PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ZUNI PUBLIC SCHOOL DISTRICT NO. 89; GALLUP-MCKINLEY COUNTY PUBLIC SCHOOL DISTRICT NO. 1,

Petitioners,

vs.

UNITED STATES DEPARTMENT OF EDUCATION,

Respondent.

----------------------------

NEW MEXICO STATE DEPARTMENT OF EDUCATION,

Intervenor.

No. 01-9541

ON REHEARING EN BANC FROM A DECISION OF THE

SECRETARY OF THE UNITED STATES DEPARTMENT OF EDUCATION

(Docket No. 99-81-I)

Ronald J. VanAmberg of Roth, VanAmberg, Rogers, Ortiz, Fairbanks & Yepa, L.L.P., Santa Fe, New Mexico (George W. Kozeliski of Gallup, New Mexico, with him on the brief), for Petitioners.

Michael Robinson, Attorney, U.S. Department of Justice (Peter D. Keisler, Assistant Attorney General; Robert S. Greenspan and Peter R. Maier, Attorneys, U.S. Department of Justice; and Stephen H. Freid and Mark W. Smith, Attorneys, U.S. Department of Education, with him on the brief), Washington, D.C., for Respondent.

Leigh M. Manasevit, Special Assistant Attorney General for the State of New Mexico, of Brustein & Manasevit, Washington, D.C., for Intervenor.

Before TACHA, Chief Judge, SEYMOUR, EBEL, KELLY, HENRY, BRISCOE, LUCERO, MURPHY, HARTZ, O'BRIEN, McCONNELL, and TYMKOVICH, Circuit Judges.

PER CURIAM.

Two local educational agencies (LEAs) (Zuni Public School District No. 89 and Gallup-McKinley Public School District No. 1) filed a petition for review from the Secretary of Education's decision that the State of New Mexico was equalized pursuant to 20 U.S.C. § 7709(b) and the corresponding regulations at 34 C.F.R. § 222.162(a). See also id. pt. 222, subpt. K, app. A divided panel of this court denied the petition for review. Zuni Pub. Sch. Dist. No. 89 v. U.S. Dep't of Educ., 393 F.3d 1158, 1169 (10th Cir. 2004). We granted rehearing en banc, and in accordance with our local rule, the judgment was vacated, the mandate stayed and the case was restored as a pending appeal. 10th Cir. R. 35.6. On rehearing en banc, the decision of the Secretary is affirmed by an equally divided court. The panel decision is hereby vacated. See id.