Stanford student Anthony Dick previews today's argument in Horne v. Flores, to be argued at 11 a.m. The briefs in this case can be found at the SCOTUSWiki page here.

I. 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.

II. 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.

III. 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.

IV. 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.

Posted in Horne v. Flores; Speaker of the Arizona House of Representatives v. Flores, Uncategorized