Horne v. Flores; Speaker of the Arizona House v. Flores (consolidated)


1. Whether increasing general funding for English Language Learner Programs in Arizona by millions of dollars, hiring more qualified teachers, decreasing class size, and creating new programs satisfies the "substantial change of fact" requirement necessary to be granted relief under Rule 60(b)(5) even when the court feels that the funding is still inadequate.

2. Whether the subsequently passed No Child Left Behind Statute should be used to help define the ambiguous "appropriate action" standard of the Equal Education Opportunities Act, or whether the two statutes serve different purposes and therefore should not be treated as informing one another.

Oral argument: 
April 20, 2009

Since 1992, Miriam Flores has been claiming that Arizona does not provide equal education opportunities to students who do not speak English as their first language, in violation of the Equal Education Opportunities Act of 1974 ("EEOA"), 20 U.S.C. § 1701 et seq. In 2000, a federal district court, finding that Arizona's English Language Learners ("ELL") programs were underfunded, agreed with Flores and ordered Arizona to provide adequate funds to their ELL programs. Arizona did not comply with the order to the court's satisfaction, but did improve their ELL programs through other, managerial type mechanisms. The Arizona House Speaker and Senate President sought Rule 60(b) relief from the court order, claiming that the improvements to the schools constituted "appropriate action" as required by the EEOA. The United States Court of Appeals for the Ninth Circuit denied them relief and now the Supreme Court will have to decide (1) whether Arizona's improvements to its ELL programs, although not achieved through court-ordered sufficient funding increases, constituted "appropriate action" and thus were sufficient for Rule 60(b) relief from the court order, and (2) in determining this question, whether the court should define "appropriate action" using the No Child Left Behind Act of 2001's specific standards for the implementation of adequate English Language Learner programs.

Questions as Framed for the Court by the Parties 

Questions Presented in 08-289

1. By interpreting the phrase "appropriate action" under Section 1703(f) of the Equal Education Opportunity Act as a requirement that the State of Arizona provide for a minimum amount of funding specifically allocated for English Language Learner programs statewide, did the Ninth Circuit violate the doctrine prohibiting federal courts from usurping the discretionary power of state governments to determine how to appropriately manage and fund their public education systems?

2. Should the phrase "appropriate action" as used in Section 1703(f) of the Equal Education Opportunity Act be interpreted consistently with the No Child Left Behind Act of 2001, where both Acts have the same purpose with respect to English Language Learners and the NCLB provides specific standards for the implementation of adequate English Language Learner programs, but the EEOA does not?

Questions Presented in 08-294

1. Whether a federal-court injunction seeking to compel institutional reform should be modified in the public interest when the original judgment could not have been issued on the state of facts and law that now exist, even if the named defendants support the injunction.

2. Whether compliance with NCLB's extensive requirements for English language instruction is sufficient to satisfy the EEOA's mandate that States take "appropriate action" to overcome language barriers impeding students' access to equal educational opportunities.


In the small Mexican border city of Nogales, Arizona, the vast majority of primary through high school students are Hispanic, and Spanish is their primary language. During at least some portion of their academic careers, most of these students are classified as English Language Learners ("ELL") and are enrolled in ELL programs to help them learn English. In 1992, Miriam Flores, representing a class of "all minority ‘at risk' and limited English proficient children . . . . enrolled in Nogales Unified School District" ("NUSD"), sued Arizona, the state Superintendent of Public Instruction, and the state Board of Education for underfunding mandatory ELL programs in public schools. Flores claimed that in doing so, the school district and State were violating the Equal Education Opportunities Act of 1974 ("EEOA"), 20 U.S.C. § 1701 et seq.

EEOA provides that a State must provide equal educational opportunity to all students, regardless of their national origin, by taking "appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs." Furthermore, the Supreme Court has stated that to not provide for the needs of non-English speaking students would cause their education to be completely meaningless.

Public school funding in Arizona is designed to be equal across all districts, regardless of property values, though local districts may increase revenues through county taxes. On top of the state baseline amount per "typical" student, ELL students require additional, "incremental costs" in order to have a meaningful education. In 2000, the district court awarded a declaratory judgment in Flores's favor, finding that Arizona's funding specifically for ELL students did not adequately cover these incremental costs, resulting in overcrowded classrooms, a lack of qualified teachers, and insufficient teaching materials for ELL students.

Arizona did not comply with the declaratory judgment, but did change the structure of ELL programs by replacing bilingual education with English immersion education, and increased general funding to all public school programs. Flores again moved for post-judgment relief; the district court found that this funding increase was not adequate for ELL programs, and ordered Arizona to provide adequate funding specifically for ELL programs.

After several more declaratory judgments and attempts by Arizona to adequately increase ELL funding, the district court found Arizona to be in civil contempt, resulting in Arizona accruing over $20 million dollars in fines. In March, 2006, the Superintendent, joined by the Speaker of the Arizona House of Representatives and the President of the Arizona Senate, moved for relief from judgment under Federal Rule of Civil Procedure 60(b)(5), claiming that Arizona had complied with the district court's orders. The United States Court of Appeals for the Ninth Circuit removed the fines and ordered the district court to hold an evidentiary hearing, noting that the ELL programs had changed so significantly over the previous six years that the original court order may no longer apply.

Following an eight-day evidentiary hearing, the district court found that although Arizona had, indeed, significantly improved its ELL infrastructure, its ELL students continued to lag behind non-ELL students. Improvements included increasing overall funding, reducing classroom sizes, providing ongoing training to teachers, ensuring that all teachers were certified in ELL teaching methods, and developing state-wide proficiency standards and standardized testing to better classify students as ELL or English proficient. However, the ELL students continued to test poorly, sometimes falling far below Arizona's own set academic standards and failing to meet minimum passage rates of certain "annual measurable objectives" required by the No Child Left Behind Act of 2001 ("NCLB"), 20 U.S.C. §6301 et seq.

The district court stated that the improvements in Nogales specifically were not good enough, and were probably related more to successful management than to adequate state funding. The court went on to say that ELL-specific costs alone continued to not cover actual ELL program costs in NUSD, and NUSD had only been able to meet actual ELL programs costs by diverting other funds. Ultimately, the district court concluded that the funding system was not rationally related to the actual costs of ELL programs, that Arizona remained out of compliance with the EEOA, and that it had not shown either compliance with the original court order or changed circumstances sufficient to warrant relief from the order.

On February 22, 2008, the United States Court of Appeals for the Ninth Circuit affirmed the district court's judgment, and the Speaker of the Arizona House of Representatives and the President of the Arizona Senate separately appealed to the Supreme Court. The Supreme Court consolidated the two appeals and granted certiorari on the questions of whether the circumstances have so changed in Arizona as to warrant relief from the district court's judgment under Rule 60(b), and whether compliance with NCLB's specific standards regarding what constitutes adequate ELL programs is sufficient to satisfy the EEOA's requirement of states to take "appropriate action" to overcome language barriers preventing students' access to equal education opportunities. S


Should Relief be Granted under Rule 60(b)(5)?

Arizona was found to be in violation of the Equal Education Opportunities Act of 1974, 20 U.S.C. § 1703(f) ("EEOA") for failing to take appropriate action to fund English language classes for non-English speakers and provide an equal educational opportunity to all students. Specifically, Arizona violated the EEOA because its English Language Learner ("ELL") programs and educational materials were inadequate, its teachers unqualified, and its classrooms overcrowded. Arizona now argues that since these deficiencies have all been cured, it should be granted relief under Federal Rule of Civil Procedure 60(b)(5) ("Rule 60(b)(5)") which allows relief from judicial oversight where the judgment has been satisfied and the violation cured. Generally, if the party seeking relief can show a significant change in fact or law such that the original decree would not have been issued, 60(b)(5) relief is appropriate.

Petitioners Superintendent of Public Instruction of the State of Arizona ("Horne"), Speaker of the Arizona House, and President of the Arizona Senate (collectively "Arizona Elected Officials") argue that the evidence shows that there has been a significant change in facts that warrants reconsideration of the judgment. They point out that the State has increased general funding for education by millions of dollars, much of which went directly to providing remedial and tutoring programs for ELL, as well as to hiring better teachers and decreasing class sizes. Arizona has also instituted structural reforms and monitoring programs which have eliminated the deficiencies, and even set up a system to ensure that all students are meeting the performance standards. According to Horne, statistics show that this new program is working because many more students are achieving proficiency and participating equally in school.

While Respondent Miriam Flores ("Flores") concedes that Arizona has made some changes to try to correct their violation of the EEOA, they argue that the changes are not significant enough to warrant relief under Rule 60(b)(5). Flores points out that Rule 60(b)(5) cannot be used like an appeal to try and attack the validity of the judgment, but that Flores instead must establish that there has been a significant change since the judgment in either the facts or law that warrant a revision. Further, since Horne and the Arizona Elected Officials are seeking to establish that the purpose of the judgment has been satisfied and that the judgment should therefore be vacated completely, it is not enough to show merely that there has been some improvement, rather they must prove that the violation has been "fully corrected and unlikely to recur." Flores points out that all of the factual changes highlighted by Horne came from a single county's schools, and since the judgment was state-wide, showing changes in one county, even if they are significant, this is not enough for relief. Further, Flores stresses that even looking at just the schools in that county, the test scores show that there remain serious deficiencies in many of the grade levels. For example, many of the ELL students are taking much longer than average to become English proficient and many are not graduating.

Finally, while Horne argues that Arizona has complied with the district court's order by increasing the funding for its schools, none of these funds are specifically earmarked for EEOA compliance. Flores contends that these increases in general funds do not count, because redirecting any of those funds to ELL students would violate Arizona's Constitution by creating disparities across schools. That being the case, the current budget is not sufficient to pay for qualified teachers and teacher aides or to reduce class sizes, all of which are factors considered essential to the program's success.

Does the Ninth Circuit's Decision Violate Principles of Federalism?

The EEOA requires that states take "appropriate action" to overcome language barriers to equal education. Since this standard is not further defined, Horne argues that it can be satisfied by any action that would further the statute's purpose. Horne points out that when there are numerous ways for a State to comply with a statute, the standard of judicial review for the method selected is highly deferential. Arizona Elected Officials emphasize the need for federal courts to respect that institutional reform is an area reserved to state and local governments, and to afford those officials substantial latitude and discretion in their decision making so long as the violation is cured. Horne argues that it would be contrary to the principles of federalism and judicial restraint for the court to require that Arizona's violation only be cured through an increase in earmarked funding. Since that requirement was established by the Ninth Circuit and not the EEOA, Arizona Elected Officials contend that the Court must reconsider whether it is necessary in light of all the other improvements. Horne feels that the combination of better management of resources, increased oversight, new programs and some additional funding has succeeded in achieving the purpose of the statute. If so, then the additional requirement of earmarked funding would be inappropriate since the language of EEOA itself specifically says that federal courts cannot impose on the states any more than necessary to cure the violation.

Flores, on the other hand, argues that the court's remedy does not violate principals of federalism because it leaves the State a lot of room to determine the contours of the program it wishes to employ as well as the costs required for that program. According to Flores, the only requirement of the court was that the funding "bear a rational relationship to the costs the State itself determined necessary to implement the programs the State itself devised." It does not tell the State how much to spend or what kind of program to implement; it asserts that the State is to determine merely what works best and to spend the appropriate amount to cover the cost of that program. Indeed, the State makes all of the decisions, and as long as the funding bears a "non-arbitrary relationship to program costs" it will be in compliance. Flores argues that the reason the State still fails to be in compliance with the court order is that it never bothered to determine what was necessary for a successful ELL program, or how much that would cost, and never developed a system to fund it.

Should the EEOA standard be read in light of No Child Left Behind?

According to the Arizona Elected Officials, when statutes are part of the same statutory scheme, it is common practice to use a subsequent, more detailed statute to help define ambiguities and give meaning to the earlier statute. Since EEOA and No Child Left Behind ("NCLB") seek to achieve the same purpose, and EEOA's "appropriate action" standard is vague, Horne argues it should be defined by the much more specific requirements set forth in NCLB. Horne further contends that failing to read the statutes in conjunction would subject the State to inconsistent standards. Since the federal government deems Arizona to be in compliance with NCLB, it should also be deemed to be in compliance with EEOA.

Horne stresses that contrary to the Ninth Circuit's holding, this does not mean that NCLB would completely replace EEOA, but rather that it would clarify some of the ambiguities in the EEOA's standards. Nothing contained in EEOA that is not in NCLB would be affected. Further, Arizona Elected Officials state that it is much more effective to rely on the precise, detailed procedures laid out by Congress in NCLB when determining compliance, than it would be to allow courts the freedom to try to interpret "appropriate action" on a case by case basis.

Flores counters that the two statutes are too different to be read as informing each other. For example, NCLB only focuses on the outputs of the program, only monitors the progress of a small percentage of ELLs, and does not provide for a private right of action in the event of a State's violation, whereas EEOA focuses on the inputs, specifically requires assistance for all ELLs, and does provide for a private right of action to enforce its mandates. Flores argues that these differences in scope are evidence that NCLB was not meant to displace the already established standards for EEOA compliance. She further argues that NCLB cannot be read to inform EEOA: the NCLB is an optional statute, and only states wishing to receive federal funding for education must comply with it; therefore, it could not have been intended to inform mandatory statutes.

According to Flores, while the language of EEOA is vague, case law has subsequently elaborated a clear standard for compliance and nothing in the text of NCLB suggests that it was meant to replace that standard. On the contrary, Respondent State of Arizona ("Arizona") points out that the language of NCLB says that it is not to be construed in a manner inconsistent with any federal law, and argues that this suggests that it was not intended to amend them either. Flores also points out that nowhere in NCLB, a very detailed statute, did Congress say that it was establishing a standard that could be used to determine compliance with EEOA as well. Flores argues that it is not uncommon for new statutes to create parallel or overlapping remedies as opposed to amending prior statutes. Contrary to Horne's argument, the two statutes are not in conflict such that it would be difficult or confusing to comply with both.


Have the improvements Arizona has made to its ELL programs been sufficient to grant them relief under Rule 60(b), even though the improvements were achieved mostly by means other than through increased English Language Learners ("ELL") funding, or does Arizona have to provide what the United States Court of Appeals for the Ninth Circuit considers to be adequate funding for ELL programs in order to be granted relief? Should the Equal Education Opportunities Act of 1974's ("EEOA") "appropriate action" clause be interpreted in light of the No Child Left Behind Act of 2001's ("NCLB") specific standards regarding what constitutes adequate ELL programs?

Petitioners, Speaker of the Arizona House of Representatives ("House Speaker"), President of the Arizona Senate ("Senate President"), and Superintendent of Public Instruction of the State of Arizona ("Horne"), argue that changes in the underlying facts and laws require the court order to be reevaluated, and that the steps Arizona has taken to improve the ELL program are sufficient to comply with the EEOA. Petitioners also argue that complying with NCLB's specific requirements for ELL programs constitutes "appropriate action." Respondents, State of Arizona, Arizona State Board of Education, and Miriam Flores, argue that the Court of Appeals correctly applied Federal Rule of Civil Procedure 60(b) ("FRCP") in denying petitioners relief. The House Speaker, Senate President, and Horne also argue that compliance with NCLB is not equivalent to compliance with the EEOA.

Amici that support the House Speaker and Senate President argue that state legislatures, not the courts, are in the best position to make effective policy decisions concerning education programs, and that therefore, the courts should not mandate only one type of remedy-here, funding-when the legislature may determine that other methods are more effective. Specifically, the Pacific Legal Foundation points out that the local educational agencies are more familiar with the needs of the students in their districts, and thus should be allowed to choose how to address those needs. S The American Legislative Exchange Counsel argues that long-term oversight and interference by the courts hampers a state's ability to address changing circumstances in the local area. It contends that by taking away the state's flexibility and ability to react to changing conditions and circumstances in a timely manner, the court is essentially making the legislative branch superfluous. Furthermore, Education-Policy Scholars argue, past attempts by courts to address school-performance issues with purely funding-based remedies have proven unsuccessful. They further contend that insistence on these unsuccessful funding-based remedies actually forces the courts to stay involved far longer than necessary because the schools are prevented from getting out of ineffective programs.

The National School Boards Association, in support of Respondents, agrees that local control of public education is indeed important, but argues that the District Court's orders actually do leave "ample discretion" to local authorities. It points out that the District Court merely required Arizona to provide the means necessary for local school districts to be able to provide adequate ELL programs. It argues that "not only did the District Court defer to Arizona's chosen method of ELL instruction, but it also tailored its limited remedy to fit the overall education funding scheme adopted by the State." It asserts that the District Court's orders for Arizona to provide adequate funding to the local school districts furthers the interests of local control because without the funding, the local districts lack the necessary tools to exercise their control.

Other amici supporting Petitioners argue that the Ninth Circuit's focus on funding hurts the students it is intending to help. American Unity Legal Defense Fund argues that requiring a state to spend a certain amount of money on each ELL student gives schools an incentive to keep students in ELL programs longer than necessary to receive more funding. Eagle Forum takes a more indirect approach and stresses the importance of teaching in a single language; arguing that bilingual education perpetuates students' lack of English skills and slows their progress. It concludes that Arizona's action of changing its ELL programs from bilingual instruction to English immersion is a meaningful remedy worthy of Rule 60(b) relief.

In contrast, Washington Lawyer's Committee argues, in support of Respondents, that bilingual education is actually the better method for providing ELL students with equal access to education. It cites multiple studies that have found that ELL students who are provided with bilingual education tend to perform far better than ELL students in English-submersion classes in non-English subjects. It further contends that bilingual education is the better method of closing the language gap between ELL students and native English-speaking students in non-English subjects. It again points to multiple studies that have found that ELL students taught in bilingual programs with slowly increasing amounts of exposure to English tend to close the language gap and with their non-ELL classmates and even surpass them far faster than ELL students taught solely in English immersion classes.


In Horne v. Flores the Court will have to decide whether federal courts, in seeking to enforce the Equal Education Opportunities Act of 1974 ("EEOA") can require a State to provide a certain amount of funding for its English Language Learners programs or whether taking steps which the State deems appropriate to improve the programs is sufficient. The Court will also have to determine how the EEOA's "appropriate action" clause is be interpreted in light of No Child Left Behind Act of 2001's specific standards regarding what constitutes adequate ELL programs. This case will have major implications for states in determining their education programs and for the students that attend those schools.

Edited by 


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