Horne v. Flores; Speaker of the Arizona House of Representatives v. Flores

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Authorship: Anthony Dick

Contents

[edit] Briefs and Documents

Docket: 08-289; 08-294

Issue: Whether the courts below improperly declined to modify an injunction against Arizona for failing to provide sufficient funding for non-English speaking school children.

Merit briefs

Amicus briefs

Oral Argument: Transcript

Decision:Reversed and remanded in an opinion by Justice Alito

[edit] Pre-Argument Articles

[edit] Grant write-up

[edit] Argument Preview

The Equal Education Opportunity Act of 1974 (EEOA) prohibits states from "deny[ing] equal educational opportunity to an individual on account of his or her race, color, sex, or national origin by . . . the failure by an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students and in its instructional programs." Today in Horne v. Flores, No. 08-294 (consolidated with Arizona State Speaker v. Flores, et al., 08-289), the Court will consider (1) whether Arizona has taken "appropriate action" to overcome barriers to English-language learning (ELL) in its schools; and (2) whether Arizona's compliance with the specific ELL requirements of the No Child Left Behind Act of 2001 (NCLB) satisfies the EEOA's more general "appropriate action" requirement.

[edit] Background

In 1992, parents and students in the Nogales Unified School District of Arizona (NUSD) filed a lawsuit in federal court against Arizona, members of the state board of education, and the state superintendent of public instruction, claiming that they had collectively violated the EEOA by failing to take "appropriate action" to overcome learning barriers for ELL students in the school district. Under the state system, money was allocated to schools on a per-pupil basis, with an additional amount of funding for each ELL student. In 2000, after lengthy pre-trial proceedings and a three-day trial, the district court agreed that the defendants had violated the EEOA.

That holding was based largely on the three-part test for compliance established by the Fifth Circuit in Castaneda v. Pickard (1981), which requires a state to (1) adopt an educational theory recognized by some experts in the field; (2) adopt practices and programs reasonably calculated to implement the theory; and (3) show that the program is borne out by practical results. In the district court's view, NUSD had failed the second prong of the Castaneda test by failing to provide a reasonable amount of funding to implement its educational theory with respect to ELL students. The defendants did not appeal this ruling. In 2001, the district court expanded its ruling to apply statewide and ordered Arizona to increase funding for each ELL student to a level that "shall not be arbitrary and capricious, but shall bear a rational relationship to the actual funding needed to implement language acquisition programs." Again, the defendants did not appeal.

Arizona responded to the district court's order by implementing some funding increases and structural reforms for its ELL programs: for example, it significantly improved its ELL infrastructure and adopted an "English immersion" program to help foreign-language students learn English. In 2005, however, the district court deemed these measures inadequate to fulfill the state's obligations under the EEOA because they did not increase incremental funding in accordance with any reasonable estimate of the additional per-pupil cost for ELL students. The district court thus held the state in contempt and imposed a fine of $500,000 per day (escalating over time to $2 million per day) until the state sufficiently increased its ELL funding levels.

By this point, neither Arizona nor the board members objected to the court's injunction, so the leaders from the state legislature intervened on the side of Superintendent Thomas Horne. Together they filed a motion seeking relief under Federal Rule of Civil Procedure 60(b) on the ground that the state had effectively complied with the district's court's original order because (1) it had implemented funding increases and structural reforms; and (2) Congress had subsequently enacted the NCLB, which included new and specific ELL requirements that in turn made clear that Arizona was in compliance. The district court denied the motion.

On appeal in 2006, the Ninth Circuit remanded the case back to the district court for further evidentiary proceedings in light of the changed circumstances, but the district court adhered to its ruling and the Ninth Circuit affirmed.

[edit] Petition for Certiorari

On petition for certiorari, Superintendent Horne (in No. 08-289) advanced two principal reasons for granting review. First, he argued that the lower courts had issued an overly intrusive order by requiring Arizona to adopt a specific means of meeting its obligations under the EEOA. On its face, the broad language of EEOA § 1703(f) requires only that states take "appropriate action" to remove language barriers that impede ELL students. It does not specify that they must meet this obligation with any set level of earmarked per-pupil funding-it is a "performance statute, not a funding statute." Thus, Horne argued, federal courts should defer to state policymakers who are relatively better situated to determine how best to overcome language barriers in state schools. In fact, according to Horne, Arizona had already taken alternative measures to improve its ELL programs that have yielded tangible results for ELL students.

Second, Horne argued that the passage of the NCLB in 2001, with its very specific instructions for state ELL programs, had finally given clear content to the EEOA's vague requirement that states take "appropriate action" to advance ELL. Because both the EEOA and the NCLB serve the same broad function-imposing requirements on states to ensure the advancement of ELL students-the laws should be read together to impose the same substantive requirements. It would be "both unfair and irrational for the federal government, on one hand, to approve Arizona's ELL programs as effective under NCLB, but, on the other hand, to allow the federal judiciary to rule that Arizona has failed to take ‘appropriate action' to assure effective ELL programs under EEOA."

A few days later, state legislative leaders - represented by former Solicitor General Kenneth Starr - filed a separate petition for certiorari, No. 08-294. This petition echoed the arguments about NCLB compliance establishing EEOA compliance, and about the importance of preserving discretion for state legislators in determining education policy at the state level. But it also argued that the Ninth Circuit's decision conflicted with the decisions of three other circuits, all of which had held that Rule 60(b)'s standard for modifying judicial decrees should be applied more flexibly. In particular, these other circuits construe Rule 60(b) as allowing a specific injunction to be dissolved if it is aimed at curing a federal violation that has already been cured through an alternative means. In other words, an injunction should only be maintained if it is necessary to remedy a "continuing violation" of federal law.

In opposing certiorari, the original plaintiff, Miriam Flores, advanced three main arguments. First, she denied that there was any actual circuit split on this issue, arguing instead that the Ninth Circuit had applied the same flexible standard employed by the other circuits in determining whether Arizona had sufficiently remedied its prior violation.

Second, Flores argued that NCLB in fact reinforced the substantive ELL requirements. She reasoned that the NCLB requirements are conditioned upon state acceptance of federal funds and merely add to the mandatory requirements of the EEOA. Moreover, the NCLB's requirements "supplement, not supplant" the level of state and local public funds that would otherwise be spent on ELL programs. And finally, the NCLB and the EEOA have different purposes: the EEOA is an anti-discrimination statute, enforceable through a private right of action, which entitles individuals to certain rights. The NCLB, by contrast, is a federal program that provides no private cause of action and is merely intended to direct schools and assure the general academic success of their students.

Third, Flores argued that the lower courts' orders requiring Arizona to increase ELL funding did not unduly intrude on state educational discretion because they address only funding requirements. The court order is based on Arizona's choice to establish a system in which education funding is determined based on incremental per-pupil funding, including extra funding for each ELL student. The order merely insists that, once Arizona establishes some ELL programs, it must attempt to determine the estimated cost of the programs and fund them reasonably.

Although originally named as defendants in the lawsuit, Arizona and the State Board of Education also filed a brief opposing certiorari. Their brief further argued that the case was an inappropriate vehicle to review the interaction of the EEOA and NCLB requirements with respect to ELL because, in any event, "Arizona's current funding scheme for ELL instruction does not comply with the NCLB and puts Arizona potentially at risk of losing millions of federal educational dollars."

On January 9, the Supreme Court granted certiorari to hear the consolidated cases.

[edit] Merits Briefing

At the merits stage, Horne's brief made two main points. First, he contended that the lower-court order does amount to a practical requirement of specifically earmarked funds, thereby usurping the legislature's discretionary power to appropriately fund and manage the state's education system. He explained that Arizona's violation of the EEOA in 2000 resulted from a confluence of circumstances, including inadequate programming, inadequate texts, unqualified teachers, and overcrowded classrooms. However, by 2007, when petitioners sought relief under Rule 60(b), those conditions had been cured and the state was in compliance with the EEOA. The EEOA requires states to fulfill a certain purpose-removing barriers to ELL advancement, but properly leaves the choice of means of fulfilling that purpose up to the states. In determining that Arizona was not providing an effective ELL program, the Ninth Circuit relied too heavily on test scores and mistakenly compared ELL students to native speakers of English, when in fact other objective measures showed that ELL students in Arizona were progressing at or beyond the national average.

Second, Superintendent Horne argued that the meaning of the general EEOA statute (requiring "appropriate action" in behalf of ELL) can and should be defined by the subsequent NCLB, which has the same goal as the EEOA and spells out ELL requirements with much greater specificity. Courts should adhere to legislative intent as closely as possible in giving effect to statutory requirements, and the NCLB is a clear expression of Congress's intent with respect to states' obligations for advancing ELL. "Appropriate action" in this respect means complying with the particular requirements of the NCLB. Thus, he argued, because the federal government deems Arizona to be in compliance with the NCLB, Arizona should also be considered in compliance with the "appropriate action" requirement of the EEOA. Such an approach does not impliedly repeal the EEOA, but merely alters and/or clarifies its meaning in light of subsequent congressional action.

The Speaker of the Arizona House and the President of the Arizona Senate also filed a brief on the merits as petitioners. The brief reiterated the argument that the Ninth Circuit had applied an unduly rigid standard to petitioners' Rule 60(b) claim in light of Arizona's subsequent compliance with the EEOA. The Ninth Circuit set far too high a bar for petitioners to clear when it required that the basic factual premises of the original injunction must have been "swept away" and the landscape must have been "radically changed" in order for the original injunction to be dissolved. Flexibility is especially important in institutional-reform litigation, because inflexible federal-court orders significantly interfere with local officials' control over local institutions.

Further, the brief argued, the Ninth Circuit incorrectly assumed that federalism concerns relating to local control of schools were "lessened" in this case because the Arizona governor and the state board of education had come to agree with the court's original injunction. But basic principles of federalism cannot be waived by consent, as they exist not for the benefit of public officials but for the protection of liberty and the nation's overall welfare.

Thus, the brief argued, rather than focusing on whether Arizona had complied with the EEOA's broad statutory requirements, the Ninth Circuit had mistakenly fixated on whether the state had complied with the narrow original injunction-which was only one of many ways for Arizona to exercise its discretion to satisfy its federal ELL requirements. Congress had made clear its intent to leave administrative control of state schools up to state and local officials, and determinations concerning funding levels are an important component of local control. There is an ongoing debate-in Arizona and throughout the country-between those who think increased funding is the key to better educational performance, and those who think other types of structural reforms are more appropriate. The EEOA does not take sides in this debate, and states should be given considerable leeway to determine "appropriate action" in the ELL context.

Represented by Sri Srinivasan of O'Melveny & Myers, respondent Miriam Flores began her brief on the merits by arguing that jurisdiction might be lacking because Superintendent Horne and the legislator-petitioners lacked authority to appeal the district court's decision in the first place. She explained that according to the Arizona Supreme Court, litigation is an executive function and legislators cannot represent the state's interest in litigation. Moreover, although Petitioner Horne was an original named defendant and thus directly affected by the injunction at issue in this case, he was sued in his official capacity, which means that the real party in interest is the state-which decided not to appeal the lower court's order.

Next, Flores argued that the Ninth Circuit was well within its discretion to reject petitioners' Rule 60(b)(5) motion to completely dissolve the original court order for funding increases. The original court order held simply that Arizona must increase its ELL-funding level to be rationally related to the ELL programs that the state itself had devised. The state defendants had not appealed that decision, and may not now substitute a 60(b)(5) motion for an appeal. Instead, to win on their motion to dissolve the order, they must show that the facts or the law have changed significantly to bring the state into compliance with the original court order. But this has not happened.

Instead, Arizona law fails to provide sufficient assurance that the state will satisfy its EEAO obligations. First, it cuts off certain types of ELL funding after two years; and second, it offsets against some of a school district's local funding the amount of federal funding it receives. These two "fatal flaws" render the state non-compliant with the original court order.

Finally, Flores argued that the EEOA's compliance standard of "appropriate action" was neither displaced nor qualified by the NCLB. The EEOA standard has been well-settled since the Fifth Circuit's decision in Castaneda in 1981, requiring certain "inputs," including adequate funding, for states to meet their federal obligations. It must be presumed that Congress understood the state of the law regarding the EEOA when it passed the NCLB, and there is nothing to indicate that it intended to displace the EEOA's long-settled legal regime. Indeed, the NCLB specifies that it should not be "construed in a manner inconsistent with any federal law guaranteeing a civil right" and merely makes conditions a state's receipt of federal funding upon the state's ensuring that ELL students make adequate yearly progress. Aside from an overlap of broad subject matter, there is no reason to think that Congress intended this voluntary funding condition to be used to inform the mandatory requirements of the EEOA.

Finally, Arizona and the State Board of Education also filed a brief as respondents. It echoed Flores' argument that current Arizona law does not satisfy the state's obligations under the EEOA, and that the ELL requirements of the NCLB do not alter the standard of EEOA compliance.

[edit] Oral Argument Recap

Arguing for petitioners, Kenneth W. Starr began by asserting that the Ninth Circuit erred in upholding a 2000 federal district court order under the Equal Educational Opportunity Act (EEOA) mandating increased funding for English Language Learning (ELL) in Arizona’s schools. Starr’s basic theme was that Arizona had reformed its ELL system and improved its ELL performance since the original court order, remedying the underlying statutory violation and thereby satisfying the purpose of the order—even if it didn’t follow the order’s specific directive for incremental funding increases.

Justice Souter jumped in with an early question, suggesting that after Arizona’s reforms, the district court had determined in evidentiary hearings that Arizona still failed to provide a level of funding that was reasonably related to the ELL program it had adopted. Starr began to reply that the court had failed to take into account the new circumstances and performance improvements of Arizona’s ELL program, when Justice Breyer questioned how much the state’s ELL performance had actually improved. Starr responded (meeting some resistance) that the performance improvements were substantial, and that this, coupled with structural reforms and some increased funding, were sufficient under a “totality of the circumstances” approach to bring Arizona into compliance with the EEOA.

During his remaining time, Starr pressed the idea that “the original funding judgment was in fact informed by a different methodology and a different set of circumstances” from the ones currently in place in Arizona. Justices Breyer and Souter continued to question whether Arizona’s structural reforms ever satisfied or called into question the federal requirement that the state provide a rational level of funding for its ELL programs. Starr responded that a specific level of funding should not be the benchmark for EEOA compliance, and that the test should be more flexible and results-oriented. In particular, he argued, Arizona’s compliance with the ELL requirements of the results-focused No Child Left Behind Act should help inform the court’s determination of the state’s EEOA compliance.

Prodded by Justice Scalia, Starr also asserted that it was problematic to search for an appropriate level of incremental ELL funding on a statewide level, since the funding need varied across Arizona’s many districts. This underscored his point that “EEOA is not a funding statute” but rather a flexible performance statute, so that the federal courts’ requiring Arizona’s legislature to increase educational funding would be an unintended intrusion on the state’s prerogatives.

Next, Sri Srinivasan began his argument for the respondents by reiterating that Arizona has an obligation to provide a level of funding rationally related to its ELL program, and that it has failed to do so since 2000. Justice Scalia quickly jumped in to ask whether the more recently enacted No Child Left Behind Act had affected the requirements of the EEOA, since both statutes covered the area of ELL. Justice Alito further pressed that even if the NCLB did not displace the EEOA, then it might inform the Court’s interpretation of the EEOA’s vague requirement of “appropriate action” with regard to ELL instruction. Srinivasan replied that it was not workable to read the requirements of both statutes as equivalent.

Justice Alito then asked whether the court below was too narrowly focused on increased funding as the only way for Arizona to satisfy its ELL obligation under the EEOA. Joined by Chief Justice Roberts, Alito asked whether, instead of simply increasing funding as ordered by the district court, the state might not comply with the EEOA by reforming its ELL program to produce results more efficiently and less expensively. Roberts added a question about whether new budgetary constraints might relieve the state’s strict funding duties given the economic climate.

Srinivasan responded that a lower court should consider such factors in determining whether to grant relief from an earlier order. However, he maintained that the court below had properly considered these factors and still determined that Arizona’s level of funding was too low even after its much-touted reforms. At the end of the day, he said, the state had to have an ELL program in place—and it had to demonstrate that it was providing a rational level of funding for the program. And the district court had held an evidentiary hearing to determine that Arizona had failed to provide enough funding.

Justice Kennedy then weighed in with a question about why this case involved the entire state of Arizona, when the original claim had been limited to a single school district. Srinivasan replied that Arizona’s constitution required a uniform level of funding for all of its schools, and that the state’s attorney general had requested that the judgment in this case apply to the whole state. Justice Kennedy dwelled on this point, expressing uneasiness with the idea that if a federal court ordered more funding for one struggling school district, funding would have to be increased proportionally for every district in the state, even those districts with no need for it. Chief Justice Roberts raised the specter of this being a way for the state’s governor and attorney general to bypass the democratic process: Instead of doing the hard work of seeking political support for increased education funding statewide in tough financial times, they could simply employ the courts to order more funding without having to face electoral accountability.

Srinivasan then returned to the issue of NCLB, and said that compliance with its ELL requirement cannot satisfy the EEOA’s ELL requirement, because the NCLB only requires an ELL plan but does not require a firm implementation requirement. The EEOA, by contrast, is a civil-rights statute. It is intended to guarantee the right of education, so it must include some substantive program and funding beyond the mere testing plan required by the NCLB.

Next, Assistant to the Solicitor General Nicole Saharsky argued briefly as an amicus curiae supporting the respondents on behalf of the United States. She emphasized that the district court below had held evidentiary hearings after Arizona’s reforms, and determined that the state was still not in compliance with the EEOA. Pressed by Justice Alito as to why the district court didn’t look beyond incremental funding to other measures of ELL effectiveness, Saharsky responded that the state itself measured funding incrementally, and that the contribution to its ELL program from its general funds was insufficient to make up the deficit in the state’s EEOA obligation. Chief Justice Roberts asked whether this approach was not unduly inflexible given the importance of state discretion on education policy, and Saharsky replied that Arizona retained a great deal of structural and programmatic flexibility, as long as it could demonstrate that it was providing sufficient funding for whichever ELL arrangement it settled on.

During his rebuttal, Kenneth W. Starr emphasized that the lower court had applied an unduly strict standard in considering whether Arizona’s changed circumstances should entitle the state to relief from the original district court order. He also stressed the “incredible intrusive nature of a statewide funding remedy,” and asserted that the factual findings in the case were not adequate for federal courts to enforce a statewide funding mandate for ELL across Arizona’s various and diverse school districts.

[edit] Opinion Analysis

[edit] Links and further information

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