There are about 2,500 public schools in New Jersey, and 517 of them – more than 20% – must offer and pay for private tutoring for many of their students. This is the result of the No Child Left Behind (NCLB) Act of 2001. The far-reaching effects of this legislation, considered the most significant of the Bush Administration, are still growing.

NCLB emphasizes accountability for results, more choices for parents, greater local control and flexibility, and an emphasis on benefiting from research into what works. This Act does not provide meaningful “school choice,” whereby students could transfer to a better private school, but the Act has allowed a few students to switch to another public school.

NCLB requires annual testing of students in school, and assesses schools based on how well their students perform. When a school fails to meet a threshold of performance two years in a row, then it must provide and pay for Supplemental Educational Services (SES), which consist of after-school private tutoring at public expense. Over 20% of schools in New Jersey, which supposedly has one of the better public school systems in the nation, must now support SES services.

The SES private tutoring services can be faith-based. The tutors do not have to be certified, and need only have an associate’s degree or an equivalent of about 60 hours of college coursework. They need not hold a four-year college degree, though this requirement may vary from state to state. Schools typically make their facilities available after the official school day, and nearly 20,000 students were using SES by the 2003-2004 school year; probably far more use it today.

Yet relatively few parents are aware of their rights, and few churches are participating in the program even though faith-based programs are allowed. On Nov. 28, 2006, parents of children attending public schools in Newark, New Jersey, filed a lawsuit alleging that there was a huge number of Newark public schools defined as “in need of improvement” or “failing.” The lawsuit stated that the Act’s requirements were being violated, and that Newark school officials were not notifying the parents of their rights to obtain extra services.

An audit in the 2004-2005 school year substantiated these allegations: the public schools had failed to meet even the minimum NCLB Notice Provisions pertaining to parents’ rights to transfer their children to a non-failing school and to obtain SES for their children.

While no one disputes that parents enjoy these new rights under the NCLB, the Court of Appeals for the Third Circuit recently held that no parent could sue to enforce those rights or be told about them. Newark Parents Ass’n v. Newark Public Schools, 547 F.3d 199 (3d Cir. 2008).

The Court held that “rights-creating” language must be explicit in a law in order to establish individual enforcement powers; the statute must impose a “binding and unambiguous” obligation on the State to be enforceable by a parent. The Court determined that NCLB does not meet these criteria. Parents can, however, complain to the State Department of Education or the U.S. Department of Education and seek enforcement by them.