district must commit up to 20% of it federal Title 1 funds for tutoring, and that they should hire tutors that have show by objective means to be effective in helping students to achieve academic proficiency. The state of California legislature took that to mean that an applicant to be placed on the California list of state approved tutoring providers must provide statistical data based on student academic data and show a statistical improvement in student academic performance where they have tutored a student. But I am a "highly qualified" teacher, and so I am already "qualified" to teach, let alone serve as a tutor. . . indeed, the federal government in their guidance manual on the NCLB specified that an applicant that has NOT even tutored students in the past (e.g. a highly qualified credential teacher) need NOT have run a tutoring business in the past and need only verify that they will provide tutoring services in a manner that is similar to other providers of such tutoring services that have already been approved by the state educational agency.
What I am saying is that the bureaucrats in the Calif. Dept. of Ed. won't accept my application, even as a "highly qualified" teacher that verified that I will run my tutoring program like every other provider that has been approved, by giving my student-clients tests and quizzes with problems typical of those presented on their exams by their teachers and in conformity with such problems the published state academic content standards.
The state bureaucrats even tell me that I cannot prove financial solvency, and so they reject my application for that reason too! (Absurd!) I explained that I am a substitute teacher and even if I was bankrupt I could still get to my students homes to provide a tutoring lesson. (I also point out that I have no employees, but that if I ever hire any I would have enough money in the bank available to cover even 2 months of their salaries, in case the schools fail to pay me for services rendered on time.)
Anyway, the state bureaucrats I have dealt with will not let me even file and application to be fairly placed on the state list of "approved" providers of such services. (Indeed, the application was detailed and tedious, but I believe I filed a complete application that must have been "approved.") And when I sought to appeal their terrible action against me they said that they reject my appeal without looking at what I had to say because they deemed my application to be incomplete because when they looked at it they determined I was not (1) financial solvent and (2) had not proven by statistical tests they require (and presented letters of recommendation they require) and had not run a tutoring business for 2 years (as they also require), and (3) had not proven myself to be qualified to do business in California (where I showed my Calif. Drivers License and told them in my application I am a sole proprietor/sole employee using my own name and that that they could see that I have lived in the Long Beach area of California for a number of years, which is all the proof they need under the circumstances). Of course, the California Dept. of Ed.s qualification criteria run afoul of federal regulations! I do NOT have to show or prove any of these things!
Calls to the California Dept. of Ed. and Board of Ed. have proven a waste of time.
I need to sue.
I have filed a claim against Jack O'Connell and a few others who might be held personally liable for violations of my fundamental rights under California law to work in a common occupation (i.e. tutor -- not "teacher" in this case, though I am a teacher, and I mention that there is no "federal" fundamental right to work in a common occupation where state economic legislation is at issue, but I wonder if this is even economic legislation, but something else entirely). Also, my federal rights are pretty well established here and they have been violated, such that I may reasonably make a Title 42 U.S.C. §1983 action. The action though involves an "approval" by a state agency, and under California law state employees are immune from liability for denying an approval as under California Gov. Code §821.2., not to mention §820.2.
But I would point out that the state legislature created a statute that if wrongly applied by a state employee would result in a deprivation of a fundamental right (under California law), as it did in this case. Would that make a difference? That is, would there NOT be "discretion" where a fundamental right is violated? Or is "discretion" still a valid claim to immunity here on the part of the state employee (i.e. given the mandate of Cal. Gov. Code §820.2).
Also, a COMMON LAW right has been violated, the right to "prospective economic advantage," where by being fairly included on the list of "approved" providers of services I would be certain to obtain employment, or at least I could offer my services to parents seeking such NCLB-mandated tutoring for their children.
I might also point out that there might be a violation of the NCLB itself here, where at 20 U.S.C. §6316(d) we are told that the NCLB "shall not be construed" to alter or effect the rights of school or school district employees under federal, state, or local law or orders. But as a teacher I have the right to even seek teaching jobs, just not where the NCLB is concerned?
I am looking for help in stating a case here.
Also I am not the only teacher being treated like this, and this is really a class matter.
I do intend to sue for the opportunity to "tutor" even where the payment for the tutoring is mandated under the terms of the NCLB.
If you have questions about the statutes and regulations I will be able to give you information on that , but there is no case law on this issue.What is the name of your state (only U.S. law)?
Under the terms of the NCLB; schools and school districts that failed to meet minimum standards of academic performance in the student body must pay out up to 20% of their federal Title 1 funds to provide supplemental educational services for students, where that is a choice to parents of (1) sending their kids to a better school in the school district or area or (2) paying for tutoring services of a "qualified" tutor. The federal government at Title 20 U.S.C. §6316(e)(1) authorized the state educational agencies themselves (e.g. Calif. Dept. of Ed. and Board of Ed.) to establish "reasonable" qualifying "criteria" for tutoring business entities that would seek to be on a state list of authorized providers of such tutoring services (should a parent opt to have their child receive tutoring that the school or school district will pay for).
Now, here is the issue.
I seek to be free to tutor as a "highly qualified" teacher individual, where the services are to be paid for under the federal NCLB program for this.
But I can't just go to a school district or parents and say here I am, hire me.
The California legislature enacted some regulations under Title 5 §13075 et. seq. (compensatory education services) where they established qualifying criteria for tutors that will provide tutoring and be paid for the services under the terms of the NCLB (i.e. with federal funds). Of course, even if a school paid for the tutoring services of an outside contractor tutor out of their funds they would still be paying for tutoring with their money. The only thing the federal statutes say is that the failing school or school district must commit up to 20% of it federal Title 1 funds for tutoring, and that they should hire tutors that have show by objective means to be effective in helping students to achieve academic proficiency. The state of California legislature took that to mean that an applicant to be placed on the California list of state approved tutoring providers must provide statistical data based on student academic data and show a statistical improvement in student academic performance where they have tutored a student. But I am a "highly qualified" teacher, and so I am already "qualified" to teach, let alone serve as a tutor. . . indeed, the federal government in their guidance manual on the NCLB specified that an applicant that has NOT even tutored students in the past (e.g. a highly qualified credential teacher) need NOT have run a tutoring business in the past and need only verify that they will provide tutoring services in a manner that is similar to other providers of such tutoring services that have already been approved by the state educational agency.
What I am saying is that the bureaucrats in the Calif. Dept. of Ed. won't accept my application, even as a "highly qualified" teacher that verified that I will run my tutoring program like every other provider that has been approved, by giving my student-clients tests and quizzes with problems typical of those presented on their exams by their teachers and in conformity with such problems the published state academic content standards.
The state bureaucrats even tell me that I cannot prove financial solvency, and so they reject my application for that reason too! (Absurd!) I explained that I am a substitute teacher and even if I was bankrupt I could still get to my students homes to provide a tutoring lesson. (I also point out that I have no employees, but that if I ever hire any I would have enough money in the bank available to cover even 2 months of their salaries, in case the schools fail to pay me for services rendered on time.)
Anyway, the state bureaucrats I have dealt with will not let me even file and application to be fairly placed on the state list of "approved" providers of such services. (Indeed, the application was detailed and tedious, but I believe I filed a complete application that must have been "approved.") And when I sought to appeal their terrible action against me they said that they reject my appeal without looking at what I had to say because they deemed my application to be incomplete because when they looked at it they determined I was not (1) financial solvent and (2) had not proven by statistical tests they require (and presented letters of recommendation they require) and had not run a tutoring business for 2 years (as they also require), and (3) had not proven myself to be qualified to do business in California (where I showed my Calif. Drivers License and told them in my application I am a sole proprietor/sole employee using my own name and that that they could see that I have lived in the Long Beach area of California for a number of years, which is all the proof they need under the circumstances). Of course, the California Dept. of Ed.s qualification criteria run afoul of federal regulations! I do NOT have to show or prove any of these things!
Calls to the California Dept. of Ed. and Board of Ed. have proven a waste of time.
I need to sue.
I have filed a claim against Jack O'Connell and a few others who might be held personally liable for violations of my fundamental rights under California law to work in a common occupation (i.e. tutor -- not "teacher" in this case, though I am a teacher, and I mention that there is no "federal" fundamental right to work in a common occupation where state economic legislation is at issue, but I wonder if this is even economic legislation, but something else entirely). Also, my federal rights are pretty well established here and they have been violated, such that I may reasonably make a Title 42 U.S.C. §1983 action. The action though involves an "approval" by a state agency, and under California law state employees are immune from liability for denying an approval as under California Gov. Code §821.2., not to mention §820.2.
But I would point out that the state legislature created a statute that if wrongly applied by a state employee would result in a deprivation of a fundamental right (under California law), as it did in this case. Would that make a difference? That is, would there NOT be "discretion" where a fundamental right is violated? Or is "discretion" still a valid claim to immunity here on the part of the state employee (i.e. given the mandate of Cal. Gov. Code §820.2).
Also, a COMMON LAW right has been violated, the right to "prospective economic advantage," where by being fairly included on the list of "approved" providers of services I would be certain to obtain employment, or at least I could offer my services to parents seeking such NCLB-mandated tutoring for their children.
I might also point out that there might be a violation of the NCLB itself here, where at 20 U.S.C. §6316(d) we are told that the NCLB "shall not be construed" to alter or effect the rights of school or school district employees under federal, state, or local law or orders. But as a teacher I have the right to even seek teaching jobs, just not where the NCLB is concerned?
I am looking for help in stating a case here.
Also I am not the only teacher being treated like this, and this is really a class matter.
I do intend to sue for the opportunity to "tutor" even where the payment for the tutoring is mandated under the terms of the NCLB.
If you have questions about the statutes and regulations I will be able to give you information on that , but there is no case law on this issue.What is the name of your state (only U.S. law)?
