Stanford student Anthony Dick summarizes Monday’s argument in Horne v. Flores. The briefs in this case can be found at the SCOTUSWiki page here.

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.

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